Accepted the Italian position in Case C-352/22 in a landmark judgment[1] of the Court of Justice of the European Union, a pillar protecting the protection of human rights and the binding recognition of refugee status in the judicial space of the Union.
As reconstructed in our previous contributions , by order filed on 1.06.2022, the Superior Court of the Land of Hamm made a reference to the CJEU for a preliminary ruling, asking whether the final recognition of a person’s refugee status under the Geneva Refugee Convention by a member state of the European Union is binding, with regard to the extradition procedure to another member state requested for surrender, due to the obligation of conforming interpretation of national legislation established by Union law, with the consequence that the extradition of such a person to the third country or country of origin is necessarily excluded until the revocation or expiration of the refugee status.
On Oct. 19, 2023, the Advocate General had expressed his position, leaning toward the view that the two procedures were deemed autonomous and non-interfering, hence the non-binding nature of a decision granting refugee status versus a subsequent request for extradition.
In its ruling issued last June 18, the Court resolved the issue before it by affirming the primacy of the rights and guarantees enjoyed by refugees and the obligation of EU member states to ensure the effective protection of those rights.
The premise of the ruling
After a concise reconstruction of the relevant regulatory context (Geneva Convention, European Convention on Extradition, Dir. 2011/95, Dir. 2013/32, German law) and the issue before it, the Court first specifies the perimeter within which the correct solution will be sought.
It is clarified, in fact, that Member States shall grant refugee status, pursuant to Article 2(e)[2] of Directive 2011/95, to a third-country national or stateless person who is eligible to be considered a refugee, without having a discretionary power in this regard; therefore, the recognition by a Member State of refugee status is recognitive and not constitutive of refugee status. This means that the refugee becomes a beneficiary of international protection and has all the rights and benefits under Chapter VII of the aforementioned Directive. Similarly, the member state that initially granted refugee status subsequently may withdraw it if certain preconditions are met.
The Court then goes on to specify that, at the current state of the Common European Asylum System, the Union legislature has not yet fully achieved the objective at which Article 78(2)(a) TFEU is aimed, namely a uniform asylum status for third-country nationals valid throughout the Union. In particular, the Union legislature has not yet established a principle that Member States would be required to automatically recognize refugee status decisions made by another Member State, nor has it specified how such a principle would be implemented. Therefore, at present, member states are free to make the recognition of the totality of refugee status rights in their territory conditional on the adoption by their competent authorities of a new refugee status decision.
In addition, it is necessary to determine whether, under the law of the Union on international protection, a decision granting refugee status taken by one Member State can produce a binding effect with respect to an extradition procedure of the same refugee conducted by another Member State, such that the latter must refuse surrender by reason of the existence of such a decision.
In order to resolve this issue, according to the Justices, it is not sufficient to take into account only the two Directives 2011/95 and 2013/32 but it is necessary to recall all relevant Union legislation, including the provisions of the Charter of Fundamental Rights of the European Union[3], including in particular Articles 18 and 19[4].
Well, Art. 1 of Directive 2013/32 aims to establish common procedures for the purpose of granting and withdrawing international protection status under Directive 2011/95. Art. 9 recognizes the right of the applicant for international protection to remain in the territory of the member state concerned during the procedure for the examination of his or her application, authorizing member states to derogate from this right only in the cases provided for therein (which include that of an extradition of the applicant to a third state). However, as acknowledged by the Advocate General himself in his opinion, this hypothesis concerns only the case of an extradition occurring during the procedure of examination of an application for international protection, while the article does not regulate the case of an extradition requested after the granting of such protection by a member state.
On the other hand, Art. 21 of Directive 2011/95 recalls the duty of all member states to respect the principle of “nonrefoulement” in accordance with international obligations. According to the Court, “That provision thus constitutes a specific expression of the principle of non-refoulement guaranteed, as a fundamental right, by Articles 18 and 19(2) of the Charter, read in conjunction with Article 33 of the Geneva Convention.”
Since a Member State’s decision to grant an extradition request issued by the State of origin against a person who has been granted refugee status in another Member State would have the effect of depriving him or her of the rights and benefits provided for in Directive 2011/95, it follows that the extradition procedure conducted in the first Member State falls within the implementation of Union law, within the meaning of Article 51(1) of the Charter[5]. Consequently, the state in charge of examining the extradition request will be obliged to respect the fundamental rights enshrined in the latter, including those guaranteed by Articles 18 and 19 on asylum.
The decision
In light of these normative premises, it is necessary to determine whether the combined provisions of Art. 21 of Directive 2011/95 and Articles 18 and 19 of the Charter prevents extradition subsequent to the granting of refugee status.
Given that extradition will have to be denied in any case when there is a real risk that the requested person will be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment, it is up to the member state to make this assessment and to ensure that applicants and beneficiaries of international protection enjoy the effective enjoyment of the right enshrined in the Geneva Convention and in the Union’s rules.
And in fact, as also pointed out by the Advocate General, as long as the person requested to be surrendered possesses the status of a refugee, his or her extradition to the third country of origin would have the effect of depriving him or her of the effective enjoyment of the right conferred on him or her by Article 18 of the Charter. Therefore, as long as that person possesses the qualifications to enjoy that status, Article 18 of the Charter prevents his extradition to the third country from which he has fled and in which he risks persecution.
Such appears to be the condition of the citizen who is the subject of the case examined by the Court: and in fact, as long as there is a risk that he will suffer in the territory of his third state of origin, from which the extradition request originates, the political persecution on account of which the Italian authorities have granted him refugee status, his extradition to that third state will be excluded under Article 18 of the Charter.
In this regard, the Justices point out that the mere circumstance (pointed out by the German court) that the prosecution for which the subject’s extradition was requested was based on facts other than such persecution cannot be sufficient to exclude this risk.
In addition, Art. 19 of the Charter prohibits in absolute terms the removal of a person to a state where there is a serious risk of being subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. As a result, where the person concerned by an extradition request invokes a serious risk of inhuman or degrading treatment in the event of extradition, the requested member state will not be able to take into consideration only the declarations of the requesting third state or the latter’s acceptance of international treaties (which only guarantee in principle respect for fundamental rights) but will have to rely on objective, reliable, precise and appropriately updated elements, which may result from international judicial decisions, such as judgments of the European Court of Human Rights, or judicial decisions of the requesting third State as well as decisions, reports and other documents prepared by the bodies of the Council of Europe or belonging to the United Nations system.
This means that the fact that another member state has granted the person complained of refugee status is a particularly serious element that the competent authority of the requested member state must take into account.
Therefore, a decision granting refugee status, provided that this status has not been revoked by the member state that granted it, must lead that authority to refuse extradition, pursuant to these provisions.
According to the European Judges, in fact, “the Common European Asylum System, which includes common criteria for identifying persons genuinely in need of international protection […] is based on the principle of mutual trust, whereby it must be presumed, save in exceptional circumstances, that the treatment of applicants for international protection in each Member State is in conformity with the requirements of Union law, including those of the Charter, the Geneva Convention and the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on November 4, 1950.”
If the requested member state granted the extradition of the refugee status beneficiary, it would effectively circumvent the entire discipline by depriving the person concerned of the effective enjoyment of the rights and protection guaranteed to him or her by the Geneva Convention and Union rules.
In the light of these very clear considerations, therefore, the Court of Justice resolves the question submitted to it by ruling that “where a third-country national who has been granted refugee status in one Member State is the subject, in another Member State in whose territory he resides, of a request for extradition from his country of origin, the requested Member State may not, without having initiated an exchange of information with the authority which granted that status to the person claimed and in the absence of revocation of that status by that authority, authorize extradition“.
A landmark ruling in European Union humanitarian and criminal law. Once again the Court of Justice balances, in terms of guarantees and protection of human rights, the judicial and political sovereignty of individual member states in international judicial cooperation relations and, once again, intervenes in a prosthetic key to fill a serious gap in the European criminal procedural system; a system today entirely projected to a common judicial space with full and effective circulation of judicial measures (from arrest warrants to judgments), but which is still far from establishing with primary legislation the full and effective circulation(rectius protection) of human rights and freedoms.
Prof. Avv. Roberto De Vita
Avv. Valentina Guerrisi
References
[1] Download the text of the judgment here.
[2] And this is by virtue of Art.
13 of Dir. 2011/95. [3] https://www.europarl.europa.eu/charter/pdf/text_it.pdf[4] Art. 18 – Right to asylum; Art. 19 – Protection in the event of removal, expulsion and extradition. [5] Art. 51 – Scope of application.
1.
The provisions of this Charter shall apply to the institutions and bodies of the Union with due regard for the principle of subsidiaritỳ as well as to the Member States exclusively in the implementation of Union law.
Therefore, the aforementioned entities shall respect the rights, observe the principles and promote their implementation in accordance with their respective competences.
[…].
