Extradition of nationals not always out of the question

It was recently reported in the media that an extradition treaty was concluded between Belgium and the United Arab Emirates. However, this has not yet led to an extradition because most of the requests for extradition predate the entry into force of the extradition treaty.

But, of course, there are other reasons for refusing an extradition, including the fact that the person, whose extradition is requested, is a national of the country in which that person resides and which therefore must decide whether or not to grant the extradition. For example, Belgium is not obliged to extradite Belgians to another country.

This contribution covers those concrete ground for refusal and then more specifically in the context of extraditions between member states of the Council of Europe (read: not the EU but its bigger brother, including countries such as Russia and Turkey).

European extradition treaty

At the Council of Europe level, there has been an overarching extradition treaty since 1957: the European Convention on Extradition (not entirely surprisingly).

That treaty applies to all members of the EU, but also, for example, to Turkey, Russia, the United Kingdom,... In all, 47 countries.

Within the EU, admittedly, there is also another, important standard relating to the European Arrest Warrant, with the result that the 1957 Convention is less important between EU member states. Then again, between EU member states on the one hand and Council of Europe member states on the other, or between non-EU Council of Europe member states, the 1957 Convention is the main source.

Article 6 of that treaty, more specifically regarding the extradition of nationals, reads as follows:

"Each Contracting Party is authorized to refuse the extradition of its nationals."

Thus, in general, a member state is free to decide whether or not to extradite a national. However, practice shows that this rarely happens.

In such a case, the refusing state is more likely to take charge of the prosecution or sentence execution (depending on what extradition is requested for).

Subject

But what does that mean, "a national"? Well, the International Court of Justice in The Hague (the court of the United Nations) ruled on this as early as 1955, in the so-called Nottebohm-judgment.

That case concerns a certain Friedrich Nottebohm, a German national, who had migrated to Guatemala in 1905 to start a business there. At the beginning of World War II in 1939, Mr. Nottebohm decided to obtain Liechtenstein citizenship. He paid some sums and provided some documents (with the result that he did not have to meet any other conditions and did not have to give up his German nationality) and then, in 1940, moved back to Guatemala. When Guatemala decided to declare Germany the enemy in 1943, all German nationals, including Mr. Nottebohm, were imprisoned. When he was released back in 1946, Mr. Nottebohm noted that all his property had been confiscated by Guatemala, based on legislation promulgated during World War II. Liechtenstein subsequently filed a complaint against Guatemala on Mr. Nottebohm's behalf.

However, before the ICJ could assess the actual arguments regarding a violation of international law, Guatemala raised the point that Mr. Nottebohm was not actually a citizen of Liechtenstein and therefore Liechtenstein should not have been allowed to file a complaint on Mr. Nottebohm's behalf.

The court ultimately vindicated Guatemala:

"It is clear from the facts ... that there was no bond of affection between Nottebohm and Liechtenstein and that, on the contrary, there was a long-standing and close connection between him and Guatemala, which was in no way weakened by his naturalization. This naturalization was not based on any real connection with Liechtenstein and did not bring about any change in the life of the person to whom it was granted in exceptional circumstances... It lacked the authenticity required for such an important act... it was granted without regard to the concept of nationality commonly used in international relations. Liechtenstein citizenship was granted to enable Nottebohm to substitute his status as a national of a belligerent state for that of a national of a neutral state, for the sole purpose of thus coming under the protection of Liechtenstein, but not for the purpose of intermingling with the traditions, interests and way of life of Liechtenstein, nor of assuming the obligations - with the exception of tax obligations - and exercising the rights attached to the status thus acquired. Guatemala is therefore under no obligation to recognize a nationality granted in such circumstances."

In other words, the Court here held that there was a authentic relationship should exist between the country and the person assigned the nationality of that country.

Relevance of the Nottebohm ruling over the years

It is true, however, that the judgment above has been met with a great deal of criticism in the years since. The judgment would in no way represent the internationally accepted way of reasoning. Similarly, as recently as 1990, the EU Court of Justice decided in the Micheletti-case.

Given the enormous amount of criticism, the Nottebohm-judgment for a long time into the background when nationality and nationals were discussed.

Until the European Commission was faced with so-called CIPs, Citizenship by Investment Programs.

Briefly, that concept means that some EU member states, such as Bulgaria, Cyprus and Malta, grant their nationality and thus EU nationality (more easily) to individuals who pay a certain, relatively high sum.

In Malta, more specifically, it is a sum of EUR 650,000 with which one more easily acquires Maltese and, consequently, European nationality (and all the additional benefits).

Accordingly, a 2019 European Commission report on citizenship and residence arrangements for investors in the EU warns that CIPs can lead to potential security gaps as a result of granting citizenship without prior residence, as well as risks of money laundering, corruption and tax evasion associated with citizenship or residence by investment AND that normally an authentic link is required before nationality can be granted.

Conclusion

Decades after the ruling, the Nottebohm-judgment thus suddenly gained more acclaim again, with the result that refusals of extraditions due to the nationality of the claimed person are also placed in a different light.

For example, countries such as Turkey grant citizenship to individuals who purchase a home of more than $250,000 or who make an investment of $500,000.

The question, however, is whether a person who acquired Turkish nationality in such a way will be able to invoke its nationality to contest extradition from Turkey, given possible non-compliance with the Nottebohm-requirement of an authentic bond.

How the approach to this issue unfolds further, admittedly, only the future will tell.

If you would like more information about this, please feel free to contact us at info@bannister.be or 03/369.28.00.