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01 February 2015
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I'm a Legal Alien, I'm a Legal Alien: Extraditing Foreign Citizens from Austria

How do EU citizens living in Austria quickly become “foreigners” when it comes to extradition requests from third countries; for example, in relation to US corruption or antitrust charges?

Can you be extradited from Austria?

In the recent past, Austria has regularly had to deal with prominent extradition requests. One of the most spectacular cases was Kazakhstan’s extradition request of its ex-ambassador for an alleged murder. However, the question whether Austria is a safe harbour or the first step on the way to prison in a third country not only arises in such prominent cases but has become increasingly important for managers or employees confronted with transnational bribery or anti-trust investigations.

When assessing if extradition from Austria is possible, the first step is to identify whether the extradition is being sought by an EU member state.

EU member states may issue a European Arrest Warrant (EAW) requesting a member state to apprehend and hand over a criminal suspect for criminal prosecution or enforcement of a custodial sentence. The Austrian extradition regime to other EU member states is governed by the federal law on judicial cooperation in criminal matters with the member states of the European Union (EU-JZG).

With the EAW, the EU intended to increase the efficiency of extradition throughout the EU by abolishing the need to pass extradition request through diplomatic channels and by harmonising the legal tests for extradition. As opposed to prior extradition regimes, for a wide variety of crimes the test for double criminality (ie, the crime is punishable in both countries) was abolished. The second innovation is that – as a general rule — Austrian citizens must be extradited if their crime is not subject to Austrian jurisdiction.

But what happens if a country that is not a member to the EU seeks extradition from Austria?

If the requesting state is a member to the Council of Europe (eg, Russia), the extradition regime between Austria and the requesting state is governed by the European Convention of Extradition from 13 December 1957 and its additional protocols (if ratified). However, this multilateral treaty is also available for signature of non-Council members: Israel, South Africa and South Korea have also ratified the convention.

Under the Convention, extradition is granted for offences punishable under the laws of both countries (double criminality) with imprisonment of at least one year, but generally excludes extradition for political, fiscal or military offences. Further the parties may refuse to extradite their own nationals.

Further Austria has entered into bilateral extradition treaties that either establish an extradition regime between these countries (as they are not EU member) or the Extradition Convention (eg, Australia, Canada, US), or that specify the rights and obligations from multilateral treaties.

For extradition requests from countries not a party to a multilateral convention (eg, Brazil) or that have concluded a bilateral treaty, the Austrian Act on extradition and judicial assistance (Auslieferungs- und Rechtshilfegesetz; ARHG) applies. The ARHG establishes certain principles that must be considered when a state requests extradition. Most importantly, the person may not be an Austrian national and it must be ensured that he or she receives a fair trial (and punishment, if the case).

Practical impacts

In brief this means that, if extradition is requested by a non-EU member state, a refusal to extradite without going into the merits of the case is possible only if the person is an Austrian citizen. Being an EU citizen with a permanent residency in Austria is not enough. Thus, for example, a German national staying or even permanently residing in Austria could be extradited from Austria to the US. The same is true for an Austrian CEO living in Germany. While his German colleague charged with the same offence would be “safe”, the Austrian citizen may be extradited to the US.

In light of EU fundamental freedoms, this result is surprising and particularly relevant for transnational antitrust or corruption investigations by US authorities.

If extradition is sought by a non-EU member state, a refusal to extradite without going into the merits of the case is possible only if the person is an Austrian citizen. Being an EU citizen with a permanent residency in Austria is not enough. Thus, for example, a German national permanently residing in Austria could be extradited from Austria to the US.

authors: Klara (Laura) Kiehl, Mark Tuttinger