Certain extraditions to the US from the European Union just got harder. 

In a contribution to the Law360 Expert Analysis column, LSW partner Gabi Friedman explores how a recent judgment of the European Court of Justice (ECJ) on double jeopardy could impact US DOJ efforts to extradite certain persons from the European Union.  Gabi also suggests some strategic options that may open for US lawyers with clients based in the EU.

In an October 2022 judgment in Generalstaatsanwaltschaft München v. HF, which has so far received little notice on this side of the Atlantic, the ECJ ruled that double jeopardy (or ne bis in idem) prevents an individual’s extradition from any EU member state to the US if that individual has already resolved criminal charges based on identical facts in any other EU member state.    In effect, the court made clear that a disposition on the merits of criminal charges anywhere in the EU triggers double jeopardy protection everywhere in the EU, regarding extradition to the US for charges based on identical facts.  

The ECJ judgment further states that this EU-wide double jeopardy protection applies regardless of the defendant’s citizenship, or his/her immigration status in the EU.

The column briefly describes the situation of defendant HF, a Serbian national the DOJ seeks to extradite from Germany for offenses related to computer hacking. HF previously resolved criminal charges in Slovenia based on what a Slovenian court described as identical facts as the US extradition request.   After reviewing the ECJ’s reasoning, the article suggests strategic opportunities that may arise for US defense lawyers representing EU-based defendants in cross border investigations, as well as the possible reaction of criminal justice authorities in the US and the EU.