They've Sunk to a New Low: The Kremlin is Lying about the Russian Constitution
Filed under: Eastern Europe
As most Russia watchers already know, the British government has charged former KGB spy Andrei Lugovoi with the murder of dissident exile Alexander Litvinenko, and requested that he be extradited to the U.K. for a murder trial. The Russian government has refused the request, claiming that the Russian Constitution bans extradition. As reported on Radio Free Europe, a spokeswoman for the Russian Prosecutor-General's Office, Marina Gridneva, explained the legal situation to reporters today in Moscow. "In accordance with Article 61 of the Russian Constitution, a citizen of the Russian Federation cannot be handed over to another state," she said. "A citizen who has committed a crime on the territory of a foreign country can be prosecuted on the basis of materials provided by that country, but only in Russia, if there is an analogous crime punishable under Russian legislation."
This has resulted in some scrutiny of the Constitution, and turned up an interesting quagmire. Indeed, as the Russian prosecutor stated, Article 61(1) states: "The citizen of the Russian Federation may not be deported out of Russia or extradited to another state." However, Article 63(2), which the prosecutor conveniently failed to mention, states: "The extradition of persons persecuted for their political views or any actions (or inaction), which are not qualified as criminal by the law of the Russian Federation, to other states shall not be allowed in the Russian Federation. The extradition of persons charged with crimes and also the hand-over of convicts for serving time in other countries shall be effected on the basis of the federal law or international treaty of the Russian Federation."
So although Article 61 seems to imply there is a Constitutional right to be free from extradition of any type, Article 63 seems to imply that not only can this "right" be negated by signing a treaty with another country, it can also be negated simply by having the Duma pass a federal law. As a whole, what the Russian Constitution actually seems to say is that a Russian citizen (like Lugovoi) accused of acts which are crimes under Russian law can't be extradited unless the Kremlin signs a treaty or the Duma passes a law allowing it. Extradition is actually banned entirely only for acts for which prosecution would amount to being "persecuted for their political views or any actions (or inaction)." So unless we are prepared to accept that these "political actions" could include murder (in other words, that the Constitution allows Russians to travel to foreign countries and kill critics of the Kremlin with impunity to foreign law), Lugovoi is fully extraditable as long as the Kremlin agrees.
So, when the Kremlin says it "can't" extradite Lugovoi, it's clearly lying. What it should say is that it simply refuses take the steps necessary to do so. It would appear to be acceptable under the Constitution for Russia to sign a treaty with Britain allowing extradition of Lugovoi, or for the Duma to simply pass a law allowing it (as a rubber stamp for Vladmir Putin, this could be accomplished in no time flat if the Kremlin desired it). Instead of admitting this, the Kremlin is simply lying -- claiming that its hands are tied, when in fact they aren't.
And there's more to it than that. Because, as noted by lawyer/blogger Robert Amsterdam, Russia has in fact already signed a treaty dealing with extradition, namely the European Convention on Extradition, which it signed in 1996. In bizarre fashion, Russia added a reservation to the treaty which states that "in accordance with Article 61(1) of the Constitution of the Russian Federation a citizen of the Russian Federation may not be extradited to another State." But, of course, Article 61 is clearly connected, as explained above, to Article 63, which allows for extradition by statute or treaty, and Russia signed the ECE, so there is a treaty in force. To argue that the reservation Russia included means no extradition can take place is the same as saying that the treaty Russia signed meant nothing, because even after signing it the country's citizens could still not be extradited.
As Amsterdam puts it:
Can Russia credibly assert that it joined the Extradition Convention with no intention ever to extradite a Russian citizen suspected of murder? While, as described above, the Russian Constitution declares that Russian citizens "may not" be extradited - and while the Extradition Convention contains an opt-out clause regarding a state's own nationals, how can Russia expect comity in international legal cooperation if it invokes these narrow exceptions in all cases involving its citizens - especially for a grave crime such as murder? And what signal does this send to Russian criminals or would-be wrongdoers about the consequences of committing serious misdeeds abroad?
The answer to both questions is obviously NYET! But then, it appears that Russia, just like the USSR, has no intention of playing by any set of rules. As Amsterdam writes: "The Kremlin clearly enjoys having its cake and eating it too." Just as it did in Soviet times, the Kremlin will conduct itself without regard for the basic facts of life, right up until the time it destroys itself along with the future of the Russian people -- the people who are sitting by watching the Kremlin recreate the Soviet state. As the New York Times' Russia correspondent recently wrote:
In Mr. Putin's seven years as president, a Soviet-style cynicism about the law has returned, one in which justice, like diplomacy, is simply a series of political calculations laced with ulterior motives, as opposed to a dispassionate search for truth, fairness and accountability. The cynicism has been a hallmark of Mr. Putin's presidency, allowing him to consolidate power by using the law to weaken the media, marginalize opposition parties and imprison political enemies. It is now being used to paint Britain as wielding its judicial system in Mr. Litvinenko's murder in the same way Russia often wields its own -- manipulating the law for political ends.On Thursday, Mr. Putin suggested that criticism of Russia's record on democracy and human rights was just an effort by the West to make Russia give ground on a host of international disputes, from Iran to missile defenses to independence for Kosovo. "One of the aims is to make Russia more pliable on issues that have nothing to do with democracy or human rights," he told reporters while visiting Luxembourg. This is at the heart of what bothers many in the West about Mr. Putin's Russia. Rather than embracing the common legal values that united Europe after the totalitarianism of Nazi Germany and the Soviet Union, Mr. Putin shuns them as weapons intended to weaken Russia.
In other words, once again paranoid, arrogant Russia plans to go it alone, making its own rules up as it goes along, heedless of the fact that such a policy is what caused the USSR to implode (and indeed, the Tsarist regime before that). It's time to begin asking what sort of state we can expect to arise when the same thing happens to Russia.
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