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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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The author either doesn't understand what is written in the Constitution or deliberately lies. Article 61(1) is about citizens of RF, while art. 63 is about 'other persons' (read 63(1)). Otherwise Russia would have a self contradictory Constitution.
Are you suggesting that a Russian citizens is not a "person"? That's rather extreme Russophobia, even I frown on it.
Here's the text of Article 63:
1. The Russian Federation shall grant political asylum to foreign citizens and stateless citizens in conformity with the commonly recognized norms of the international law.
2. 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.
It does not say "other persons" as you claim, but only "persons," and there is no reason why Russian citizens are not to be considered "people." Does the Constitution have a "definitions" section in which it says that the word "person" does not include Russian citizens? If so, you certainly don't point it out. If they meant "people who are not citizens" why didn't they just say that?
There's nothing at all strange about contradictions being present in a constitution. The US Constitution called for both democracy and slavery in its original form. A contradiction creates ambiguity, and that means there is room for the Kremlin act.
Robert Amsterdam is a trained lawyer and says that the Russian constitution does allow extradition. Condi Rice just called for extradition. Apparently you think he, too, is a liar, as is everyone who disagrees with you. You cite no authority of any kind for your bizarre, pro-Kremlin interpretation of the constitution, and your word alone is worth less than nothing.
Frankly, the idea that the dictatorial Kremlin doesn't have the power to extradite someone if it wants to is offensive to basic intelligence. Only a Russophile propagandist like you could utter it. It's totally inconsistent with the Constitution for Putin to appoint the governors, but he's doing it. Even if there were no legal authority right now, the Kremlin could simply snap its fingers and get (or just take) that authority if it wanted to cooperate. To contend otherwise marks you as an idiot and a liar.
Blaise MacLean says:
Don't you think maybe Article 63(2) might refer to extradition TO Russia, not FROM Russia?
No, the text clearly 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." It's to other states from Russia, not the other way around.
Fair enough, at least insofar as the first sentence is concerned. But if you look at the second sentence (which I was thinking of) I think there's an issue. It says "...and also the hand-over of convicts for serving time in other countries..." This seems to pretty clearly refer to getting people INTO Russia..
The use of the conjunction "and" seems to link the first part of the sentence with the second. So, while I do not hold myself out to have any kind of expertise in Russian statutory construction, it seems like a reasonable inperpretation, doesn't it?
I do not hold myself out as having any expertise in Russian statutory interpretation, but it seems to me that the use of the conjunction "and" in the second sentence links the first clause and the second clause. So, it appears that the authority to make extradition agreements refers to getting accused and convicted persons into Russia. Isn't that a reasonable interpretation?
Article 63 is not binding in this particular case because it does not say that persons not meeting listed conditions MUST be extradited. It says that those who do, cannot be. Just like US constitution the intended goal is to give to citizens, not take away.
However, article 61, says that all citizins CANNOT be extradited - en empirical statement. Logically, this includes a subset of "persons" referred to in Article 63, but is clearly not limited to them.
A much better argument is the treaty.
But how could they have signed this with the provision not to honor it? Who would let them?
I plead ignorance on what actually happened, but as described, it is impossible.
I am interested in what the author is not telling us and why.
Readers may be interested in the following post from Robert Amsterdam's blog, in which the Former Secretary-General of the Council of Europe writes a letter to the Financial Times arguing that in fact Russia is legally able to extradite Andrei Lugovoi.:
The claim that the Russian constitution prevents the extradition of the former Russian agent Andrei Lugovoi is contestable.
It is true that one article in its bill of rights and freedoms contains what seems to be a blanket guarantee against the extradition of Russian citizens, but a subsequent article opens the door for extradition of indicted persons on the basis of federal law or international treaty.
On December 10 1999, the Russian Federation ratified three international treaties on extradition (Council of Europe conventions ETS 024, 086 and 098).
The special reservations and declarations attached to these ratifications do not seem to vindicate the refusal to extradite Mr Lugovoi, but any objections to the UK request should at any rate be based on these texts rather than on the Russian constitution.
Professor in Political Science,
University of Stockholm,
Do not trust a lawer! Especially, Amsterdam :)
And the letter by the Former Secretary-General of the Council of Europe shows how low the standards of the professionalizm in the Council of Europe are.
Read the Russian Constitution and you will see that
1) Article 61 is about *Russian citizens*
2) Article 62 is about relation between *Russian* and *other* citizenships
3) Article 63 is about *not-Russian* citizens.
La Russophobe is, as always, has no clue...
A much better argument is the treaty.
But how could they have signed this with the provision not to honor it? Who would let them?
It's not argument at all. If you read the treaty:
you would see that this treaty says:
With respect to sub-paragraph "a" of paragraph 1 of Article 6 of the Convention the Russian Federation declares that in accordance with Article 61 (part I) of the Constitution of the Russian Federation a citizen of the Russian Federation may not be extradited to another State.
The text of Article 63 is above for all to read. It says nothing about applying only to "non-Russian citizens" as any ape can clearly see. You cite no published source backing up your demented claim. Your attempt at propaganda is just plain silly.
Are you suggesting that an anonymous monkey like you is more reliable than a world famous lawyer? Lay off the vodka, dude, it's seriously messing up your brain.
61 is also there for all to see.
As well as the treaty exception quoted by Cipteks.
If you see a contradiction (I do not, I made a case, you did not respond), that is your right. Anyone with an a priori viewpoint will get what they want out of these two articles, and the treaty. But..
Would you not agree that if Lugovoi is extradited constitution has been violated?
If he is not extradited, quote to us, what article was violated and how.
That is a killer point, you have to get around this somehow if you are going to stand by your argument.
The conflict between 61 and 63 is fully addressed in the post. I resent that you suggest otherwise.
What you are saying simply makes no sense at all. The fact that 61 says Russian citizens can't be extradited is not the end of the discussion if another provision says they can be. An ambiguity arises, and the two provisions are read together to resolve it. The resolution of matters like this is left to the courts, and you can cite no court decision to uphold your "view".
Without such a ruling, the Kremlin is free to do as it chooses (in fact, recent history clearly indicates the Kremlin is free to do as it likes no matter what the courts may say). It simply chooses not to extradite, and dishonestly attempts to claim it is restricted.
The Kremlin has signed a treaty allowing for extradition, and it is totally ridiculous to suggest that it could have done so when extradition is not permitted. There is no point for Russia to have signed the treaty in that case, as the two trained legal experts cited above have said. If it is correct that no extradition from Russia is allowed, then Russia signed the treaty under false pretenses, getting its benefits without paying its costs.
It's silly and senseless for you to attempt to discuss this issue without recognizing these basic points. The Kremlin is saying it's clear it can't extradite. The very existence of the debate on this post proves the Kremlin is wrong.
Moreover, it's truly amazing hypocrisy that the Kremlin would seek the extradition of Berezovsky without allowing the extradition of Lugovoi. It's asking a citizen of Britain to be denied a right it guarantees to Russians. That's outrageous -- and Berezovsky is not accused of actions that could amount to mass murder the way Lugovoi is.
I've cited two legal professionals who support my view. You've cited NOBODY who supports you. Case closed.
It ois clear that dispite what is written in article 61, article 63 allows for the extradition of Russian citizens like those that have taken place in 2002 (Murad Garabaev, it is true his Russian citizenship was revoked but that was AFTER the extradition, there are other examples of this too), unless, the crime that took place on foreign soil is not a crime in the Russian Federation, then the constitution explicity disallows it. Draw from that what conclusions you like, but it would seem terrorism with using radioactive materials is not a crime in the RF.
Wonderful to see Jesuitical debate survives, and seems related to Marxist debate.
Simply look at Putin's claimed consequences, ie, no one can be extradicted from RF. Yet the treaty to permit extradiction is actually signed.
Funny, if not so tragic, Catch 22, Soviet style!
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