On Wednesday, I published a brief opinion on Russia’s claim that their constitution prohibits the extradition of any Russian citizen – a claim that came forward from the Prosecutor General’s office in response to Britain’s request to extradite Andrei Lugovoi on a murder charge for the death of former spy Alexander Litvinenko in the much-publicized polonium poisoning in London last year. I take the opportunity to reiterate here that I am not trying to take a position on the Litvinenko affair, a passionate debate that is crowded with opinions as is, but rather I only wish to discuss the legal precedent which has surfaced as a result, and give my opinion of the optics of Russia’s decision. Today I received the following comment from a gentleman named Dmitriy Velikovskiy on my earlier extradition argument:
You are wrong considering Russia`s reservations to the European Convention on Extradition of 1957. Look: Declaration contained in the instrument of ratification deposited on 10 December 1999 – Or. Engl./Russ. 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. Period covered: 9/3/2000 – http://conventions.coe.int/Treaty/Commun/ListeDeclarations.asp?PO=RUS&NT=&MA=999&CV
In response, I respectfully disagree with Mr. Velikovskiy. The key issue at stake is the difference between “may not” and “shall not.” It is common in international law for governments to leave this option open on extradition issues, allowing them the discretion to protect their citizens from foreign courts. However, by using the language “may not,” it is also arguably implied that Russia “may” extradite. Furthermore, it is not a credible argument to say that Russia can never, under any circumstances, extradite a citizen for a crime committed abroad. If that were the case, Russians would have the impunity to murder and steal abroad with no consequence. Extradition is most commonly denied when the fairness of the courts are called into question, or when there is reason to believe the charges are politically motivated. The Lugovoi case is about a murder suspect. It is not about anyone’s political convictions, or similar kinds of cases that might justify a refusal to extradite. Just after the “may not” language of Article 61, the Russian Constitution states in Article 63 that extradition of criminal suspects “shall be carried out on the basis of the federal law or the international agreement of the Russian Federation.” Russia’s declaration with respect to the 1957 should not be applied in the Lugovoi case. Clearly the politics of extradition are playing a major factor here, as Russia is justifiably miffed over several long-standing extradition requests to Britain. Of course the Federation cannot be forced to extradite anyone – but for the Russian government to argue that they are constitutionally prohibited from such action instead of simply admitting that they refuse the request is disingenuous. However, simply for the sake of appearances, I think they should extradite Lugovoi. What no one has mentioned is the enormous opportunity for Russia that this extradition request represents. Putin and his supporters have complained endlessly about the unfair treatment they have received from media and observers on their judicial, human rights, and democracy record. Yet here is the chance, on a silver platter, to put actions behind their words, and deliver an individual charged with a crime to stand a fair trial. What stronger statement could possibly be made to say that Russia has nothing to hide, and is not afraid of the truth or getting to the bottom of this sordid affair? Instead, they have defaulted to instincts, and are viewing the extradition request as an insult to their sovereignty, and cooperation with the investigation as some sort of geopolitical gesture of weakness. It’s a shame. Russia had a chance to put meaning behind their claims, instead now they look like they are sheltering an alleged murderer, regardless of anyone’s guilt or innocence.