This note examines the exclusion of nationals from extradition arrangements in the light of the recent refusal of the Russian Federation to extradite Andrei Konstantinovich LugovoyFootnote 1 to the United Kingdom for his alleged murder of a naturalized British citizen (a former Russian national), Alexander Valterovich Litvinenko, in London on 23 November 2006. Both men had previously been members of the Russian secret services.
The facts of the case are highly contested but circumstances leading to the extradition request are well known. On 23 November 2006, Litvinenko died in a London hospital of acute radiation injury, allegedly after having ingested a fatal dose of the radioactive isotope polonium-210 three weeks earlier. On the day Litvinenko fell ill and is suspected to have been contaminated, he had met with Lugovoy at a bar in London. According to the Crown Prosecution Service (CPS), traces of polonium-210 were later found at the bar, as well as in several other places visited by Lugovoy, including aboard the British Airways plane in which he had travelled to the United Kingdom.Footnote 2 On 22 May 2007, the CPS announced that it had decided to prosecute Lugovoy, a Russian citizen, for the murder of Litvinenko.Footnote 3 By that time Lugovoy had left the United Kingdom for Russia and so a formal extradition request was made under the terms of the 1957 European Convention on Extradition (ECE) on 28 May 2007.Footnote 4 Russia formally declined extradition on 6 July 2007, stating that that it was prepared to consider putting Mr Lugovoy on trial in Russia if the CPS's evidence was forwarded to the Russian prosecutor. Russia's refusal to extradite was unsurprising since the Russian Prosecutor General had, with reference to the Russian Constitution, already proclaimed the impossibility of surrender.Footnote 5 The United Kingdom was clearly not satisfied with the official response and on 16 July 2007 the Foreign Secretary announced various measures taken to induce cooperation, among others the expulsion of four Russian diplomats as well as the tightening of visa requirements in relation to Russian Government officials travelling to the United Kingdom. The United Kingdom did not put forward the suspension of the ECE with Russia as a proper response. In his statement to the House of Commons, the Foreign Secretary gave the following explanation:
Given the importance of this issue and Russia's failure to co-operate to find a solution, we need an appropriate response. Our aims are clear: first, to advance our judicial process; secondly, to bring home to the Russian Government the consequences of their failure to co-operate; and thirdly, to emphasise our commitment to promoting the safety of British citizens and visitors.Footnote 6
Russia responded three days later by expelling four British diplomats, stating that it would act in a mirror-like fashion in regard to all visa-related issues taken by the United Kingdom.Footnote 7 By this time diplomatic relations were severely strained. Russia had responded to the British measures by calling them ‘immoral and provocative’Footnote 8 and the British Foreign Secretary had issued a statement on the day of the Russian expulsions saying that the decision to expel embassy staff was ‘completely unjustified’.Footnote 9 The situation was further complicated by allegations that the British Foreign Intelligence Agency, MI6, had tried to recruit Litvinenko and Lugovoy, both former Russian intelligence agents. Lugovoy said also that the poisoning could not have happened without some involvement from the British intelligence services.Footnote 10 Other distinct but intimately related matters, such as the ongoing issue of the extradition of Russian dissident Boris Berezovsky, likewise added to controversies.Footnote 11 In this respect Russia has stated:
It is no secret that Russia has made requests for the extradition of 21 Russian citizens, including Berezovsky who has called for the overthrow of the existing system in Russia and Zakayev, an accomplice of terrorists. Not one was extradited. If Russia had gone down the same path chosen by London, the British embassy would by now have been at least 80 diplomats short.Footnote 12
Tensions increased further when it was reported in the British media that a person of supposed Russian origin had been arrested in London on suspicion of conspiracy to murder in connection with an alleged attempt to assassinate Berezovsky.Footnote 13 Thus, as has so often happened before, what is normally an obscure subject—the surrender of a person from one jurisdiction to another—rapidly developed into a substantial controversy between two nations. Economic ties have remained unchanged but counter-terrorism cooperation is said to have been suspended.Footnote 14
A. The European Convention on Extradition
Both the United Kingdom and the Russian Federation are parties to the ECE and have signed a Memorandum of Understanding on criminal cooperation;Footnote 15 the latter being a non-binding instrument.Footnote 16 As Contracting Parties to the ECE, both States are obliged, subject to certain conditions, to surrender ‘all persons against whom the competent authorities of the requesting Party are proceeding for an offence’.Footnote 17 This applies to all offences which fulfil the double criminality and minimum penalty requirement established in Article 2. Since the request for Lugovoy concerns an alleged homicide, both conditions are evidently satisfied. Neither are there any problems in relation to procedural prerequisites. Instead, Russia has so far refused extradition on the basis of Article 6(1) of the ECE, which provides that Contracting Parties ‘shall have the right to refuse extradition of their nationals’.Footnote 18 This provision was inserted to allow as many States as possible to accede to the Convention since the laws of several drafting States proscribed extradition of their nationals.Footnote 19 The exception of nationals from extradition arrangements is a fairly general practice, especially in continental Europe and Latin America.Footnote 20 The main reason for differences in practice is that a crime committed by nationals abroad in most civil law jurisdictions is considered an offence against the laws of the homeland, whereas common law jurisdictions traditionally give priority to territorial jurisdiction.Footnote 21 Insistence on the importance of territorial jurisdiction is well reflected in comments of the British Attorney General and other official statements.Footnote 22 The case against Lugavoy is said to concern a ‘British’ crime, though here the claim is made by the Government rather than by a defendant.Footnote 23
Any State which does not surrender its national upon request in accordance with the ECE is obliged at the demand of the requesting Party to submit the case to its competent authorities in order that proceedings may be taken there.Footnote 24 This obligation is similar to the principle of aut dedere aut judicare, which is common to the Geneva Conventions and most international counter-terrorism instruments.Footnote 25 The rationale of this principle is, as in the ECE, that any person alleged to have violated the law must not go untried. Just as with the aut dedere aut judicare principle, the obligation in the ECE is not absolute. Thus legal proceedings are not mandatory as long as any decision not to prosecute in taken in good faith and in accordance with normal procedures applicable to similar serious offences. So far, however, the British authorities have insisted on extradition and have made no request for a Russian trial.Footnote 26 In addition, the British Government says that there would be a legal challenge to any decision it made to cooperate with a trial in Russia, based on human rights concerns that the ‘law in Russia is applied selectively’.Footnote 27
Thus the incident would seem to be fairly straightforward, had it not been for the United Kingdom's continued insistence on extradition and taking highly public steps to try to compel the return of Lugovoy.Footnote 28
B. Possible Ways to Facilitate Extradition
In his statement to the House of Commons, the Foreign Secretary stated that the Russian authorities had given no indication of a willingness to work to address the constitutional ‘obstacle’ preventing extradition.Footnote 29 The situation is not unique, he stated, referring to other countries that have recently amended similar provisions in their Constitutions to give effect to the European Arrest Warrant (EAW), thus more than hinting that Russia could solve the problem, if it were so willing, either by making an exception to the rule or amending its Constitution. It is, though, not at all clear why the very special regime of the EAW should be relevant to relations with Russia, not a member of the EU. Assuming Russia was willing to cooperate, how could they accommodate the United Kingdom request?
1. The interpretative approach
By referring to the constitutional provision preventing extradition as an ‘obstacle’, the British Foreign Secretary seemingly infers that there must be a way around this hindrance, eg by making an exception to the rule or by creative interpretation of the constitutional provision itself. Methods of constitutional interpretation vary according to constitutional theory and practice and are pre-eminently a domestic issue.Footnote 30 Some national constitutions explicitly incorporate international law, which is the case with the Russian Constitution, and which gives clear priority to customary and conventional international obligations.Footnote 31 Thus any domestic provision would generally have to be interpreted in conformity with international law. Supremacy, however, is given to constitutional provisions.Footnote 32 Even if international obligations were attributed constitutional importance, it would still be difficult to facilitate extradition. First, because Russia is under no international obligation to extradite; secondly, because the constitutional bar on extradition is unequivocal: a citizen of the Russian Federation may not be deported from Russia or extradited to another State.Footnote 33 Thus there is no room for interpretation.Footnote 34 Russia has previously extradited persons of dual citizenship but this was found by domestic courts to be unconstitutional.Footnote 35
2. Constitutional amendment
Constitutional changes are naturally not impossible, but almost so: and rightly. The prohibition of extradition of nationals in the Russian Constitution is especially difficult to change since it falls within a special chapter of the Constitution concerning fundamental rights and liberties.Footnote 36 This is one of three chapters that are particularly hard to amend.Footnote 37 Any change would have to be supported by three-fifths of the members of the Council of the Federation and the deputies of the State Duma.Footnote 38 Thereafter, a Constitutional Assembly would have to be convened. The Assembly would either have to confirm the invariability of the existing Constitution or draft a new one. A new Constitution could only be adopted by two-thirds of the Constitutional Assembly or submitted to popular vote. Difficulty in changing the provision on extradition is evident inter alia in the long delay in implementing the Rome Statute of the International Criminal Court (ICC).Footnote 39 Constitutional problems about ICC participation are not unique to Russia.Footnote 40 In addition, whereas States might be inclined to initiate the arduous work of changing their Constitution in order to participate in international mutual criminal cooperation schemes, no State has yet done so to enable extradition in an individual case. Moreover, whereas some States did indeed change their constitutions to enable implementation of the EAW, some did not.Footnote 41 In those countries that tried to implement the EAW without changing their Constitution, there were constitutional challenges.Footnote 42
3. Circumventing extradition procedures
The Foreign Secretary mentioned in his speech that international agreements mean that Lugovoy could be extradited to the UK if he travelled abroad.Footnote 43 Although this is undoubtedly true, it would also be highly suspicious if Lugovoy should suddenly decide to do so after having resisted extradition. In this regard it should be noted that the Russian Constitution not only protects against extradition but also deportation. Importantly, any circumvention of extradition proceedings by State authorities to facilitate surrender might also violate the right to liberty, in that everyone is entitled to security of the person and only to be restrained in accordance with due process.Footnote 44
C. Conclusion
The problem of (non-) extradition of nationals is as old as extradition itself and the episode concerning Lugovoy is but another chapter in this long and continuous story.Footnote 45 Strong reasons have been advanced over the years for the removal of nationality as a ground for refusal of extradition but until recently with little practical effect. Renewed interest in the subject emerged with the establishment of the ad hoc tribunals for the Former Republic of Yugoslavia and Rwanda and the International Criminal Court. The establishment of these tribunals did not bring much change to inter-State cooperation because it was preferred to make a fundamental distinction between ‘surrender’ to an international institution and ‘extradition’ to other States.Footnote 46 This distinction was also adopted by some States with regard to their obligations under the EAW, although it has been subject to criticism.Footnote 47 Thus it would seem that even with the realities of modern life, where movement around the world has been made easy and crime often takes on international dimensions, attitudes have not fundamentally changed. Either for pragmatic reasons or nostalgic notions of a special relationship between citizens and their national State, many countries do not want to change their laws preventing extradition of nationals. In this context, the position of the United Kingdom may have been affected by the traditional common law approach and the broad provisions of its own extradition law which allow for ad hoc extradition in some circumstances (though not with States with which there are regular arrangements), making too easily the assumption that other States could make similar flexible arrangements—if they chose to do so.Footnote 48 In any event, the case provides an important reminder of one of the limitations of international criminal cooperation, which often looks fragile where a fugitive is affiliated to the authorities of the requested State. In such circumstances constitutional guarantees tend to be afforded supremacy over conflicting international obligations.Footnote 49 This is despite the general rule that a State may not invoke provisions of its internal law as justification for its failure to perform a treaty obligation,Footnote 50 even if it is a constitutional provision.Footnote 51
