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Extradition Part 2: A Political Tool

For Extraditees, extradition is usually far from a sunset takeoff.

About The Author

Jessica Johnson (Criminal Editor)

Jessica is currently undertaking a study year abroad at the University of Copenhagen, Denmark, studying modules such as Law and Literature, The Law of Armed Conflict, and EU Development Law. She aspires to be a solicitor and is currently interested in personal law, specifically criminal and tort.

This article is the second in a series of two. The first article ‘Part 1 of the Extradition Act 2003: the role of the ECHR’ focuses on category 1 territories (EU Countries et al) and the rise of judicial activism with reference to the applicability of the Human Rights Act 1998. This article concerns category 2 territories, with a particular focus on Russia and the USA.

Category 2 territories are dealt with by Part 2 of the Extradition Act 2003. These are primarily those territories outside of the EU, including Australia, the Russian Federation, and the United States of America. There are almost 100 states which fall under Part 2 of the Act. The extradition does not involve a European Arrest Warrant (EAW) as is required for Category 1 territories; nonetheless, the extradition request operates in essentially the same manner.

The major difference between Part 1 and Part 2 is the involvement of the Secretary of State. In Category 2 extraditions, the Secretary of State is responsible for deciding whether or not to certify the extradition request. Following this, the district judge of Westminster Magistrates’ Court must decide whether or not to issue an arrest warrant. They may apply the following factors:

  • Whether it is a valid extraditable offence; and
  • Whether the evidence in support of extradition is sufficient to justify an arrest warrant.

The wanted person is then arrested, informed of the offence via an initial court hearing, and then attends an extradition hearing. Relevant factors in the decision include the following:

  • Whether the extradition complies with the Extradition Act 2003;
  • Whether any bars to extradition apply (e.g. lapse of time – this involves whether it would be ‘unjust or oppressive to extradite him’ due to a substantial passage of time since the alleged offence);
  • Whether the extradition is compatible with the ECHR.

Should the judge decide in favour of extradition, the case is sent back to the Secretary of State who, when making the final decision, will consider the following:

  • Possible imposition of the death penalty;
  • The rule of specialty – this ‘prohibits a person being dealt with in the requesting state for matters other than those referenced in the extradition request’;
  • Whether the wanted person had previously been extradited to the UK.

As seen above, the Category 2 territory extraditions follow the same protocol as that of Category 1, just with further vetting by the Secretary of State as an additional safeguard. Iwill now examine extradition relations between the UK and US, the UK and Russian Federation, and the conflict between the US and Russian Federation. Extradition is not a ‘compulsory’ mechanism amongst these countries. National governments may choose which countries they wish to have extradition agreements with. I therefore believe that extradition amongst Category 2 territories predominantly serves a political purpose, rather than a legal one.

United States

The UK and US have a Bilateral Extradition Treaty in place, however, it was signed in the same year as the Extradition Act 2003, and its contents are thus included in the Act. In her article ‘Extradition arrangements between the UK and the US’, Katherine Higgins outlines the various concerns regarding extradition with this Category 2 territory. Prior to the 2003 Act, there was a requirement ‘to extradite accused persons on evidence that would justify committal for trial if the offence alleged had been committed in the jurisdiction of the requesting country.’ This was in the UK’s favour; the US was required to provide prima facie evidence in support of extradition, whereas the UK was only required to satisfy the probable cause test. Following the Extradition Act 2003, the test ‘for the UK to extradite an individual to US is one of reasonable suspicion whereas for the US to extradite to the UK the test is one of probable cause.’

What Higgins refers to as the ‘obvious source of unfairness and controversy is the frequent omission of prima facie evidence of wrongdoing in order to legitimately extradite a suspected criminal’ following the Act. She points out that extradition, the process of removing an individual from his or her home and family, is punishment in itself. However, the growing tendency of omissions sheds a light on the US government’s attitude to ‘robust and persistent’ prosecutions. As will become evident, the US perhaps pursues extraditions when other countries would not.

Recent examples in the news have fuelled public fears that the treaty operates to allow harsh and unfair results (capitalised on by the BBC Drama ‘Silk’). The ongoing case of Paul and Sandra Dunham has attracted a great deal of attention within the media. The couple face extradition in the US for allegations of fraud and money-laundering, and are now seeking to appeal to the Supreme Court. Their argument outlines the ‘personal, emotional and financial hardship’ incurred through the proceedings.  As a result of the initial allegations, the couple lost their jobs and assets within the US, were declared bankrupt in the UK, and have suffered a variety of physical and mental health conditions. The main thrust of their argument concerns the insensitivity of US extradition requests, in comparison to the likelihood of conviction.

However, an independent ‘Review of the United Kingdom’s Extradition Arrangements’ by Sir Scott Baker found little evidence of unfairness within the US arrangement. No substantial difference between the evidential standards of the probable cause test, and the reasonable suspicion test was revealed. Both terms referred to the same practice and standard. It was concluded that the review ‘did not believe that the arrangements operate unfairly.’ In response to fears over unjust extraditions which could lead to oppressive results, the review concluded that ‘the 2003 Act allows for proper protections against both injustice and oppression’, with particular regards to the final decision-making power of the Secretary of State.

Nevertheless, it is rarely argued that the respective tests are the source of the injustice, but rather the enthusiasm to extradite in itself. Higgins suggestion that the US operates a ‘robust and persistent’ prosecution system is not without its evidence. The review by Sir Scott Baker found that between 2004 and 2011, 130 requests were submitted from the US to the UK, of which 10 were refused. In comparison, the UK only submitted 54 requests to the US, of which none were refused. The primary principle of extradition is to prevent criminals from escaping wrongdoing by fleeing to another state. However, this principle must be viewed as part of a balancing exercise. For instance, the elderly Dunham couple argue that the fraudulent allegations against them are not supported by a sufficient body of evidence to justify extradition. UK bankruptcy, mental health conditions, and loss of all assets, including their US home, have already left their mark on the couple’s life and wellbeing. In lieu of the circumstances, a prima facie evidential test should be more diligently applied.

The US’s enthusiasm to extradite and prosecute in the UK should be remembered for the following argument.

Russian Federation

Unlike the US, the UK and the Russian Federation have no bilateral extradition treaty; they are governed purely by the Extradition Act 2003. This has undoubtedly had an influence over any co-operation which could have been reached between the two states. The pressure to satisfy an independent treaty is not there. Extraditions which would not have been refused in a UK-US context are commonly refused in this context. Russia has previously refused to grant extradition requests due to constitutional issues, and the UK has in return refused due to human rights concerns such as prison conditions.

Article 61 of the Constitution of the Russian Federation, states that ‘[t]he citizen of the Russian Federation may not be deported out of Russia or extradited to another state.’ They must instead be tried in Russia. This was seen in the 2006 case of Andrei Lugovoi, wanted in the UK for the poisoning of dissident Alexander Litvinenko in London. David Miliband, Foreign Secretary at the time, campaigned for the extradition of Lugovoi, in order to ‘seek justice’ for the ‘horrific’ death of Litvinenko. However, Russia stood firm in its decision to refuse extradition on constitutional grounds, instead offering to try Lugovoi themselves should UK prosecutors send sufficient evidence.

Extradition serves an international function; designed to promote the effectiveness of criminal justice systems in cross-border situations. It could thus be argued that extradition proceedings should not be affected by issues of constitution, with the fundamental exception of human rights. Will this constitutional rule apply to all Russian nationals who commit international crimes? Or will Russia perhaps intervene when it serves a particular political agenda? It cannot be ignored that Litvinenko was a former KGB spy who had spoken out against President Putin. If the murderer and victim were the other way around, I am more than certain that Russia would react differently.

In response, the UK has often refused to grant extradition requests to Russia; instead granting the wanted person refugee status, or refusing the request on human rights grounds. The 2007 case of Berezovsky demonstrates the power that political asylum has over extradition proceedings between Russia and the UK.  Berezovsky was wanted in Russia initially to face charges of fraud. In 2003 he was granted political asylum by the UK, and has since gone on to speak of a possible ‘revolution’ against President Putin. The UK refused to drop his refugee status, and has thus refused his extradition. This is one of several examples which have fuelled the growing British-Russian tensions. Russia consistently asked for his status of asylum to be dropped. However, with Litvineniko’s murder still a fresh memory, the UK refused. These two cases could suggest that extradition is a mechanism designed to serve a political function when it suits – not to seek criminal justice.

The UK has more recently taken a stance against Russia’s attitude towards human rights. In the 2013 case of Olessia Fotinova, the chief magistrate, Judge Riddle, came ‘to the firm conclusion that any person held in a Russian prison is at real risk of degrading treatment’. He stressed that a similar attitude will be taken towards future Russian extradition requests; for the request to be successful, Russia would have to provide specific evidence of satisfactory prison conditions. There is a general reluctance to co-operate between these two states. As seen in the previous article, prison conditions are not yet considered to be a sufficient breach of Art.3 human rights as to justify a refusal. Requiring Russia to jump this extra hurdle in order to qualify for a successful extradition is purely a reflection of ongoing conflicts. Seemingly, such are the consequences of having no Bilateral Extradition Treaty in place. Extradition will adapt to the political climate.

Russia and the US

On the other hand, the above reluctance is somewhat insignificant compared to the extradition relationship between Russia and the US. No extradition treaty exists between Russia and the US. In 2009, Russia called for the ratification of an extradition treaty, but the US made no response. Contrast this with the US attitude to extradition arrangements with the UK. Where has the dogmatic enthusiasm to extradite and seek prosecution disappeared off to?

The recent case of Edward Snowden demonstrates the hostilities present between these two states. Snowden is wanted in the US to face charges of theft of government property, unauthorised communication of national defence information and wilful communication of classified communications intelligence. Since the US ignored Russia’s plea for an extradition treaty in 2009, there is no requirement for Russia to validate Snowden’s extradition. This shift in power was greeted perhaps a little too eagerly by President Putin.

Vladek proposes that this issue reflects diplomatic relations, rather than a lack of international legal provisions:

A lot of it depends on what country he ends up in and how much political pressure the U.S. government brings to bear. It also depends on diplomatic and foreign policy considerations that really are impossible to quantify because extradition is such a political—as opposed to a legal—process, especially where we're talking about extraditing someone from a country with which we don't have an extradition treaty, like Russia.

Once again, extradition is being viewed as simply an additional tool of criminal justice systems, to be invoked at whim. Countries may opt in and out of it depending on the sort of political agenda they choose to pursue at any given time. With the exception of the relevant human rights concerns set out in the previous article, the EU facilitates extradition with rigour and efficiency. If Member States are to actively endorse the freedom of movement of persons, they must be prepared to deal with any criminal consequences of such movement. If this logic is applied to the Member States of the EU, then it is incredibly bold for the US and Russia to propose that it does not apply to them. Whilst visa requirements may make it more difficult for US and Russian citizens to travel between their respective countries, it is not impossible. If travel is permitted at any level, extradition should be facilitated.

Conclusion

Examining the relationship between Russia and the US demonstrates how politically loaded extradition can be. Category 1 territories have a pre-existing sense of equality and attachment due to membership of the EU. It would be impractical and somewhat unnecessary for them to have extradition power struggles. This is not the case with non-EU states. Extradition is being used as a vastly persuasive tool within diplomatic relations; serving as an indirect indicator of whether countries are friend or foe. Surely this is not the overarching purpose of extradition. It ought to be a heavily regulated, and yet universal, component of the criminal justice system, separate from politics.

If the UK wishes to leave any political agenda outside of the law, and encourage a symbiotic relationship with Russia, it would be wise to develop a similar sort of system to the UK-US Bilateral Treaty. Issues such as constitutional rights and human rights can of course be involved. This would prevent an unbeneficial Russian-US system of diplomacy, where the states have perhaps become too proud to extradite.  As seen in the Litvinenko murder, such pride can have devastating consequences. However, given the unfolding Ukrainian crisis which has resulted in the dropping of Russia from the G8, and EU wide/US economic sanctions, any hope of a political solution in the near future is somewhat doubtful.

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Tagged: Extradition, Human Rights, International Law

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