EXTRADITION PROCESS BETWEEN RUSSIA AND THE USA: CURRENT SITUATION AND POSSIBLE VISTAS.

Болотин С.С., Речапова Е.Х.

Тюменский государственный университет

Now in the 21^st century, the century of information, contacts between people, their small groups as well as between countries get priority directions. Progress in science, exchange of cultures would be impossible without these contacts. Unfortunately, increasing of contacts(cooperations) between people and countries has caused an increase in crime, especially in transnational crime. In this connection, perhaps, it should be said that cooperation of law enforcement agencies and courts of different countries is the most effective in fighting against crime. Undoubtedly, the institute of extradition should be one of the criteria of this cooperation.

International cooperation is one of the most important conditions of international stability. Unfortunately, nowadays no country in the world has extradition treaties with all the other countries and there is no extradition Convention accepted by all the countries. Thus, this may cause a big problem, when countries can not agree upon sending or getting convicted or criminals. According to the Russian Justice Minister — Alexander Konovalov, «the fight against terrorism, organized crime and corruption should be the key aspect of cooperation between countries in the sphere of law enforcement[1]».

The paradox of the situation is that still there is no extradition treaty between powerful states such as Russia and the USA. These are the aspects which arouse the steady interest within the international relations community and make the author research the matter more thoroughly.

Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties. Where extradition is compelled by laws, such as among sub-national jurisdictions, the concept may be known more generally as rendition.

The consensus in international law is that a state does not have any obligation to surrender an alleged criminal to a foreign state as one principle of sovereignty is that every state has legal authority over the people within its borders. Such absence of international obligation and the desire of the right to demand such criminals of other countries have caused a web of extradition treates or agreements to evolve; most countries in the world have signed bilateral extradition treaties with most other countries.

No country in the world has an extradition treaty with all other countries; for example, the United States lacks extradition treaties with several nations, including the People's Republic of China, Namibia, the United Arab Emirates, North Korea, Cuba, Bahrain and Russia, unfortunately.

The refusal of a country to extradite suspects or criminals to another one may lead to international relations being strained. Often, the country to which extradition is refused will accuse the other country of refusing extradition for political reasons. A case in point is that of Ira Einhorn, in which some US commentators pressured President Jacques Chirac of France, who does not intervene in legal cases, to permit extradition when the case was held up due to differences between French and American human rights law. Another long-standing example is Roman Polanski's case whose extradition has been pursued by the State of California for over 20 years. For a brief period he was placed under arrest in Switzerland, however subsequent legal appeals there prevented extradition.

The questions involved are often complex when the country from which suspects are to be extradited is a democratic country with a rule of law. Typically, in such countries, the final decision to extradite lies with the national executive(prime minister or president etc.). However, such countries typically allow extradition defendants recourse to the law, with multiple appeals. These may significantly slow down procedures. On the one hand, this may lead to unwarranted international difficulties, as the public, politicians and journalists from the requesting country will ask their executive to put pressure on the executive of the country from which extradition is to take place, while that executive may not in fact have the authority to deport the suspect or criminal on their own. On the other hand, certain delays, or the unwillingness of the local prosecution authorities to present a good extradition case before the court on behalf of the requesting state, may possibly result from the unwillingness of the country's executive to extradite.

Generally under the United States law, extradition may be granted only pursuant to a treaty. Some countries grant extradition without a treaty, but every such country requires an offer of reciprocity when extradition is accorded in the absence of a treaty. Further, the 1996 amendments to the United States Constitution permit the United States to extradite, without regard to the existence of a treaty, persons (other than citizens, nationals or permanent residents of the United States), who have committed crimes of violence against nationals of the United States in foreign countries.

The problem between Russia and the USA is that they don't have international extradition treaty, despite the fact that they have already signed the treaty in 1996 about criminals and convicted. Russia has been insisting on signing the extradition treaty for 16 years and hasn't got an answer yet. The problem is that the USA answered neither positively or negatively. According to the Criminal Code of Russia «Citizens of the Russian Federation who have committed crimes in foreign states shall not be subject to extradition to these states» and «Foreign nationals and stateless persons who have committed offences outside the boundaries of the Russian Federation and who are to be found in the territory of the Russian Federation may be extradited to a foreign state to be brought to criminal responsibility or to serve their sentences in conformity with international agreement of the Russian Federation». Consiquently, if there is no international treaty so extradition should be executed due to the Russian law or international custom within the borders of international politeness and reciprocity.

Russia and the U.S. have no extradition deal and Russian citizens convicted by the U.S. court serve their sentences in the United States.

Relations between the two countries have been strained by legal proceedings against Russian nationals in the U.S., including the trial of Viktor Bout, a Russian national arrested in Thailand in March 2008 in an operation led by the U.S. agents and extradited in November 2010, and the case of Vladimir Zdorovenin, a Russian cybercrimes suspect extradited in mid-January from Switzerland to the U.S. without Russia receiving timely notification. Konstantin Yaroshenko — the russian pilot was also extradited in 2010 from another country — Liberia for transporting drugs from South America to Africa. Another case of extradition of russian citizens took place in 2001. Two russian hackers, Vasiliy Gorshkov and Alexey Ivanov, illegally got personal information about paying bills etc. Then they used it for getting money, and the total damages they made are estimated about $25 million. Actually, it wasn't extradition, because the FBI deceitfully invited Gorskov and Ivanov to the USA allegedly for improving security system. When they came, they were immideately caught by the FBI.

"Such practices are absolutely unacceptable to us. We, of course, think that it is understandable… But people should not be abducted on the territory of third states, they should not be extradited illegally. Legal instruments and mechanisms should be used, and we are going to further discuss the issue with the Americans,” Alexander Konovalov said.

At the moment these countries cooperate on the principle «either extradite or judge by yourself» said Konstantin Kosachev — the Chairman of the State Duma Committee for international affairs. Consequently, extradition can be possible only if the suspected had commited a crime against both countries. Therefore, we suggest a solution which is based on cooperation and not on the treaty. In our opinion, it would be better to extradite supected or convicted according to reciprocity and international politeness. For example, we extradite a criminal to the USA after their request and then the USA will help us with the same problem. It is the simple reciprocity. We suppose that this solution is the simpliest and unproblematic.

Another solution suggested is more problematic and complicated. We should continue insisting on signing the Extradition Treaty between Russia and the USA(because despite the fact that governments have signed the Agreement of cooperation in criminalistic propositions in 1996 they have not signed the Extradition Treaty yet) or try to persuade the USA to sign an international Extradition Convention. This way is more time-consuming but more dependable.

Finally, as the last resort, we could make influence upon the USA through other countries, signing Extradition Treaties with them. Further we will try to explain it. For example, the USA have the Extradition Treaty with Australia, then we need to sign the same treaty with the same country. Then we try to persuade the USA to sign the Treaty, because we both have the Treaties with Australia and why could not we have the Treaty between ourselves. This way is the most complicated, time-consuming, less warranted, so that is why we suggest to use it as the least one.

We do not deny that all these solutions may be used independently from each other, so they may also be applied simultaneously.

Thus, extradition is one of the most important instrument in the hands of law enforcement agencies and courts of different countries in fight against crime on international level. Unfortunately, we are compelled to establish that nowadays mutual contacts between Russia and the USA do not lean upon reliable legal mechanisms of criminal extradition to the requesting country. At the moment extradition between our states can be implemented according to good will within the borders of international legal relationships, but that is not sufficient. We undoubtedly hope, that the suggested options will assist in promotion of the Treaty between Russia and the USA ratification, moreover, they will help to figure out many other discrepancies in this sphere.

[1]http://en.rian.ru/russia/20120210/171243300.html

[2]http://en.rian.ru/russia/20120210/171243300.html

[3]http://www.gazeta.ru/social/2007/10/03/2214023.shtml