ST 13 of the Criminal Code of the Russian Federation.
1. Citizens of the Russian Federation who have committed a crime on the territory of a foreign state are not subject to extradition to that state.
2. Foreign citizens and stateless persons who have committed a crime outside the Russian Federation and are located on the territory of the Russian Federation may be extradited to a foreign state for prosecution or serving a sentence in accordance with an international treaty of the Russian Federation.
Commentary to Art. 13 Criminal Code
1. Extradition (extradition) means the extradition of a person who has committed a crime by the state on whose territory he is located to another state where the crime was committed or of which he is a citizen, in order to bring the latter to criminal responsibility or to carry out the sentence.
2. Part 1 art. 13 of the Criminal Code, based on Art. 61 of the Constitution of the Russian Federation does not mean the release of Russian citizens from responsibility and punishment for committing crimes on the territory of other states. The issue of criminality and punishability of the act in this case is resolved in accordance with the norms of the Criminal Code.
3. According to Part 2 of Art. 63 of the Constitution of the Russian Federation also does not allow the extradition to other states of persons: a) persecuted for political beliefs and b) for actions (inactions) that are not recognized as a crime in Russia.
4. Foreign citizens and stateless persons who have committed crimes outside Russia and are located on its territory may be extradited to a foreign state for prosecution or serving a sentence in accordance with an international treaty (Part 2 of Article 13 of the Criminal Code).
Commentary on Article 13 of the Criminal Code of the Russian Federation
In accordance with Art. 61 of the Constitution of the Russian Federation, a citizen of the Russian Federation cannot be expelled from the Russian Federation or extradited to another state.
This provision is also enshrined in Art. 13 of the Criminal Code of the Russian Federation. In this regard, the extradition of persons who have committed a crime can only be carried out in relation to foreign citizens and stateless persons who have committed a crime outside the Russian Federation and are located on its territory.
Extradition of persons who have committed a crime is the transfer of a person who has committed a crime to another state for the purpose of bringing him to criminal responsibility or for the execution of a court sentence passed against such person.
The extradition of persons who have committed a crime is carried out in the order of international cooperation on legal assistance on the basis of relevant international treaties. The absence of such an agreement does not exclude the extradition of a person to a foreign state, but is resolved on the basis of diplomatic agreements.
In international practice, a general trend has emerged according to which persons to whom the host country grants the right of asylum are not subject to extradition. This right is mainly granted to persons persecuted in their state for political or religious reasons. Therefore, persons who have committed so-called ordinary crimes do not enjoy the right of asylum and are subject to extradition to a foreign state.
It should be noted here that in the international and national legislation of states there is no clear definition of a crime (for example, political), the commission of which excludes extradition. Therefore, the problem of extradition is solved in a number of cases in a rather complex manner and often not on the basis of law, but on the basis of political and other opportunistic positions. Such decisions are known in Russian law enforcement practice, when our country was denied the extradition of persons who committed crimes.
According to established international practice, a state requires the extradition of a criminal in cases where a crime was committed on the territory of this state, the criminal is a citizen or subject of this state, the crime was committed against the interests of the state requiring extradition, or caused harm to it. If crimes are committed on the territory of a number of countries or affect the interests of several states, the issue of extradition is decided on the basis of international treaties and international law. At the same time, the person who committed the crime, regardless of the country of criminal prosecution, must bear responsibility for all the crimes he has committed.
As noted, the extradition of a criminal is carried out on the basis of national legislation and international treaties and requires compliance with a number of conditions.
Thus, in accordance with Russian criminal procedure legislation, the extradition of a person who has committed a crime is carried out on the basis of reciprocity. This means that, in accordance with the assurances of the foreign state that sent the extradition request, it can be expected that in a similar situation, extradition will be carried out at the request of the Russian Federation.
The extradition of a person who has committed a crime may be carried out in the following cases:
1) if the criminal law provides for the commission of these acts a punishment in the form of imprisonment for a term of more than one year or a more severe punishment, when the person is extradited for criminal prosecution;
2) if the person in respect of whom the extradition request is sent is sentenced to imprisonment for a term of at least six months or to a more severe punishment;
3) when the foreign state that sent the request can guarantee that the person in respect of whom the extradition request is sent will be prosecuted only for the crime specified in the request, and after the completion of the trial and serving the sentence will be able to freely leave the territory of that state, and also will not be expelled, transferred or issued to a third state without the consent of the Russian Federation.
Extradition of a person is not allowed if:
1) the person in respect of whom a request for extradition was received from a foreign state is a citizen of the Russian Federation;
2) the person in respect of whom a request for extradition has been received from a foreign state has been granted asylum in the Russian Federation due to the possibility of persecution in this state on the basis of race, religion, citizenship, nationality, membership of a particular social group or political opinion;
3) in relation to the person specified in the request on the territory of the Russian Federation for the same act, a sentence has entered into legal force or the criminal proceedings have been terminated;
4) in accordance with the legislation of the Russian Federation, a criminal case cannot be initiated or a sentence cannot be carried out due to the expiration of the statute of limitations or for other legal grounds;
5) there is a decision of the court of the Russian Federation that has entered into legal force on the existence of obstacles to the extradition of this person in accordance with the legislation and international treaties of the Russian Federation.
Extradition of a person may also be refused if:
1) the act that served as the basis for the extradition request is not a crime under criminal law;
2) the act in connection with which the extradition request was sent was committed on the territory of the Russian Federation or against the interests of the Russian Federation outside its territory;
3) for the same act in the Russian Federation the person in respect of whom the extradition request is sent is being criminally prosecuted;
4) criminal prosecution of the person against whom the extradition request is sent is initiated as a private prosecution.
Issuance is carried out upon an appropriate request, which must contain:
1) name and address of the requesting authority;
2) the full name of the person in respect of whom the extradition request is sent, his date of birth, data on citizenship, place of residence or place of stay and other data about his personality, as well as, if possible, a description of appearance, photograph and other materials allowing identification;
3) a statement of the factual circumstances and legal qualification of the act committed by the person in respect of whom the extradition request was sent, including information on the amount of damage caused by him, with the text of the law providing for liability for this act and the mandatory indication of sanctions;
4) information about the place and time of the pronouncement of a sentence that has entered into legal force, or a decision to charge as an accused, with certified copies of the relevant documents attached.
In addition, in accordance with international treaties, if the crime for which extradition is sought is punishable by death under the law of the requesting country, and if such crime is not subject to the death penalty under the law of the requested country or is not routinely carried out, extradition may be refused unless the requesting country provides such guarantees as the requested state considers sufficient that the death sentence will not be carried out. In particular, such a provision is contained in the European Convention on Extradition (Paris, December 13, 1957), which Russia signed with reservations and comments given in the Federal Law of October 25, 1999 N 190-FZ “On Ratification of the European Convention on Extradition , additional protocol and the second additional protocol thereto" <1>.
——————————— <1> NW RF. 1999. N 43. Art. 5129.
Extradition is not carried out in cases where the required person, in accordance with the law of the requesting or requested state, cannot be subjected to prosecution or punishment due to the expiration of the statute of limitations.
International law also contains restrictions regarding the criminal prosecution of an extradited person. In particular, such a person will generally not be subject to criminal prosecution, conviction or detention for the purpose of executing a sentence or order of arrest for any crime committed before his surrender, other than the crime for which he was extradited.
With the exception of certain cases, as a rule, the requested party also requires the provision of guarantees that the extradited person will not be transferred to a third state without its consent. Thus, the norms of international law provide very significant guarantees of respect for the rights and legitimate interests of the extradited person.
As noted above, the institution of extradition does not apply to cases where a person has been granted political asylum. In accordance with Art. 63 of the Constitution of the Russian Federation “The Russian Federation provides political asylum to foreign citizens and stateless persons in accordance with generally recognized norms of international law.
In the Russian Federation, the extradition to other states of persons persecuted for political beliefs, as well as for actions (or inactions) not recognized as a crime in the Russian Federation, is not allowed. The extradition of persons accused of committing a crime, as well as the transfer of convicts to serve their sentences in other states, is carried out on the basis of federal law or an international treaty of the Russian Federation.”
Issues of granting political asylum are regulated by the Regulations on the procedure for granting political asylum by the Russian Federation, approved by Decree of the President of the Russian Federation of July 21, 1997 N 746 <1>.
——————————— <1> NW RF. 1997. N 30. Art. 3601.
This Regulation establishes that the Russian Federation provides political asylum to persons seeking asylum and protection from persecution or a real threat of becoming a victim of persecution in the country of their citizenship or in the country of their usual residence for socio-political activities and beliefs that do not contradict democratic principles, recognized by the international community, the norms of international law.
The Regulations also provide for cases when political asylum is not granted. For example, it is not provided if:
- a person is prosecuted for actions (inactions) recognized as a crime in the Russian Federation, or is guilty of committing actions contrary to the goals and principles of the United Nations;
- the person arrived from a third country where he was not at risk of persecution;
- the person came from a country with developed and established democratic institutions in the field of human rights protection, as well as in some other cases.
The provision of political asylum by the Russian Federation is carried out by decree of the President of the Russian Federation. A person who has been granted political asylum enjoys rights and freedoms on the territory of the Russian Federation and bears responsibilities on an equal basis with citizens of the Russian Federation, except for the cases established for foreign citizens and stateless persons by federal law or an international treaty of the Russian Federation. In this regard, granting political asylum also means preventing the extradition of the person to whom it was granted to another state.
Second commentary to Art. 13 of the Criminal Code of the Russian Federation
1. The extradition of persons accused of committing a crime, as well as the transfer of convicted persons to serve their sentences in other states, is carried out on the basis of federal law or an international treaty of the Russian Federation (Article 63 of the Constitution of the Russian Federation).
2. A citizen of the Russian Federation cannot be expelled from the Russian Federation or extradited to another state (Article 61 of the Constitution of the Russian Federation).
3. In the Russian Federation, the extradition to other states of persons persecuted for political beliefs, as well as for actions (or inactions) not recognized as a crime in the Russian Federation, is not allowed.
Third commentary to Article 13 of the Criminal Code of the Russian Federation
1. The institution of extradition by one state of persons who have committed a crime to another foreign state (extradition) has long been known to international law. In this case, the state on whose territory the criminal is located, at the request of a foreign state, limiting its criminal jurisdiction over this person, extradites him to another interested state. A request for the extradition of a person to such a state may be based on the fact that the person is its subject or has committed a crime on its territory, or, although outside its borders, against the interests of that state.
2. Part 1 art. 13 of the Criminal Code establishes that citizens of the Russian Federation who have committed a crime on the territory of a foreign state are not subject to extradition to that state. The law, speaking about a citizen who has committed a crime, proceeds from the fact that his behavior is considered as such by the criminal legislation not only of a foreign state, but also of the Russian Federation. The categorical ban on the extradition of Russian citizens who have committed a crime on the territory of a foreign state to this state is based on the principle of citizenship of the criminal law in the space enshrined in Art. 12 of the Criminal Code (see commentary to the specified article of the Criminal Code). In this ratio of the provisions of Art. Art. 12 and 13 of the Criminal Code, one cannot help but see a systemic connection between the norms of the General Part of the Criminal Code of the Russian Federation, which regulate the operation of criminal law in space.
3. A different decision may be made by the Russian competent authorities in relation to foreign citizens and stateless persons who have committed crimes outside the Russian Federation and are located on the territory of the Russian Federation under certain conditions. This category of persons can be extradited to a foreign state to be prosecuted or serve a sentence. As a general rule, this action is carried out by the competent Russian authorities in accordance with the bilateral international treaty of the Russian Federation with a foreign state on legal assistance, which specifically stipulates, on a strictly reciprocal basis, the possibility of extraditing foreign citizens and stateless persons who have committed a crime outside Russia and are located in its territory.
4. The criminal law institution of extradition of persons who have committed a crime is closely linked, one might even say, corresponds with the constitutional provision that the extradition of persons accused of committing a crime, as well as the transfer of convicts to serve sentences in other states, is carried out on the basis of federal law or an international treaty of the Russian Federation (Part 2 of Article 63 of the Constitution of the Russian Federation).
On the other hand, it is significantly supplemented and enriched by other provisions of the Constitution of the Russian Federation: 1) The Russian Federation provides political asylum to foreign citizens and stateless persons in accordance with generally recognized norms of international law; 2) in the Russian Federation, the extradition to other states of persons persecuted for political beliefs, as well as for actions (or inactions) not recognized as a crime in the Russian Federation (parts 1 and 2 of Article 63) is not allowed. ‹ Article 12. The effect of the criminal law in relation to persons who have committed a crime outside the Russian FederationTopSection II. Crime >
What is meant by extradition?
Extradition (extradition) means the extradition of a person who has committed a crime by the state in whose territory he is located to another state where the crime was committed or of which he is a citizen, in order to bring the latter to criminal responsibility or to carry out the sentence.
The institution of extradition by one state of persons who have committed a crime to another foreign state (extradition) has long been known to international law. In this case, the state on whose territory the criminal is located, at the request of a foreign state, limiting its criminal jurisdiction over this person, extradites him to another interested state. A request for the extradition of a person to such a state may be based on the fact that the person is its subject or has committed a crime on its territory, or, although outside its borders, against the interests of that state.
