Extradition in criminal law was the result of the understanding by the heads of government of different countries of the need to fight together with the growing criminal force in the world.
The presence of the potential to escape punishment on the lands of another state can give rise to an unprecedented increase in criminal acts by individuals against society. Given this fact, politicians have come to the conclusion that it is necessary to detain and transfer for the execution of justice persons who have committed a crime on the soil of the state that has requested the extradition of the person to serve the sentence assigned to him. This legal phenomenon has existed since ancient times, and in conditions of growing crime it is becoming increasingly widespread in relations between powers. Multi-channel free hotline Legal advice on criminal law. Every day from 9.00 to 21.00
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Right or duty?
Criminals who have committed illegal acts on the territory of one country and hope to escape justice by leaving it cannot always count on the success of their enterprise. Today, one of the forms of interaction between countries has become the institution of extradition of a criminal, legalized by legal documents.
The institution of extradition covers only criminal offenses.
The conditions under which extradition is carried out between states are enshrined in special legislative acts.
Depending on what kind of treaties and relations exist between countries, the extradition of criminal elements to another country may be:
- state law;
- his direct responsibility.
The obligation to extradite is a phenomenon that is not common in global legal practice.
It can only occur as a result of the conclusion of a special agreement between the powers, which will spell out the conditions obliging the extradition of the criminal. The existence of an extradition treaty does not guarantee that the subject will be transferred for justice to another country. Only confirmation of all the facts listed in the document necessary for extradition makes it mandatory.
Extradition is predominantly considered a right of the state, which can be used if necessary:
- at your own discretion;
- in accordance with its internal legislation.
No state can force another to hand over a criminal to it when there is no compliance with these actions in the internal laws of the country. This nuance in global law is often taken advantage of by fugitives from justice.
Instead of results
To summarize my note, I would like to say a few conclusions:
- Extradition is understood as the extradition of a person guilty of a criminal offense to representatives of another state.
- This form of relationship is possible only between countries that have signed a bilateral agreement.
- To trigger extradition, certain conditions must be met.
- Not all countries fulfill such conditions, and without a cooperation agreement, such a request can only be satisfied at the request of another state.
Whom is Russia extraditing?
The Russian Federation is a party to:
- most international treaties that are the legal basis for the extradition of lawbreakers;
- a number of bilateral agreements providing for extradition.
Such documents oblige countries to cooperate when there is a need to extradite people who have committed a crime.
The fact of Russia's participation in treaties on the extradition of criminals concluded with several powers or between two parties does not deprive the state of the right to independently decide when extradition in criminal proceedings will occur and when not. The Criminal Code and the Code of Criminal Procedure of the Russian Federation clearly stipulate who can be extradited for prosecution on criminal charges or punishment for such proven charges:
- Persons who have citizenship of another country and have committed an atrocity on the territory of another state.
- A stateless person (a person without nationality or citizenship) who has committed a crime outside the country where he is located.
Russian legislation does not provide for the extradition of a Russian citizen as a criminal. This is enshrined in the Constitution of the state and in Article 13 of the Criminal Code.
According to the laws of Russia, it is allowed to extradite or transfer those accused of a crime:
- in accordance with existing treaties between the Russian Federation and other countries;
- based on the principle of reciprocity, when in a similar situation, the country requesting the criminal will also extradite the requested person to our state;
- subject to the exchange of criminals.
All conditions that make the extradition of a criminal legal, from the point of view of domestic legislation, must be fulfilled in a mandatory manner.
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.
When is extradition possible?
The conditions for extradition in criminal law vary depending on the legal framework of the powers. However, some uniformity can still be observed.
If law enforcement agencies have found out who the culprit of the crime is and where he is hiding, the state has the right to put forward a request for his extradition to carry out justice.
However, a request is possible only in the following cases:
- The crime was recorded in the region of the power requesting the accused.
- The crime was committed against this country and caused it significant damage and harm.
- The criminal is endowed with the citizenship of that country or has no civic responsibilities to any country.
Proof of the above is a prerequisite for considering a request and formulating a response to it.
Having reviewed the request and determining further actions, the state in which the violator is located must take into account:
- whether in a particular situation there is identity between the characteristics of the crime;
- what punishment will be applied to the criminal in the country that requested him to carry out justice.
The extradition of a criminal, from the point of view of Russian legislation, can only be carried out if the specified crime is also criminally punishable in the Russian Federation.
In addition, extradition is impossible if the country that requested the subject imposes the death penalty for the crime committed. Since Russia has introduced a moratorium on the death penalty, it does not extradite persons if they face a similar punishment in another country.
Among the conditions that must be met when extraditing a subject are also:
- The guilt of the requested person has been thoroughly proven.
- If the person being punished fled the state after the sentence was passed, the request must be accompanied by a sentence issued by the state of the requesting country.
- Documented assurances from the requesting country that the extradited person will be tried only for the act specified in the request.
If the above formalities are not observed, the request will be rejected.
The Code of Criminal Procedure of the Russian Federation also stipulates that the following conditions must be present:
- a crime committed by a criminal is punishable by at least one year of imprisonment;
- the sentence imposed is imprisonment for a period greater than 6 months.
In other cases, the issue of extradition will not be considered.
Conditions under which issuance is made
As mentioned above, extradition of persons to another country at its request is not an obligation. This is only the right of a power to respond to the appeal of another state. The procedure becomes mandatory only if agreements are concluded between the parties providing for mutual legal assistance in the conduct of criminal cases.
Grounds for refusal of extradition
All criminals are not subject to transfer. Treaties and Conventions stipulate in what cases extradition is possible. Extradition usually takes into account the factor of “double criminality”. This means that the offense is an offense in both states at the time of the request.
The concluded agreements stipulate situations when refusal of extradition is allowed. In most cases, persons are not extradited if:
- there are fears that they will be subjected to torture;
- criminals may be subject to death penalty;
- We are talking about political persecution.
The legislation of each individual state provides its own grounds for rejecting incoming extradition requests.
You can find out more about extradition in Ukraine and other countries on our website.
Reasons for refusal
In a number of cases, a state may refuse to extradite a person to face justice in the state that requested his extradition. Some of them are internationally recognized. Others arise from the peculiarities of Russian legislation.
The exception is countries that are members of the European Union. An agreement was concluded between them on the extradition of the criminal, regardless of which country of the union he is a citizen of. This emphasizes the openness of relations between the countries united in the union.
In addition, the following can be briefly mentioned as internationally accepted reasons for refusal:
- the subject cannot be convicted of an act if the statute of limitations has passed;
- a private charge has been brought against him;
- the subject has received official asylum in the country where he is located;
- there are legitimate reasons that make extradition impossible.
Russian laws also provide for special cases when a country denies an extradition request.
This happens in the following situations:
- If the extradition of a criminal may entail a threat to the security of the Russian Federation.
- If there is a suspicion that the extradited person will be subjected to torture or his dignity will be humiliated.
- If the crime committed by a person should be studied by military, and not criminal law.
- If the crime is considered political.
- If the requested person is persecuted in the requesting State for political, racial, national or other similar reasons. In this case, it does not matter whether the Russian Federation gives this citizen asylum or not.
- If there is a possibility that the offender will be prosecuted for racial, religious or political reasons other than the specified crime.
- If in the Russian Federation legal proceedings are already underway against this person for the same crime or a sentence has already been passed and the offender is serving his sentence.
In these cases the person will not be extradited. But this does not mean that it will escape justice altogether. The trial will be carried out according to Russian laws.
In addition, the legislation of the Russian Federation provides for two more options for extradition:
- Extradition for a certain time (if a person is under investigation in the Russian Federation or is serving a sentence, and during this time the statute of limitations on the charge for which his extradition is requested may expire).
- Delay in extradition (when the requested subject must serve a sentence in the Russian Federation for a crime, and only then will he be extradited for a subsequent trial).
That is, in the fight against global crime, the Russian Federation takes a position in which it strives for positive cooperation with other states, while trying not to infringe on Russia’s interests in complying with the rule of law.
In most cases, extradition is refused if the criminal is a citizen of the country where he is trying to escape justice.
Basic classifications of extradition, types
Analyzing the legal framework from an international and national perspective, we can distinguish several classifications of extradition:
- regulatory (from where and to);
- target;
- regulatory (presence and absence of agreements);
- subjective.
Extradition (surrender of criminals) is a form of international cooperation between states in the fight against crime.
In relation to the Russian Federation, regulatory extradition involves:
- Extradition of a citizen from the Russian Federation upon an application sent from a foreign state.
- Extradition of a person to another state upon a request sent from the Russian Federation.
The legal classification provides for the presence in the country's legislation of grounds for the extradition of citizens. In this aspect, two types of extradition are used:
- based on the principles of reciprocity;
- based on legal acts of both international and national nature.
Targeted types of extradition are used to carry out the following:
- execution of the sentence;
- court, that is, the administration of justice;
- persecution.
Subjective grounds depend on the citizenship of foreign violators of the Law who are subject to extradition. From the point of view of Russian Legislation, the issuance is distinguished:
- citizen of Russia;
- persons with foreign citizenship;
- a person who has citizenship of two countries at once;
- stateless persons.
In addition to extradition based on a legal act, transfer can also be carried out between countries not bound by such a treaty, upon request.
To date, the Russian Federation has signed over 300 agreements with various states, the main purpose of which is to provide mutual assistance of a legal nature. In addition to provisions on extradition, they include treaties on criminal prosecution, judicial proceedings, as well as procedural and investigative actions.
Extradition mechanism
The extradition picture is a chain of events in which written documentation of all stages of the process plays an important role.
It looks like this:
- The transmission of information from the initiating state that a certain person is wanted in connection with criminal prosecution and there is reason to believe that he is located in the territory of the requested country.
- In the Russian Federation, a search and detention of the subject of the request is organized, and a message about the execution of the detention is sent to the country that sent the request.
- Having received notification of the detention of the person in question, the country sends official confirmation that the person is still wanted and the suspicion of his guilt has not been removed, and requests that the person be detained and held in custody until a request for extradition is issued and the matter is resolved positively.
- The case is transferred to the local prosecutor's office, where the detainee is sent.
- The Prosecutor's Office acts in accordance with the instructions of the Prosecutor General's Office. The arrested person must be taken into custody, and law enforcement agencies are investigating the circumstances surrounding possible extradition.
- The initiator of the search and arrest of the criminal is given 40 days to submit a request for the extradition of the criminal element. If no corresponding request is received, the detainee is released. Otherwise, his term of imprisonment is extended by the period established by the Code of Criminal Procedure.
- During the period when the suspect is under arrest, law enforcement agencies are required to conduct a check on the possibility of extradition of this person.
- If the verification confirms the possibility and legality of extradition, a corresponding document is signed, the signing of which must be notified to the subject awaiting extradition.
- If the state has grounds for refusing extradition, the detainee is released from custody.
The mechanism for preparing extradition is clearly developed and requires mandatory compliance with all formalities, since in international law countries strive to avoid any inaccuracies in the implementation of multilateral agreements.
Features of extradition from some countries
Often, citizens fleeing justice mistakenly choose countries that are believed to not extradite the requested citizens. This includes Israel. It is believed that extradition from this state is extremely rare.
Find out which countries have an extradition agreement with the United States here.
Learn more about extradition with other countries in the video below.
Extradition from Israel
Each case in Israel is considered separately. If a state with which there is no treaty extradites a requested criminal to the Israelis, the latter are also ready to respond positively to similar requests.
When deporting foreigners or their own citizens, this is also possible; the Israeli side demands that the preventive measure correspond to the measures provided for such crimes in Israel.
Extradition from Israel to Russia and other countries often involves serving a sentence on Israeli territory. Citizens will not be extradited if they face the death penalty in their homeland. If a person is detained in Israel for less than a year for a crime, the extradition request will not be granted.
Despite the above, Israel is a more reliable refuge than European states. Extradition from Italy, France, Germany and other European countries occurs much more often.
If there is a mutual extradition treaty between countries, you can do without Interpol
Extradition from Germany
If a person expects a fair decision, Germany would be a good option. In the judicial practice of this country, there are many precedents when the requested citizen was not extradited from Germany to Russia or another state.
Making a decision on extradition and appealing it
When the guilt of the criminal is proven and all the conditions necessary for the implementation of extradition are satisfied, the decision to appoint it in Russia is made by the prosecutor general or the person acting as his deputy.
The subject of extradition must be informed of the decision to extradite a person to a foreign state. At the same time, all his rights must be explained to him. Including the right to appeal this decision of the Prosecutor General of Russia.
An appeal against a decision on extradition in Russian criminal law is provided for in Article 463 of the Criminal Procedure Code.
You can file a complaint against such a decision within ten days after it comes into force, which also occurs ten days after the decision is made by the prosecutor general or his deputy.
If a complaint is received by the court, all materials and evidence on the case are provided no later than thirty days. Based on these documents, one of two possible decisions is made:
- leave the decision in force and not satisfy the complaint;
- the complaint is considered justified, and the prosecutor’s previous decision is cancelled.
When the decision remains in force, the procedure begins for the transfer of the criminal by the authorities of the Russian Federation to the authorities of a foreign state.
When an extradition decision is considered overturned, the detained subject is not always released. A refusal to extradite does not mean that a person is found innocent. There may be conditions that prevent extradition, although the guilt of the criminal is obvious and proven.
In such a situation, according to the Constitution of Russia, as well as certain clauses of international agreements, legal proceedings take place according to Russian laws. In accordance with them, the punishment is assigned, and the accused will also have to serve it on the territory of our country.
Extradition of persons who have committed a crime
Extradition of persons who have committed a crime (extradition)
, is the transfer of a criminal to another state for trial or enforcement of a sentence, carried out in accordance with international treaties and national criminal and criminal procedural legislation.
Extradition is possible only if a crime has been committed and not any other offense.
The Constitution of the Russian Federation establishes:
“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” (Part 2 of Article 63).
The conditions and procedure for issuance are regulated by national (domestic) legislation and international treaties. The state on whose territory the criminal finds himself acts at its own discretion: either extradite the required person or punish according to its laws.
According to Art. 61 of the Constitution of the Russian Federation, a citizen of the Russian Federation cannot be extradited to another state. This provision is also enshrined in criminal law. It is shared by many modern states.
The question of extradition of the criminal arises
in cases where a person who has committed a crime in one country or against the interests of this country or is obliged to serve a sentence is in another country.
The rule on the extradition of foreign citizens and stateless persons who have committed a crime outside the Russian Federation and are located on the territory of Russia, enshrined in Art. 13 of the Criminal Code is competing with Part 3 of Art. 12 of the Criminal Code. In this regard, in the presence of a mutual bilateral agreement, preference should be given to the extradition of the criminal rather than punishment.
An exception to international treaties on extradition of criminals is the right of asylum
. “The Russian Federation,” is declared in Art. 63 of the Constitution of the Russian Federation, - provides political asylum to foreign citizens and stateless persons in accordance with generally recognized norms of law.”
Russia does not allow the extradition to other states of persons persecuted for their political beliefs.
Interpretation of criminal law
Implementation of criminal law
inextricably linked with its interpretation.
Interpretation is usually understood as the clarification
or clarification of the meaning of the criminal law, the identification of the will of the legislator, expressed by linguistic means in the form of a legal norm, for the purpose of its precise application.
Interpretation is not
at any stage of implementation of the law.
It is an integral part of the process of applying criminal law. The need for it
arises mainly because the law is of a general nature and provides for typical characteristics, while developing life situations and real relationships are always specific and differ in a number of individual characteristics. The interpretation of the law contributes not only to its correct application and, in connection with this, the strengthening of the rule of law, but also to the further improvement of criminal legislation.
The interpretation of the law varies:
by subject, methods, volume and goals.
By subject
, which explains the law, distinguishes: legal, judicial and doctrinal interpretation.
Recognized as legal
an interpretation given by an authority that is authorized by law to do so. Based on the meaning of Art. 103 of the Constitution of the Russian Federation, the right of interpretation belongs to the State Duma of the Federal Assembly of the Russian Federation. Consequently, legal interpretation is carried out only by the body that adopted the criminal law. This can only be done in the form of resolutions of the State Duma. Such an interpretation has legal force, i.e. is mandatory for entities implementing criminal law.
Some authors distinguish authentic interpretation as an independent type (authentic, authentic from Greek: genuine, true, based on the original source)
. This position is based on the fact that the interpretation emanating from the legislator essentially constitutes law. However, it is not. The interpretation, including that given by the legislator himself, does not create a new norm; it is limited by the framework of an already adopted act and is aimed at revealing the meaning of the law as a whole, clarifying its goals and establishing the scope and boundaries of action. Consequently, the authentic interpretation coincides with the legal one. The obligatory nature of such an interpretation for all bodies, institutions, officials, and citizens of Russia does not change its legal nature.
Judicial or casual interpretation
is the interpretation given by the court.
It can be of two types.
Firstly, the interpretation given in the verdict, ruling or ruling of a court of any instance in a specific case.
It, of course, has binding force, but is limited by the scope of the case and has specific addressees:
convicted or acquitted persons, government bodies, institutions and organizations to which these decisions relate to one degree or another. Secondly, the interpretation of the criminal law is given by the Plenum of the Supreme Courts of the Russian Federation. Its decisions are adopted only for lower courts, but they are also important for other bodies that apply criminal law (for example, for investigative bodies when qualifying crimes in cases under investigation).
Towards doctrinal interpretation
This includes explanations of laws given by scientific institutions, legal scholars, and practical workers in reports and lectures, in newspaper and magazine articles, in comments to the Criminal Code, and materials summarizing judicial practice. Such an interpretation is not binding, but it contributes to a deep and correct knowledge of criminal legislation, the practice of its application, improving the quality of the administration of justice in criminal cases, the formation and improvement of criminal laws.
Sometimes doctrinal interpretation is also called scientific
. However, this is done unreasonably, since it may not be related to science, and may not be based on the theory of criminal law, but on a personal, subjective perception of a criminal law phenomenon.
Based on the obligation of interpretation
in the literature, not without reason, it is proposed to distinguish two main types of it: mandatory, which includes legal (authentic) interpretation, and judicial interpretation, optional interpretation, covering doctrinal interpretation.
The methods differ:
grammatical (philological), systematic, historical and logical interpretation.
Grammatical (philological) interpretation
consists in understanding the meaning of the criminal law through etymological and syntactic analysis of its meaning. Concepts, terms, and words used in law often require precise definition. The Plenum of the Supreme Court of the Russian Federation often refers to this method of interpretation.
Systematic interpretation (or rather, systematic)
consists in comparing the analyzed provision of the law with another law.
Consequently, this technique involves identifying all others, both criminal law and norms of other branches of law, which in one way or another can affect the understanding of criminal law. This is due to the fact that criminal law is not a simple set of norms, where the content and meaning of each of them can be derived from itself, but represents, as already indicated, a system of norms in which the place, meaning and content of each individual norm is determined by other norms. Thus, it is impossible to understand the content of the norms of the Special Part of the Criminal Code
without referring to its General Part. Often there is a need to compare several norms of only the Special Part. When interpreting systematically, it is often necessary to compare the norms of various branches of law. It is almost impossible to understand the content of the norms without referring to the by-laws with a blanket disposition. To understand, for example, the concept of so-called simple hooliganism, it is necessary to turn, among other things, to the norms of administrative law, where the concept of petty hooliganism is revealed.
When interpreted historically
the will and thought of the legislator are established by referring to the socio-economic and political situation in which the legislative act was adopted. This is usually done on the basis of materials that preceded the adoption of the law. In some cases of historical interpretation, it becomes necessary to refer to the text of a previously published and no longer valid law. Along with other techniques, this can contribute to the deepest penetration into the essence of the law being interpreted.
The Criminal Code contains norms that were adopted in pursuance of Russia’s international legal obligations. The historical method of understanding their essence requires that not only the domestic reasons for the adoption of the law be investigated, but also the international situation, the will of the states parties to the relevant conventions, agreements, and treaties.
Any mental activity, including grammatical, systematic and historical interpretation, must obey the laws of logic.
Therefore, in the broad sense of the word, any interpretation of criminal laws is a logical interpretation.
Interpretation by volume can be:
literal (adequate), restrictive (restrictive) and distributive (extensive).
By literal (adequate)
is understood as the interpretation of a criminal law in strict accordance with its text, when the words and meaning of the law completely coincide. It should be borne in mind that another position has been expressed in the literature, according to which literal (adequate) interpretation is not a type of interpretation by volume, since this only states the coincidence of the content and meaning of the law with its verbal expression.
With a restrictive interpretation of the law
is given a narrower, more restrictive meaning than is implied by the literal text of the law.
Common interpretation
is that the law is given a broader meaning than is implied by its literal text.
It is resorted to in cases where the literal meaning of the text is narrower than the content of the criminal law norm, and its verbal expression does not adequately express the will of the legislator. A widespread interpretation expands the scope of the law, making it possible to apply it to a wider range of cases, in relation to a larger number of persons.
The current criminal legislation is characterized by a tendency to clarify the elements of crimes and narrow the possibilities of their widespread interpretation and application. However, this cannot be completely ruled out.
The common interpretation has some superficial resemblance to analogy.
However, the difference between them is fundamental. An analogy presupposes the absence of a law, a gap in legislation, and means the application of a norm of criminal law to a case not directly provided for in the law, but similar to a particular crime.
A restrictive and broad interpretation is used quite rarely. The literal interpretation is most often used.
In works on criminal law, as a rule, interpretation by purpose is not distinguished. However, the purposes of interpretation are different, and depending on them, the general legal literature reasonably recognizes:
interpretation-clarification and interpretation-clarification.
Interpretation-clarification
is a necessary element of the process of implementing the norms of criminal law. The subject of law “for himself” interprets the norm for the purpose of its application. For example, an investigator, a prosecutor, a judge understand the content of the concept of a gross violation of public order when classifying an act as hooliganism, a secret method of seizure when assessing actions as theft, etc.
Interpretation-clarification
(“for others”) occurs in cases where it is given for the application of the law in the future by other authorities. These, in essence, are the decisions of the Plenum of the Supreme Court of the Russian Federation.
Control questions:
1. What is meant by criminal law, what features make it possible to distinguish it from other normative acts?
2. What is the structure of the Criminal Code of the Russian Federation?
3. What is a criminal law norm and what does it mean?
differs from the article of the Criminal Code of the Russian Federation?
4. What is meant by ultra-activity of the criminal law?
5. What are the main ways (techniques) of interpreting criminal
law?
