Robert Amsterdam

The Lugovoi Extradition Request: Another case of à la carte legalism

The next chapter in the Alexander Litvinenko poisoning opened this week as the UK identified its prime suspect in the case. Andrei Lugovoi, who returned to Russia after leaving a trail of radioactivity behind him in London, had met with Litvinenko for tea at the Millennium Hotel on November 1 last year, apparently the day that Litvinenko was poisoned.

Russian officials have rejected the UK's request to extradite Lugovoi, making vague references to the Russian constitution's limitations on extraditions of Russian citizens to foreign countries.

Moscow's decision to shelter a murder suspect once again proves that the Russian legal system is politically-driven and dysfunctional.

Article 61 of the Russian Constitution says that a Russian citizen "may not" be extradited from Russia to another country. Article 63(2) uses stronger language - "shall not" - to state that no extraditions will proceed where the suspect is being "persecuted for political convictions" or for actions that are not recognized as a crime in Russia. Murder is, of course, recognized as a crime in Russia. Article 63(2) goes on to state that the extradition of criminal suspects "shall be carried out on the basis of the federal law or the international agreement of the Russian Federation."

Enter the European Convention on Extradition of 1957, signed by Russia in 1996 and then ratified in 1999. The reservations or declarations that Russia made when joining the Convention were about taxation cases and procedural considerations that do not apply to the Lugovoi extradition request.

Furthermore, if we go back to the Russian Constitution, Article 15(4) states the following:

"The universally-recognized norms of international law and international treaties and agreements of the Russian Federation shall be a component part of its legal system. If an international treaty or agreement of the Russian Federation fixes other rules than those envisaged by law, the rules of the international agreement shall be applied."

Can Russia credibly assert that it joined the Extradition Convention with no intention ever to extradite a Russian citizen suspected of murder?

While, as described above, the Russian Constitution declares that Russian citizens "may not" be extradited - and while the Extradition Convention contains an opt-out clause regarding a state's own nationals, how can Russia expect comity in international legal cooperation if it invokes these narrow exceptions in all cases involving its citizens - especially for a grave crime such as murder? And what signal does this send to Russian criminals or would-be wrongdoers about the consequences of committing serious misdeeds abroad?

In November 2006, Russian prosecutors signed a memorandum of understanding with their British counterparts, intended to facilitate extraditions between them. Clearly, that agreement is now in tatters.

After desperately seeking extradition to Russia of various political opponents over the past several years, the Kremlin's refusal to yield one of its nationals in this remarkable murder case is yet another example of "à la carte" legalism - invoking the law when it achieves objectives and ignoring it when convenient to do so.

Just look at the expropriation of Shell at Sakhalin on environmental grounds, and the imminent expropriation of BP at Kovykta on unfair production quota grounds.

The Kremlin clearly enjoys having its cake and eating it too.

But Moscow should not be surprised at how European courts respond to its requests for judicial cooperation, or how Europe reacts to the extradition requests of a regime that perpetrates fraudulent prosecutions and grand-scale state-sanctioned theft, using its police and investigators as tools of intimidation. To comply with requests from Russia's prosecutorial system demands that it meet minimum levels of modernity, justice and legal rigour. All are sorely lacking.