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II. THE LUGOVOY EXTRADITION CASE

PUBLIC INTERNATIONAL LAW

Published online by Cambridge University Press:  13 February 2008

Jacques Hartmann
Affiliation:
Jesus College, Cambridge.

Abstract

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Type
Current Developments: Public International Law
Copyright
Copyright © 2008 British Institute of International and Comparative Law

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References

1 Sometimes spelled ‘Logovoi’.

2 For an official account of events see Hansard HC Deb vol 463 cols 21–2 (16 July 2007). See also Evidence of the Minister for Europe to the FAC, ‘Global Security: Russia’ (18 July 2007). HC 459-iii, Qs 95–155.

3 Hansard HC Deb vol 692 col WS37 (22 May 2007).

4 European Convention on Extradition, Paris, 13 Dec 1957 (ETS No 24).

5 See Statement by Prosecutor General's Office spokeswoman, Marina Gridneva, to Interfax (22 May 2007) <http://www.interfax.ru/e/B/0/28.html?id_issue=11751107>.

6 Hansard HC vol 463 col 22 (16 July 2007).

7 By 25 July 2007, however, nothing had changed in the visa regulations of either country. See answer by the Spokesman of Russia's Ministry of Foreign Affairs, ‘Answers a Media Question Regarding State of Affairs with UK in Consular/Visa Sphere’ (1198-25-07-2007) <http://www.mid.ru/>.

8 See ‘Russia Set to Respond to British Expulsion’ Reuters (17 July 2007).

9 See ‘Response to Russian Foreign Ministry Statement’ (19 July 2007) <http://www.fco.co.uk/>.

10 See ‘UK “behind Litvinenko poisoning”’ BBC News (31 May 2007) <http://news.bbc.co.uk/2/hi/europe/6706921.stm>. Thus far neither Government has acknowledged any connection with either of the two persons, which rules out the possibility of a claim of State immunity. Lugavoy stood successfully as a candidate for the Duma and he now enjoys parliamentary immunity in Russia, Daily Telegraph, 12 Dec 2007 (<www.telegraph.co.uk/news/mainjhtml?xml2/news/2007/12/04/wrussian204.xml>).

11 See interview, ‘Litvinenko Case Could be Called Berezovsky Case—Former FSB Chief’ Interfax (2 Aug 2000) <http://www.interfax.com/17/298975/Interview.aspx>.

12 See ‘Russian MFA Information and Press Department Commentary on Russian-British Relations’ (1160-17-07-2007) <http://www.mid.ru>. See also Hansard HC Deb vol col 259WH (25 July 2007).

13 See ‘Russia Questions ‘Berezovsky Murder Plot Arrest’ The Guardian (26 July 2007).

14 See ‘Russia Expels 4 British Diplomats’ International Herald Tribune (19 July 2007). In relation to measures taken by the UK Government see also replies of the Minister for Europe, 18 July 2007, Foreign Affairs Committee, Global Security: Russia, HC 459-iii, Q95–Q115.

15 Memorandum of understanding on cooperation between the Office of the Prosecutor General of the Russian Federation and the Crown Prosecution Service of England and Wales (Feb 2006) <http://www.cps.gov.uk/publications/agencies/opgrf_cps.html>.

16 Hansard HC vol 463 col 25 (16 July 2007). British police visited Russia at an early stage in their inquiries.

17 European Convention on Extradition (1957) (ETS No 24) Art 1.

18 Russia has also made a specific declaration in its instruments of ratification stating, in accordance with Art 61(1) of the Russian Constitution, that ‘a citizen of the Russian Federation may not be extradited to another State’.

19 See Explanatory Report to the European Convention on Extradition, (ETS No 24) Art 6.

20 This exception is included in the UN Model Treaty in Extradition (A/RES/45/116, 1990), which in Art 4 mentions nationality as an optional ground for refusal of extradition.

21 cf G Gilbert, Transnational Fugitive Offenders in International Law: Extradition and Other Mechanisms (Brill, Leiden, 1998) 175–84.

22 See, eg, comments of the Attorney General in ‘Lugovoi “must face trial in UK”’ The Guardian (25 May 2007). See also Hansard HC Deb vol 170 cols WA908–WA909 (18 Apr 1990).

23 See, K Brookson-Morris, ‘Conflicts of Criminal Jurisdiction’ (2007) ICLQ 659; Police and Justice Act 2006, sch 13, paras 4 and 5 (not yet in force), amending the Extradition Act 2003.

24 European Convention on Extradition (1957) (ETS No 24) Art 6(2).

25 On the principle see generally International Law Commission ‘Preliminary Report on the Obligation to Extradite or Prosecute (“aut dedere aut judicare”)’ (7 June 2006) UN Doc A/CN.4/571.

26 During a debate in the House of Commons, a suggestion was made for a Russian trial under British law, similar to the Lockerbie case. It was rejected. Hansaard HC vol 463 cols 29–30 (16 July 2007).

27 Hansard HC Deb vol 483 col 22 (16 July 2007); Hansard, HC vol 463, col 259 WH (25 July 2007)

28 The present article will not comment of the expulsion of diplomats or the tightening of visa requirements. It suffices to say that as parties to the 1961 Vienna Convention on Diplomatic Relations both have the explicit right, at will, to declare any member of a diplomatic staff persona non grata—Vienna Convention on Diplomatic Relations (1961) Art 9.

29 Hansard HC vol 463 cols 21–2 and col 27 (16 July 2007).

30 See generally G Danilenko, ‘The New Russian Constitution and International Law’ (1994) 88 AJIL 451.

31 Art 15(4) of the Russian Constitution: 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. For an English version see <http://www.constitution.ru/>.

32 The Constitution of the Russian Federation, Art 15(1).

33 ibid Art 61(1).

ibid

34 Unlike, for instance, Costa Rica's Constitution which states that: no Costa Rican may be compelled to abandon the national territory, Constitución Politica de la República de Costa Rica (1949) Art 32.

35 For the facts of the case see Garabayev v Russia (ECtHR, 7 June 2007) Application no 38411/02.

36 cf The Constitution of the Russian Federation, Chapter 2 (Arts 17–64).

37 ibid Art 135.

ibid

38 The legislative chamber of the Federal Assembly.

39 cf B Tuzmukhamedov, ‘The ICC and Russian Constitutional Problems’ [2005] J Intl Criminal Justice 621–6.

40 See, eg, H Duffy, ‘National Constitutional Compatibility and the International Criminal Court’ [2005] 11 Duke J Comparative & Intl 5–38.

41 cf Z Deen-Racsmány, ‘Lessons of the European Arrest Warrant for Domestic Implementation of the Obligation to Surrender Nationals to the International Criminal Court [2007] Leiden J Intl L 170–1.

42 ibid.

ibid

43 Hansard HC vol 463 col 22 (16 July 2007).

44 European Convention on Human Rights (1954) Art 5. The European Court of Human Rights has been very firm on this point. cf Bozano v France, (ECtHR, 18 Dec 1986) Application no 9120/80.

45 cf generally IA Shearer, ‘Non-Extradition of Nationals’ (1963–6), Adelaide L Rev 273–309; and M Plachta, ‘(Non-)Extradition of Nationals: A Neverending Story’ (1999), Emory Intl L Rev 77–159.

46 Statute of the International Tribunal for the Former Yugoslavia since 1991, adopted by Security Council Resolution 827 (25 May 1993) Art 19(2); Statute of the International Tribunal for Rwanda, adopted by Security Council Resolution 955 (8 Nov 1994), Art 18(2); Rome Statute for the International Criminal Court (1998) Art 102.

47 M Plachta, ‘The European Arrest Warrant: Revolution in Extradition’ (2003) 11 Eur J Crime, Criminal L and Criminal Justice 178–94.

48 See United Kingdom Extradition Act (2003) s 194.

49 eg the Lockerbie case. The argument is not, however, limited to cases where the requested subject has a relationship with the requested State. A similar argument could be advanced in relation to constitutional fundamental rights such as the prohibition of capital punishment (See eg Venezia v Ministero di Grazia e Giustizia (Italian Constitutional Court, 27 June 1996) Judgment No 223.79, 815 Rivista Diritto Internazionale).

50 Vienna Convention on the Law of Treaties (1969) Art 27.

51 Qatar v Bahrain (Jurisdiction on admissibility) [1994] ICJ Rep 112, paras 24–5.

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