The institute of extradition in Russian and international law

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The fight against crime has always required the combined efforts of various states, as clearly demonstrated by the provisions regarding the extradition of criminals in ancient legal documents. According to Article 14 of the Treaty of Rus' with Byzantium of 911, "if the criminal does not return to Rus', then let the Russians complain to His Royal Majesty the Greeks, and let him be seized and forcibly returned to Rus'. Let the Russians do the same to the Greeks if the same thing happens (to them)." S.S. Belyaev, R.M. Valeev,
V.M. Volzhankina, and other authors associate this legal act with "the beginning of the history of the extradition of criminals in Russia" [2]. It should be noted that in the Old Russian state, unlike in the ancient world, where extradition issues were primarily resolved with respect to individuals who had committed state crimes or politicians whose actions were disapproved by the population of a given country, individuals who had committed common crimes were subject to extradition.
However, in both the ancient and early medieval laws, the institution of extradition was regulated in very general terms, primarily due to the underdevelopment of international relations and connections, which made extradition extremely rare.
In the 18th century, industrialization, rapidly developing in Western Europe, and the emergence of new modes of transportation triggered the movement of significant populations from one country to another. Law enforcement agencies were faced with the challenge of combating theft, robbery, and robbery committed on railways. Consequently, law enforcement agencies began to focus more on cooperation in combating cross-border crime. Cooperation was carried out through the conclusion of bilateral extradition treaties.
The term "extradition" was first introduced into legal use in France by the Decree of February 19, 1791, "On Limiting the Number of Revolutionary Committees," which regulated certain procedures for the extradition of criminals. In the first third and second half of the 19th century, a number of European countries had already adopted extradition laws. The first such law, adopted in Belgium in 1833, contained provisions not only regulating the extradition of criminals but also governed issues related to the granting of political asylum.

However, the lack of a unified approach to defining the concept and conditions of extradition reduced the effectiveness of this institution. To this day, a clear definition of the procedure and process for extradition remains lacking, which often leads to violations of the obligations assumed by states when ratifying international and bilateral extradition treaties and impacts the fight against crime, making it impossible to implement the principle of the inevitability of punishment. Thus, according to Russian Prosecutor General I.V. Krasnov, in 2023, foreign states denied Russia 114 requests to extradite individuals for criminal prosecution, 38 of which were for political reasons. Krasnov notes that, driven by political motives and violating international legal instruments regulating extradition, these states are creating problems for their citizens by retaining "murderers, smugglers, rapists, fraudsters, and other persons accused of committing crimes." Clearly, these states have not become safer.
We believe that the reasons for the refusal of extradition requests are shortcomings in the legal regulation of extradition, both under international law and under Russian legislation.

Problems of International Legal Regulation of Extradition

The institution of extradition has been an international legal concept since its inception, since the extradition of a person who has committed a crime in the territory of one state and taken refuge in another requires the voluntary cooperation of the authorities of that state. "Initial" extradition was carried out within the framework of bilateral extradition treaties. As domestic legislation developed, the institution of extradition also evolved, and bilateral treaties began to include provisions prohibiting the extradition of nationals, as well as citizens of other states persecuted for political crimes.
In the late 19th century, states began to pool their efforts in the fight against crime and conclude multilateral treaties on issues related to cooperation in this area, which included provisions on extradition. The first such treaty was the Treaty of Amiens on Extradition of 1802, concluded by Great Britain, the Netherlands, Spain, and France, which provided for the extradition of criminals who had committed crimes such as murder, deliberate bankruptcy, and counterfeiting [3].

In 1989, in Montevideo, Uruguay, Argentina, Bolivia, Paraguay, and Peru concluded a convention on international criminal law, part of the provisions of which were devoted to extradition, between 1902 and 1928, by the countries of Northern and South America has also signed a number of international conventions concerning the extradition of criminals.
In 1952, the League of Arab States adopted the Convention on Mutual Assistance in Criminal Matters, which provides, among other things, for the extradition of criminals.
In the mid-20th and 21st centuries, the UN adopted a number of conventions that, among other things, regulate extradition matters. These include: the Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948; the Geneva Convention relative to the Protection of Civilian Persons in Time of War of August 12, 1949; the Convention on Offenses and Certain Other Acts Committed on Board Aircraft of September 14, 1963; The Convention for the Suppression of Unlawful Seizure of Aircraft of 16 December 1970, the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation of 23 September 1971; the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents of 14 December 1973; the European Convention on the Suppression of Terrorism of 27 January 1977; the UN Convention against Transnational Organized Crime of 15 November 2000, and a number of others, provide for international cooperation in the fight against crimes against the peace and security of mankind, organized crime, terrorism, illicit trafficking in narcotic drugs and psychotropic substances, corruption, money laundering, sexual violence against children, counterfeiting, and others. A distinctive feature of these conventions is that they allow parties to the convention to request the extradition of criminals even in the absence of a bilateral extradition agreement, provided that both states have ratified the relevant convention.
In addition to conventions regulating criminal liability and extradition for certain crimes, the European Convention on Extradition was adopted in Paris. The Convention under commentary regulates the extradition procedure in considerable detail, defines the crimes that serve as grounds for extradition (Article 2), the specifics of refusing to extradite nationals (Article 6), statutes of limitations (Article 10), and also regulates the extradition procedure, namely, the filing of a request, supporting documents (Article 12), the right of the requested party to request additional information (Article 13), the obligation of the requested party to indicate the reasons for a full or partial refusal of extradition (Article 18), etc.
We note that the Extradition Convention contains a number of provisions that, in our opinion, hinder effective cooperation in the fight against crime, namely the prohibition on the extradition of persons who have committed political crimes (Article 3), although it does not contain a clear definition of political crimes. V.A. Chirkin notes that the concept of a political crime is absent from international criminal law. However, based on the meaning of international conventions containing the term "political crime," it should be understood as "a particularly socially dangerous act, prohibited by applicable law, committed by individual or collective actors, directed against the foundations of the state system, state authorities and their leaders, political public associations and their leaders on national, racial, ethnic, religious grounds, or political beliefs."[7] While agreeing in principle with the author's opinion, we nevertheless note that the Extradition Convention does not consider the murder or attempted murder of a head of state or members of his family to be a political crime (Article 3).
A.V. Zorin proposes defining political crimes as acts committed through deception and/or violence in the political sphere by political actors aimed at achieving political goals. It seems that this definition can hardly be considered to reflect the essence of political crimes and to allow for the classification of specific acts and the content and elements of a crime as such.
We believe that the lack of a clearly defined concept of "political crime" is one of the reasons for the refusal to extradite criminals, since such an approach allows "to regard any act as a political act, based on the relevant interests of the authorities. ... The evaluative approach is also widely used for political speculation, when a person brought to criminal responsibility for an actual crime claims that political reprisals are being carried out against him. Thus, many politicians and government officials convicted of corruption and other official crimes in their country leave for another country and justify themselves by saying that they are allegedly being persecuted for political reasons, although some of their illegal actions are quite obvious" [4].
Based on the fact that "when deciding on the extradition of a criminal, the hierarchical conflict of laws principle is of great importance, according to which the norms of international 

"We believe that international law takes precedence over national law," and that the theory of international criminal law must focus on developing clear criteria for classifying certain acts as political crimes [5]. These criteria should be supplemented in the text of the European Convention on Extradition.

Legal Regulation of Extradition in the Legislation of the Russian Federation

The institution of extradition in the Russian Federation is regulated by norms of various branches of law, including the aforementioned international conventions, as well as Russian constitutional, criminal, and criminal procedural law. However, a unified legal act devoted to the issue of extradition of criminals is currently absent from Russian legislation. This often leads to errors in law enforcement practice, as the Supreme Court of the Russian Federation has noted, providing clarification on this issue. At the same time, one of the monuments of Russian law is the Law "On the Extradition of Criminals at the Request of Foreign States", which was issued at the end of December 1911 and entered into force in January 1912, summarizing the genesis of the institution of extradition in Russian law in the 19th century [1]. In the second half of the 19th century, the Russian Empire actively cooperated with foreign states in matters of extradition of criminals. As K.S. Rodionov points out, during this period, 24 bilateral agreements were concluded with 17 countries, which included not only European, but also North and South American, African, and East Asian states [6].
The Law "On the Extradition of Criminals at the Request of Foreign States" contained provisions regulating both the principles of extradition and its procedure. According to the law, extradition was subject to persons accused of committing general criminal or political crimes, and this was done on the basis of concluded treaties or on conditions of reciprocity; They could not be extradited to a foreign state if they were already subjects of the Russian Empire prior to the request. Matters related to extradition were considered by ministers of the government of the Russian Empire. If they deemed the request justified, it was transferred for execution to the Minister of Internal Affairs, who ordered the location of the person subject to extradition and their detention. If several states submitted justified requests for the extradition of the same person, the person was extradited to the state where the crime was committed.
Requests for the extradition of persons accused of committing crimes to the Russian Empire by foreign states were sent through the Ministry of Internal Affairs.
It should be noted that, according to the note, bilateral treaties on extradition concluded after the adoption of the law could not contain provisions that contradicted the law. If extradition was carried out on the basis of treaties concluded prior to its adoption, the rules and procedures stipulated by the relevant treaties applied. In our opinion, the undoubted advantage of this law is that it was included as an appendix to the Charter of Criminal Procedure.
Currently, the provisions governing the extradition procedure are included in the Criminal Procedure Code of the Russian Federation (Articles 460-468). However, it lacks a statutory definition of the surrender of a criminal for criminal prosecution or the execution of a sentence, nor does it define extradition. Issues related to the definition of these concepts have been discussed in legal literature.

A.E. Kosareva proposes considering the surrender of a person for criminal prosecution or the execution of a sentence as "a set of criminal procedural actions and decisions of the competent authorities of the requested state, in connection with the consideration, resolution, and actual execution of the requesting state's request for the forced return to its territory of a person suspected, accused, or convicted of a crime, for the purpose of criminal prosecution or the execution of a sentence." While agreeing in principle with the proposed definition of extradition for criminal prosecution and execution of a sentence, we nevertheless note that criminal procedure scholars have formulated an opinion on the need for a broader approach to extradition and its consideration within the framework of extradition, since the latter includes not only the surrender of a person for criminal prosecution and execution of a sentence, but also a set of procedural and investigative actions aimed at "searching for, detaining, taking into custody, and transferring a person to a foreign state (or an international tribunal, an international criminal court) on the basis of and in the manner established by international treaties of the Russian Federation and national legislation, or on the principle of reciprocity for the purpose of carrying out criminal prosecution, administering justice, or enforcing a final court sentence."
The institution of extradition for criminal prosecution and execution of a sentence in criminal procedure law is regulated by 

This not only applies to the actual extradition of individuals at the request of foreign states, but also to requests for legal assistance and the extradition to the Russian Federation of individuals accused of committing crimes on its territory.
Research conducted during the preparation of this article revealed that investigators rarely encounter situations requiring extradition, lack the skills to draft the criminal procedural documents necessary for submitting requests, and consider criminal procedural regulations in this area insufficient.
It appears that improving criminal procedural legislation in this area requires introducing the term "extradition" into criminal procedural law and establishing a specific list of documents that must be drafted to support an extradition request. Art. Article 460 of the Criminal Procedure Code of the Russian Federation contains provisions regulating the form of a request from the Russian Federation to a foreign state for the extradition of a person located in its territory for criminal prosecution and the execution of a sentence. However, criminal procedure legislation does not regulate the actions of an investigator faced with a situation requiring extradition, nor the form and content of the procedural document that the investigator must draw up and submit to the prosecutor's office for extradition matters.
Furthermore, neither the Criminal Procedure Code of the Russian Federation nor the Criminal Procedure Code of the Russian Federation contain a list of bilateral treaties or international conventions ratified by the Russian Federation, on the basis of which the extradition of a person for criminal prosecution and the execution of a sentence may be carried out. Previously, such a list was included in the appendix to Resolution No. 11 of the Plenum of the Supreme Court of the Russian Federation dated June 14, 2012, "On the practice of courts considering issues related to the extradition of persons for criminal prosecution or the execution of a sentence, as well as the transfer of persons for serving a sentence," but it has now been removed. We also believe it would be appropriate to develop a list of offenses under the Criminal Code of the Russian Federation, the presence of which in the actions of individuals who have committed a crime in the Russian Federation and taken refuge in foreign countries provides grounds for requesting their extradition.

Conclusion

The institution of extradition has undergone a long history of development. Even in ancient law, it had an international character, as provisions on the extradition of criminals were contained in bilateral treaties between states. However, by the early 19th century, states began to join forces in the fight against crime and conclude multilateral treaties, which included, among other things, provisions on the extradition of criminals.

In 1957, the European Convention on Extradition was adopted, which remains in force today. This concept regulates the refusal to extradite individuals persecuted for political reasons. However, it does not define the concept of a political crime. This, on the one hand, allows individuals who have committed ordinary crimes to claim political asylum. On the other hand, it provides grounds for member states to unreasonably refuse to extradite such individuals based on short-term political interests.
In the Russian Federation, the institution of extradition is regulated by international, constitutional, criminal, and criminal procedural law. A shortcoming of criminal procedural regulation is the lack of clear instructions in the law setting forth the investigator's actions. When a situation arises during the investigation that requires an extradition decision, it is necessary to develop and adopt a law "On Extradition" and include a list of the Russian Federation's bilateral and international treaties on extradition as an appendix.

About the authors

Sergey E. Ponomarev

Author for correspondence.
Email: s.e.ponomarev@mail.ru
ORCID iD: 0009-0004-8450-9732
Russian Federation, 1 Lenin st, / 4 Tarskaya st, Omsk, 644043

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