Recently, there has been a trend in which citizens who have committed significant crimes and who want to avoid punishment are trying to solve the issue of avoiding criminal liability by going “abroad”. And "abroad" is mentioned here not only in the sense of a foreign state, but also as a kind of barrier for law enforcement agencies in the search and detention of a hiding person.
Over the past decade, there have been more and more cases when Russian citizens are put on the international wanted list for the purpose of detention and subsequent extradition, but at the same time, the extradition itself, in the end, does not occur.
Before analyzing the reasons for the impossibility of extradition, one should consider the procedure for declaring persons on the international wanted list for the purpose of their extradition and the requirements for the above procedure.
To implement the procedure for declaring an international wanted list, there is a system of interaction between law enforcement agencies of the country initiating the search, the National Central Bureau of Interpol of the initiating country, the General Secretariat of Interpol, the national central bureaus of the member countries of Interpol and the National Bureau of Interpol of the country where the wanted person was found.
In order to put a person on the international wanted list for the purpose of extradition and achieve a result, it is necessary to go a long way and successfully fulfill all the requirements provided for by the legislation governing the activities of Interpol.
The international wanted list may include persons who have left Russia, evading criminal liability and serving sentences for crimes for which, in accordance with the current legislation or a court verdict that has entered into legal force, a punishment of imprisonment for a term of from 6 months.
Having received information that the wanted person may be outside of Russia, law enforcement agencies send a corresponding request to the National Central Bureau of Interpol.
Under Interpol law, there are eight types of notices (requests), seven of which are color-coded based on their functionality: red, blue, green, yellow, black, orange, and purple.
A request for the purpose of extradition is called a “Red Notice” and it must necessarily include a guarantee that, upon detention and arrest of a wanted person in the territory of another state, a request for extradition of this person will be sent to its competent authorities.
Criminal Defense Services
The procedure for extraditing a person to the state in whose territory he committed a crime is quite lengthy and consists of many formalities.
So, in particular, after the arrest of a wanted person, law enforcement agencies are obliged to apply to the court to determine a further measure of restraint. At the same time, it is absolutely logical that the court will satisfy the relevant petition before receiving the request for extradition, since without the application of such measures, the person may run away and hide (although, theoretically, a lawyer can achieve release on bail or a written undertaking not to leave).
In parallel, information about the detention of a person is transmitted to the National Bureau of Interpol of the country initiating the search, in our case, the Rosburo of Interpol, which notifies the relevant law enforcement agencies.
From the moment the “fugitive” is taken into custody, the initiating country of the search has a period of no more than 40 days to submit the request for extradition, as well as all documents that must be attached to it (however, in fact, the initiating country can ask for an extension of this period for another for a period not exceeding 40 days). This whole process is accompanied by numerous correspondence between countries.
After receiving the information, the body initiating the search within 10 days must send the necessary information to higher law enforcement agencies for verification. As a result of the legal analysis of the submitted documents, the General Prosecutor's Office of Ukraine directly sends a request for extradition to the authorities of a foreign state.
It is at this stage, after receiving an extradition request, that the result of the entire multi-step procedure carried out can be jeopardized.
Also, the request must contain complete and objective information about the wanted person, and information about the criminal case with a summary of the unlawful act committed.
After the request is received by the National Bureau of Interpol, the RedNotice is sent to the General Secretariat of Interpol.
At the same time, the General Secretariat must check the request for the completeness of the necessary information and allow the National Bureau of the country that submitted the request to prepare additional materials.
It should be noted that Interpol (Article 3 of the Interpol Constitution) is prohibited from interfering in matters of a political, military, religious or racial nature, and Interpol strictly adheres to this prohibition.
As a result of the verification of the data, if they meet all the requirements, if there are all grounds and evidence base, the Interpol General Secretariat puts the person on the international wanted list by publishing information in the database and notifying all the National Bureaus of the participating countries on the day of publication. From this moment on, the person is considered to be on the international wanted list.
After receiving information about the announcement of a person on the international wanted list and relevant data, the National Bureaus of the participating countries are obliged to notify the law enforcement agencies about this through available (or specially defined) information systems.
As soon as law enforcement agencies, for example, Country A, discover the exact location of the wanted person, an operation is prepared to detain him and actually arrest him.
It is generally recognized that the extradition of criminals is the right of a sovereign state, and not its direct duty. The obligation to extradite can only be in the presence of an appropriate international treaty and subject to certain conditions.
The authority of the requested country (in many European countries, the court) responsible for deciding on extradition considers the absence or existence of circumstances precluding extradition. At the same time, a person in respect of whom a decision to apply extradition has been made may appeal against these actions in court.
As a result of the analysis of international legislation, a number of cases were found when a person detained as a result of a search cannot be extradited, the main of which are:
Quite often, in practice, the requested country refuses to extradite due to the lack, in its opinion, of evidence and grounds.
But of these circumstances, the last three are the most interesting to consider, since they are the most frequent in practice.
The most common are refusals to extradite, related to the acquisition by the requested person of the citizenship of the country in which he was detained. This is provided not only by Article 6 of the European Convention on the Extradition of Offenders of 1957, but also by the national legislation of the vast majority of countries.
Political persecution, as already mentioned, is prohibited even at the stage of declaring an international wanted list. But, if the Interpol General Secretariat does not recognize the existence of this circumstance according to generally accepted rules, then the person has a second chance that the requested country still recognizes the political motives for extradition. At the same time, the “fugitive” can even influence this decision by providing his own evidence and arguments.
Having studied the situations related to the extradition of Ukrainian citizens, a really large number of refusals is due to the fact that the requested person or his lawyer managed to prove that the request for extradition was made for political reasons.
These circumstances are closely related to obtaining the right of asylum, since political persecution is the basis for obtaining the right of asylum, and the right of asylum is the basis for obtaining citizenship (in some countries, for a simplified procedure for obtaining citizenship).
At the same time, it should be noted that if a person can obtain citizenship or recognize political motives for persecution in any one country, this does not exempt him from international search and extradition when leaving for another state. In this regard, only obtaining political asylum makes it possible to seek the abolition of the international search, referring to the aforementioned Article 3 of the Interpol Constitution.
Thus, there are reasons to believe that the numerous obstacles to extradition may not only be the result of mistakes by the country requesting the extradition of a person, but also the result of actions taken in its defense of the requested person and his lawyer.
Such situations in many cases have a negative impact on the fight against crime, but at the same time, they can be a true tool for protecting human rights in case of wrongful criminal prosecution and violation of the right to a fair trial.
If the requesting country did not provide all the materials and evidence necessary to satisfy the request
Offense under military law
The committed crime does not provide for punishment in the form of imprisonment in the territory of the country in which the offender is located
Extradition is requested for a person who is a citizen of the country in which he is located
The requesting country has not provided guarantees of protection against torture and ill-treatment, as well as non-application of the death penalty to the offender
The extradited person received the right of asylum
The statute of limitations for the crime has expired
The offense for which the person is requested is considered by the requested country to be a political offense or an offense related to a political offense