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Russia: Borodin's Extradition Case In U.S. Raises Legal Questions

  • Don Hill

When U.S. authorities detained a prominent Russian official in New York last week, an international furore resulted. Russia lodged an official protest. The U.S. State Department said the detention was purely routine. An international law expert tells RFE/RL correspondent Don Hill that -- by international law and custom -- extradition proceedings generally follow standard procedures.

Prague, 22 January 2001 (RFE/RL) -- U.S. officials detained former Kremlin official Pavel Borodin last week as he stepped off an airplane in New York, reportedly on the way to attend George Bush's inauguration as U.S. president.

Swiss authorities had asked that Borodin be held for extradition to Switzerland on charges involving accepting bribes for awarding Kremlin contracts.

International reaction was immediate. Russia officially protested. Borodin himself suggested that he was entitled to diplomatic immunity. News accounts said that the action by the outgoing U.S. administration might embarrass the incoming one.

In a telephone interview, international law expert and Northwestern University professor Anthony D'Amato says that most extradition proceedings move along standard lines long settled by international treaty, law and custom.

D'Amato says that extradition is, in theory, a simple legal procedure set up by reciprocal treaties and custom to enable one country to enlist another country's aid in apprehending a person charged with a crime. It differs, he says, from deportation, the purpose of which is for a country to rid itself of an unwanted foreign national.

He says the purpose of extradition is criminal justice:

"To make sure that fugitives are returned to their home country to face trial. Or to another country to face trial."

After a person is detained by a country on an extradition request from another country, the next step usually is an extradition hearing. It's important to recognize, D'Amato says, that this is not a trial on the merits of the criminal charges. An extradition hearing is for one purpose only, he says, and that is to determine whether the extradition request is a valid one.

"The function of those hearings is to ascertain whether the person is in fact the person they are looking for -- there's no mistaken identity -- and to give the person a chance, at least, to bring up any impediments to the extradition, anything that would cause the extradition to be illegal."

The Northwestern University professor says there are a variety of possible impediments to extradition. The request may be in an improper form. There may be flaws in the treaty providing for extradition between the requesting country and the country receiving a request.

One important impediment to extradition is the "dual criminality rule." In order to be an extraditable offense, the crime charged must be one that constitutes a crime in both the requesting and requested nation. D'Amato says:

"For example, if Germany wanted to extradite someone for using Nazi regalia, that's not a crime in the United States. So the United States would not extradite a person to Germany for a crime like that. It has to be a crime in both countries."

Under international law, a country can refuse to give up a fugitive if the punishment established for the crime in the requesting country would be one deemed excessive or otherwise improper in the nation receiving the request.

European countries, for example, have refused U.S. requests for extradition when capital crimes such as aggravated murder were alleged. Most European countries do not allow execution of convicted criminals for any reason.

D'Amato says that the other extreme -- when a crime is too minor -- also can block extradition.

"Another impediment would be that the crime has to be punishable by at least a year in prison, so [that] people will not be extradited for minor offenses."

It's true that an extradition hearing does not supersede a criminal trial. But a country receiving an extradition request is entitled to require that some evidence be shown that a prosecutable crime actually did occur. This is known as making a "prima facie" case (that is, a case on the face of it).

D'Amato says a defendant in an extradition hearing is entitled to demand that a prima facie case be made, but any such challenge would be limited.

"Yes, not much of a case. You're not going to have a full-blown trial in the United States. A person's not going to [get a chance to] say, 'Well I'm not guilty.' So it's not as though you have a constitutional right here to some kind of trial. You don't."

Our correspondent asked D'Amato what the United States, for example, could do if it suspected that it were being asked to extradite a person for hidden political reasons. Would it have the right to object on those grounds?

"Yes, and the 'political offense' exemption is an important one. If the person, say, is accused of anti-government propaganda or something like that, or espionage, [those would be] political offenses. And international law, international customary law, has interpreted extradition treaties as not to require the home state, the requested state, to give up such a person."

Borodin's lawyer says that Borodin should be released because the crime that Swiss authorities are alleging is groundless in Borodin's home country, Russia. For Borodin's actions in Switzerland to constitute a criminal offense, his lawyer says, they would have to be rooted in some criminal activity in Russia.

D'Amato says an extradition hearing ordinarily would not go that deeply into the validity of the criminal charges. Borodin's lawyer, D'Amato says, is entitled to bring up extradition impediments, but that type of defense isn't likely to succeed.

"I don't think that's a very good [defense], because that's what you would just call a plain defense to his prosecution in Switzerland. He would simply say, "I'm innocent of these charges because there was no crime in my home country." So that's something you would say that properly he should raise as a defense in his criminal trial, but I don't think -- I'm pretty sure -- that extradition doesn't penetrate that far into the defendant's defense."

Extradition law has aroused unusual public interest in the last two years.

The case of former Chilean dictator Augusto Pinochet, released by British authorities last year for health reasons despite a Spanish extradition request, attracted wide attention. Pinochet, now back home in Chile, faces questioning by a judge tomorrow in his home country on charges of murder and human rights abuses.

There is a major distinction, however, between the Pinochet and Borodin cases. Borodin is charged with breaking specific laws in the prosecuting country, Switzerland. The crimes Spain alleges against Pinochet occurred in Chile. Spain's claim to the right to prosecute is based not on its statutes but on the fuzzier, higher grounds of "crimes against humanity."