The Extradition Legislation in the Russian Federation and Germany: A Comparative Analysis

Author Name(s): Kamila D. Shaibakova
Author Email: kamila.shaibakova@gmail.com

Abstract

The article focuses on questions of legislative framework of extradition of the figutives. In the Russian Federation the norms concerning extradition are fragmented and often not ordered. So, authors of article have made the assumption that creation of the federal law on an extradition can serve systematization of knowledge of procedure and improve efficiency of its application in practice. As the proof of this theory authors have addressed experience of Germany. In Germany there is a special law on the international cooperation in criminal cases. This law is detailed and systematized and regulates questions of extradition of persons. The comparative and legal analysis of some provisions of the German law and standards of the Russian legislation are addressed in this article. The provided analysis shows that some areas aren’t regulated by the existing federal legislation, such as, for example, extradition of persons for commission of military crimes. The international obligations assumed by Russia only complicate understanding of a question. Based on comparison of legislations, the conclusion has been drawn on need of development of the legislation of the Russian Federation in the field of extradition of persons. Adoption of law similar to the laws of Germany can become a step in development of the legislation and bring more effectiveness in the use of rules of law for protection of interests of the state and human rights.

Introduction

 

The process of creating the system of international security is one of the priorities for both international and national directions of actions and for national ones. The events of September 11, 2001, followed by the terrible attacks in Europe and Russia became a cornerstone in fighting terrorism and transnational organized crime. Globalization and open borders (or at least simplified procedure of crossing borders) make it easy to escape from justice. The coordination of policies and steps in combating transnational crimes are the most important acts that shall be undertaken. The extradition is an sufficient mean to do so.

The extradition is a highly complex instrument. The terminology that is being used in order to describe the process varies in both English and Russian. This can be explained by the fact that there are several similar processes that frequently misinterpret to be extradition [1]. These are the deportation, the hand over to the international courts and etc. The extradition as a complicated procedure faces numerous problems that become obstacles for an efficient and effective process. The fugitives can use the legal collisions in order to benefit themselves. The detailed and thoughtfully enacted legislation can assist in solving the problems and become a preventive instrument. Therefore, the main aim of the article is to consider whether the enacted detailed extradition legislation in Russia will be a good decision. The legislation concerning extradition in Russia is fragmentary and inconsistent. The norms and provisions are spread over the Constitution, Criminal Code, Criminal Procedure Code, bilateral and multilateral treaties.

The German Act on International Cooperation in Criminal Matters is considered to be an example of how the law like this could be. The article compares the provisions in the legal frameworks of both states and sheds light on the gaps in Russian law. The conclusion is made that the new law shall be enacted as it would make the procedure more efficient and effective and will bring more common good for the society.

Conclusion

Notwithstanding the summary made, the internal validity shall always be kept in mind. Despite the fact that we proved that the enactment of the legislation can bring the common good for the society and presumably good consequences, we still shall take into account the unintended side effects of any law. Presumably, the creation of a law is not a goal by itself. The rationale behind it is to make the extradition more effective and avoid the legal gaps and collusion. Therefore, we believe that the enactment of such law could become a milestone in this process.

Acknowledgment

The work is performed according to the Russian Government Program of Competitive Growth of Kazan Federal University.

References

[1] Sadoff D.A., Bringing International Fugitives to Justice: Extradition and Its Alternatives. – Cambridge University Press, 2016, pp. 667.

[2] Bentham J., Theory of Legislation. -London: Trübner & Co, 1894, pp. 500.

[3] Kelley P.J., Theories of Legislation and Statutory Interpretation: Natural Law and the Intention of the Legislature. -Washington University Jurisprudence Review 1, no. 1, 2009, pp. 97-138.

[4] Constitution of the Russian Federation, Rossiiskaya Gazeta, December 12, 1993.

[5] Criminal Code of the Russian Federation, No. 63-FZ of June 13, 1996, available at: http://www.wipo.int/wipolex/ru/text.jsp?file_id=202465.

[6, 22] Criminal Procedure Code of the Russian Federation, No. 174-FZ, December 18, 2001, available at: http://www.wipo.int/edocs/lexdocs/laws/en/ru/ru065en.pdf.

[7] Treaty between the Russian Federation and Brazil, 2001; Treaty between the Russian Federation and Canada, 2000, available (in Russian) at: http://www.mid.ru/foreign_policy/international_contracts/2_contract/-/storage-viewer/bilateral/page-184/46469.

[8] Federal Law ‘About Ratification of the European Convention on Extradition, Additional Protocol and the Second Additional Protocol’, Resolution of Plenum of Supreme Court of the Russian Federation 14 June 2012 №11.

[9, 19] Federal law № 190-FZ  ‘About European Extradition Convention Ratification, October 25, 1999, available at: http://pravo.gov.ru/proxy/ips/%3Fdoc_itself%3D%26%26nd%3D102062477%26%26page%3D1%26rdk%3D0#I0.

[10, 11, 20, 23] Gesetz zur Umsetzung des Rahmenbeschlusses über den Europäischen Haftbefehl und die Übergabeverfahrenzwixchen den Mitgliedstaaten der Europäischen Union [Law for the Implementation of the Framework Decision on the European Arrest Warrant and the Surrender Procedures between Member States of the European Union] (in English), July 25, 2006, BGBl. I at 1721 (F.R.G.).

[12] Extradition Treaty between the Republic of Argentina and the United States of America, Buenos Aires, 10 July 1997, available (in English) at: https://www.congress.gov/treaty-document/105th-congress/18/document-text.

[13] Bosnia and Herzegovina Criminal Procedure Code, 2003, available (in English) at: http://www.legislationline.org/documents/section/criminal-codes/country/40.

[14] Peru, New Code of Criminal Procedure, 2004, available (in English) at: http://www.akimoo.com/structure-of-the-new-code-of-criminal-procedure-peru/

[15] Portugal, Law on International Judicial Cooperation in Criminal Matters, 1999, available (in English) at: http://www.gddc.pt/legislacao-lingua-estrangeira/english/lei144-99rev.html.

[16] Morocco, Forth Periodic report to the Committee against Torture, 5 November 2009, UN Doc., CAT/C/MAR/4, submitted 27 April 2009.

[17] Qatar, Initial report to the UN Committee against Torture, 5 October 2005, CAT/C/58/ Add.1, submitted 9 February 2005.

[18] Council of Europe, European Convention on Extradition, 13 December 1957, ETS 24.

[21] People’s Republic of China and Russian Federation Extradition Treaty, 1996, available (in Russian) at: http://www.lawrussia.ru/texts/legal_185/doc185a830x781.htm

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