News
A group of Russian MPs led by Irina Yarovaya has submitted a bill to the State Duma proposing a new procedure for prosecuting Russians on foreign soil. If extradition presents a challenge, the law will allow the transfer of the criminal case file so that the person can be tried in their country of residence.
According to the explanatory note, the initiative is aimed at ensuring the “certainty of liability for persons who have committed crimes, are in hiding abroad, and are not subject to extradition.” The bill proposes to amend a single article of Russia's Criminal Procedure Code. As of today, Article 458 of the Code provides for the transfer of case files to a foreign state only for crimes committed on Russian soil by foreign citizens. The sponsors of the bill aim to repeal this restriction and reorient the article towards Russian emigrants.
To justify their proposal, the MPs explain that the law could ensure punishment for criminals who are not extradited by foreign countries for political reasons. “At the same time,” the explanatory note says, “the law seeks to confirm readiness to prosecute them [abroad] for committing a common criminal offense, especially a serious or extremely serious crime, in the Russian Federation, based on the ‘extradite or prosecute’ principle.” It is noted that the obligations to try criminal cases at the location of the accused person are established by “many bilateral and multilateral international treaties.”
Yevgeny Smirnov, a leading attorney with the Pervy Otdel (Dept.One) Human Rights Project, explained to The Insider that it is extremely challenging to hear complex criminal cases in a foreign jurisdiction:
“First, the authorities must obtain the necessary documents and assess whether there is enough information to initiate criminal proceedings. Once a case has been initiated, the questioning of specific persons can begin.
There are several ways in which you can conduct a questioning. The first and optimal is to invite these people into the country for questioning. The second option is to use legal agreements between countries: to request legal assistance from the country where the person is located, asking to question them in line with relevant legal procedures.
The third option is also stipulated in multiple agreements: a person can travel to the place of questioning under certain guarantees. In this case, if someone enters a country to testify as a witness, they cannot be prosecuted unless they commit new crimes. This procedure is called appearance under immunity, and it protects the witness from prosecution for already known acts.”
According to Smirnov, complex Russian criminal cases that involve a large number of witnesses and require expert examinations are unlikely to make it to trial abroad:
“These cases are a nightmare to prosecute because they cannot be built on witness testimony alone. Successful investigations require forensic examinations, interviews with victims, and evidence collection.
The document package must comply with the requirements of the country where the proceedings will take place. In European countries, for example, the evaluation of evidence must respect the safeguards of the European Convention, which includes the questioning of experts who have provided opinions against the accused, including forensic medical examinations. The process becomes much more complex.
Furthermore, not all countries have laws that allow for the prosecution of foreign nationals for crimes committed on the territory of another country. This further complicates the situation and poses new challenges for international human rights bodies in the area of criminal prosecution.”
Smirnov adds that, even if the bill is passed, it should not seriously affect the security of Russians located in “unfriendly countries” — a list that includes essentially every economically developed democratic state in the world, from the U.S. and Canada to the EU to Japan and Australia. However, the new Russian law may create additional difficulties for Russians abroad if their countries of residence choose to conduct checks based on the facts presented by Moscow. “This will create additional risks in countries that are not characterized by the rule of law,” the attorney said.
Russian authorities may try to use the new law to harass politically active Russians who live abroad and are not subject to extradition — for example, those who make online comments that are illegal in Russia. It is possible that the Kremlin could convince foreign law enforcement officials that a Russian emigree represents a danger to the public order in their new home:
“I would say they are targeting some sort of cyber offenses, like online comments. In all honesty, some of the authors of these statements, though far from all, could indeed face prosecution on some sort of death threat charges. Even in Europe, it is a criminal offense. Some countries have laws restricting the use of cryptocurrency — so we're talking about cases where the evidence is realistic to collect.”
Smirnov also noted that the proposed changes would alter the foundation of the Russian legal system. By giving foreign jurisdictions the right to try Russian citizens, the law would essentially contradict the Russian Constitution, which guarantees Russians protection abroad.