‘Outsourcing execution’

Can Russia extradite the Moscow terrorist attack suspects to Belarus, which has the death penalty?

The recent deadly terrorist attack at Moscow’s Crocus City Hall music venue has renewed debate in Russia over the country’s moratorium on capital punishment. In the meantime, some lawmakers have proposed a simpler solution: extradite the suspected terrorists to Belarus, which never got rid of the death penalty in the first place. Meduza spoke to legal experts to find out if this is theoretically possible.

Legal loopholes

A week after a Moscow terrorist attack claimed the lives of at least 144 people, Russian State Duma Deputy Maria Butina stated that the alleged gunmen could be extradited to Belarus, which has the death penalty, to stand trial. Moreover, she hinted that “negotiations may already be underway” through “the appropriate authorities.”

Butina asserts that Belarus “has exactly the same right” as Russia to try the alleged terrorists since Belarusian citizens were also killed in the attack. “If they’re simply counting on the fact that Russia has imposed a moratorium on the death penalty and they’ll be able to avoid this type of punishment, well, let’s wait and see,” she said.

Butina made the statement at the height of a debate in Russia over whether or not the country should reintroduce capital punishment. The idea has been criticized by some government officials, including influential Russian senator Andrey Klishas. The senator also noted that even if Russia did reinstate the death penalty, this sentence can’t be given to those found guilty of terrorism. The death penalty would only be on the table when there’s a jury trial — and terrorism cases in Russia aren’t tried by jury.

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There’s another legal obstacle that’s a bit more difficult to fix than “problematic” parts of Russia’s Criminal Code and procedure. Even if the moratorium is lifted and criminal procedure changed, an article in the “unalterable” part of the Russian Constitution states that laws establishing or increasing penalties cannot be retroactively applied. In other words, because the current Criminal Code doesn’t allow the death penalty for terrorists, those currently charged with the terrorism can’t be sentenced to death if they’re found guilty.

In this context, Butina’s words seem like an idea to bypass the existing restrictions in Russia. Doing so could set a dangerous precedent.

Inconvenient treaties

While it’s legally possible to extradite the suspected terrorists to Belarus, they still can’t be executed (at least according to the letter of the law). An agreement between Russia and Belarus classifies counterterrorism as falling under the joint jurisdiction of Union State members. “However, the agreement doesn’t go beyond these vague formulations,” lawyer Dmitry Gurin, a specialist in human rights and international law, told Meduza. “It doesn’t provide a mechanism for transferring jurisdiction in criminal cases, and in general, it ignores issues of criminal law. It’s likely that the issue of extraditing individuals accused of committing the Crocus attack to Belarus will be resolved without any connection to the Union State.”

According to Gurin, the fact that there are Belarusian citizens among the dead theoretically gives Belarus the right to request the suspects’ extradition. However, as another expert in international law told Meduza, fulfilling such a request would be “absurd” given the number of Russian casualties and the fact that the crime took place on Russian territory. But even if the accused were extradited, he added, a Belarusian court “still wouldn’t be able to impose the death penalty” — at least, if Belarusian judges don’t want to directly violate CIS legislation.

Last year Russia ratified the CIS Chisinau Convention on Legal Aid and Legal Relations in Civil, Family, and Criminal Cases (2002). It’s this document that dictates the country’s extradition procedure. However, the international agreement expressly prohibits imposing the death penalty on extradited criminals if there is no such punishment in the country granting the extradition request. Moreover, when ratifying the convention, Russia added a clause stating that suspects may only be extradited if the country making the request guarantees that this type of sentence will not be imposed on them, noted Gurin.

“Therefore, legally outsourcing the execution to Belarus won't be possible. The initiator of this proposal, Ms. Butina, is well acquainted with the legal framework of extradition, making her statement nothing but demagoguery,” Gurin concluded. The other expert who spoke with Meduza agreed. “There are no legal norms in the ravings of propagandists,” he said.

Reporting by Kirill Olgin