Negative extradition: why traitors and corrupt officials are not extradited to Ukraine
Shirking responsibility for their crimes, numerous officials, lawmakers, law enforcement officers and business figures left Ukraine during the full-scale war. According to journalistic investigations, they are fully enjoying their lives abroad. And even have the audacity to accuse Ukraine of persecution.
We discussed how such fugitives are brought back to Ukrainian prisons and whether the war affects these processes with Iryna Didenko, Deputy Head of the Department of International Cooperation and Head of the Division for Cooperation in Criminal Proceedings at the Office of the Prosecutor General. Unfortunately, prosecutors are legally restricted in what they can say about specific cases, so we mostly spoke about the overall situation.
I also asked about extraditing war criminals to Ukraine and transferring such offenders to other countries. All the more so since, recently, the first-ever extradition of a Russian prisoner of war to a foreign state for the purposes of justice took place. As the Prosecutor General’s Office stressed, this is a signal to Russians that it is not only Ukraine that can try them for war crimes.
"IF UKRAINE ACTS HONESTLY, DIRECTLY INDICATING THE OFFENCE A PERSON IS SUSPECTED OF, THE RUSSIAN FEDERATION CAN SIMPLY MAKE UP AN ‘ORDINARY CRIME’."
– How has the war affected the mechanisms of extradition to Ukraine?
– The mechanisms themselves are international and have been developed over decades, so they have not changed in any way. But the war has indeed had a significant impact, because in 2022, extradition virtually came to a halt: it was dangerous in Ukraine, and extraditing anyone here could theoretically lead to a violation of a fundamental right – the right to life. Our partners simply stopped extraditing people to us. Some refused outright, others "froze" cases until better times.
But there is also a small positive side. We have finally completely stopped working with the Russian Federation and the Republic of Belarus and fully reoriented ourselves to working with partners in the Western world. This was difficult, because before the full-scale invasion, most requests came precisely from the Russian Federation.
Now each prosecutor is assigned to a particular country. Prosecutors study the legislation of the country they work with, because without that, there will be no effective extradition; they communicate with their counterparts and build cooperation. Sometimes, because of the time difference, prosecutors join online meetings even at night if it is office hours for colleagues in another country. Since we are the ones sending the requests and we want the extradition procedure to go ahead, we adapt.
– Who exactly decides that wanted persons cannot be extradited to us because they are in danger here due to the war – the persons themselves or the states on whose territory they are staying?
– In any case, the decision is made by the issuing state. But Ukraine is now focusing its attention on the fact that the person is hiding from a crime, not from war. We emphasise this separately in our requests, describing the crime they have committed. And from the person's actions, it is clear that they are not fleeing from war, but from responsibility.
Much also depends on the category of offences. When we are talking about top-level corrupt officials or simply wealthy individuals who can afford to move freely around the world, they can likewise afford the services of the best defence lawyers, who skilfully use the laws of rule-of-law countries in their clients’ interests. They throw every possible argument at the case. There is the Convention for the Protection of Human Rights and Fundamental Freedoms (the European Convention on Human Rights), and they try to argue under each article that they cannot be extradited because their rights would be violated. They list those rights one by one. And a court in any country is obliged to examine these arguments. Prosecutors may succeed in rebutting all of them, but something may still remain if the court finds the defence’s arguments more persuasive. Every case is individual. The defence makes maximum use of a legal system that is geared towards the protection of human rights. And it is very easy to mount a defence now, because there is a war in Ukraine, which creates dangers to life and health, and courts take such arguments into account.
Ukraine, for its part, is not staying silent. We realised that this issue needed to be addressed urgently; otherwise, extradition to Ukraine would not be unblocked. We have to meet the requirements that are raised in court, first of all, by ensuring safety. Overall, a number of measures have been adopted that made it possible to unblock extradition.
– What other arguments, besides safety, do defence lawyers and their clients put forward in such proceedings? Perhaps you can give an example.
– First and foremost, they argue about the place of detention. Ukraine is a country that is constantly under attack by enemy drones and missiles. We counter this argument by pointing out that the facilities where extradited persons will be held are located in the western part of our country. There is a list of these facilities approved by the Ministry of Justice. These facilities have specialised cells where such persons are kept. They are equipped with bomb shelters, and they are taken there during air raid alerts. Ukraine guarantees this, and we adhere to these guarantees.
Another argument concerns allegedly inadequate conditions of detention. For example, the European Union standard is a minimum of four square metres per person. We do not yet have such a norm laid down in our legislation, and we are working on this. But even now, we comply with that standard, despite the fact that it is not expressly enshrined in law.
Defence lawyers also tend to get a bit creative at times. They use old Ukrainian human rights reports and cite high-profile cases of beatings or torture in places of detention. In response, Ukraine demonstrates that the situation has changed significantly and that it now reacts to such incidents actively and effectively. Such incidents cannot be ruled out entirely, but when they occur, they are investigated, those responsible are identified, and these cases result in convictions. There are also more recent reports noting that conditions in places of detention in Ukraine have improved.
There are also some rather curious arguments. For example, statements that the family of the person whose extradition is being sought resides in the country where that person is currently staying. They stress that once returned to Ukraine, this person will be separated from their family.
This, too, is a separate provision of the Convention that must be protected. In such cases, we take into account who those family members are, whether they are small children who are dependent on the person, or merely distant relatives.
Arguments about poor health, which (in the suspect’s view) makes it impossible for them to be held in custody anywhere at all, are also quite common. This is even simpler: European countries have long had mechanisms in place to ascertain a person’s actual state of health, and as far as I can recall, we have not had a single refusal on these grounds.
Moreover, in top-level corruption cases, some wanted persons claim they are being persecuted by the Ukrainian state. We rebut this argument by pointing out that they are charged only with offences that are criminal under the laws of both Ukraine and the state where the person is staying (the so-called "double criminality"). In most cases, these are embezzlement or misappropriation of funds, or bribery. There is no political persecution involved.
– Is Ukraine managing to bring collaborators and traitors back from abroad?
– No. Because the international mechanism has not yet been developed; it is still in its formative stage. The offence of collaborationism itself is tied to the political nature of events and to the conditions of martial law in Ukraine. And there is very little investigative practice regarding such offences in other states. Liability for high treason does exist, but it is perceived as a political offence.
In addition, for anyone to be extradited, that person must first be identified. And for them to be identified, they must be placed on an international wanted list through Interpol. Interpol has to issue a so-called red notice, after which law enforcement in the country of stay can detain that person. But Interpol will not issue such notices for this category of offences, because that would violate Article 3 of its Constitution. This article prohibits the use of notices on grounds related to politics, war or religion. So we cannot even reach the stage of making a request, because in such cases, the mechanism for identifying and detaining a person simply does not work.
At the same time, we have no doubt that the aggressor state is trying to abuse these mechanisms against Ukraine. So the logic is clear: Interpol does not allow this part of its mechanism to be used by Ukraine, but neither does it allow it to be used by the enemy against us.
The only way Russia can manipulate the system is by disguising these types of offences as so-called "ordinary crime".
That is, if Ukraine acts honestly, directly indicating the offence a person is suspected of, the Russian Federation can simply make up an "ordinary crime" – for example, not activity against their "special military operation" but "the theft of three chickens". But even to such manipulations, Interpol’s Commission for the Control of Files knows how to respond.
When it comes to war crimes, the only instrument that can be applied is Interpol’s 2010 Resolution (Interpol General Assembly Resolution AG-2010-RES-10). But there is a nuance: the state of nationality, i.e. the Russian Federation, may object to a request to Interpol to identify and detain a person. So we have no illusions. Russia will not allow its own nationals to be sought. Interpol is obliged to ask the Russian Federation whether it consents to a red notice being issued. Naturally, that consent will not be given.
– You are referring to Russians suspected of committing war crimes. But what about our own citizens who have betrayed Ukraine? We cannot even put them on an international wanted list, if I understood you correctly?
– Not exactly. They are placed on an international wanted list, but applying Interpol’s mechanisms is what becomes difficult, because Article 3 of Interpol’s Constitution prohibits it. In such cases, other mechanisms are used, for example: conviction in absentia; direct requests for extradition once the country of stay is established; arrest warrants issued by third countries under universal jurisdiction, and so on.
– Representatives of Russia’s Foreign Ministry and Investigative Committee claim they have placed foreigners fighting for Ukraine on a wanted list. How are they managing that, given Interpol’s statute?
– They aren’t. Based on the publications and statements we have seen, Russia loudly announces only a national wanted list. Meaning they are "looking for" these people somewhere in the Chelyabinsk or Magadan regions. We have serious doubts they will find them there — it looks much more like an attempt at intimidation through sensational headlines.
– If a verdict has already been delivered, can Ukraine submit an extradition request for traitors and collaborators?
– The mechanism is the same. At the pre-trial stage, it is applied by the Office of the Prosecutor General, and from the moment the indictment is submitted to the court and up until the judgment is fully enforced by the Ministry of Justice. Our powers are identical.
We, together with the Ministry of Justice, its penitentiary service (the State Criminal-Executive Service), the Ministry of Foreign Affairs, National Interpol( the National Central Bureau of Interpol), the National Guard, the specialised Anti-Torture Department and the "war" department, the State Bureau of Investigation, human rights defenders, national and international experts and others, are working to find mechanisms to unblock the entire extradition process, including for these categories of offences, at every stage. We exchange information immediately and efficiently. We can already see results in "civil" extradition cases, and I am confident there will be results in this area as well.
At first, we relied on the most common mechanism — Interpol. But we later realised that all possible mechanisms must be used in parallel, and even new ones created. One of them is universal jurisdiction, which was used far less actively before the full-scale invasion. Under this principle, any other country can prosecute, consider cases, detain, impose preventive measures, convict and enforce sentences against war criminals who committed crimes on Ukrainian territory. An example is the case of Yan Petrovsky, who committed war crimes in eastern Ukraine and was sentenced to life imprisonment in Finland.
– In such cases, does the Ukrainian side provide the collected evidence to colleagues in another country? How does the process work?
– We cooperate in various formats. This can be within the framework of mutual legal assistance — that is, requests and responses. It can also involve joint investigation teams, or operational information exchanges with colleagues, and so on.
– How do law enforcement agencies in other countries find out about a person’s involvement in war crimes in Ukraine if that person is not on a wanted list?
– In different ways. Intelligence agencies exchange information with one another. Border guards check who is crossing the border and may have a number of questions, especially about Russian nationals. The Yan Petrovsky case was extremely public. Media outlets kept constant attention on it from the moment he committed the crimes to the moment he was sentenced.
There are also situations when the victim of a war crime in Ukraine is a citizen of another country. And every country protects its own citizens and will investigate the circumstances of that person’s death. In such cases, they conduct the investigation domestically, while Ukraine provides the evidence. That is how they identify the perpetrator.
"THE LIST OF FACILITIES FOR EXTRADITED PERSONS HAS BEEN DEFINED AND APPROVED"
– If a state refuses to extradite someone to Ukraine, what happens next to the person for whom the Prosecutor’s Office sent a request? Are they released, or kept in custody and then tried?
– Under the applicable rules, if the fact of the crime has been established, Ukraine may use the mechanism of transferring the criminal proceedings. In other words, the case is sent to the country that refused to extradite the person, and that country then examines the case in its own courts and holds the person criminally liable.
Sometimes the country itself initiates this by sending us a letter stating that it is refusing extradition due to the war but is prepared to apply the mechanism of transferring the proceedings.
This mechanism can be complicated only in cases where, for example, the victim objects to the transfer because they want the case to be heard in a Ukrainian court.
Another difficulty involves translation. Ukraine must transfer the case file fully translated, which is neither cheap nor quick. And when it comes to documenting crimes committed near the frontline, these materials are often handwritten. It can take considerable time simply to digitise them, and then they still need to be translated into the language of the country to which the case is being transferred. But it is good that this mechanism works — it was used far less frequently before.
– When a suspect in war crimes is tried in another country, do victims from Ukraine have to travel there to testify, or can they testify via videoconference? And who provides interpretation in such proceedings?
– International law keeps pace with technology, not lightning-fast, but steadily. And online interrogations and online testimony are now widely used. It is very convenient. Ukraine also conducts many interrogations this way. In such cases, the interpretation is provided by the side conducting the trial.
If Ukrainian prosecutors or investigators need to question someone abroad, as a rule, we send a request to the country, and its law enforcement agencies conduct the interrogation. This complicates matters because they do not go beyond the list of questions written by the investigator. But during an interrogation, additional questions may arise that cannot be asked — only those on the written list.
That is why online interrogations are so useful: they are organised by the law enforcement body of the foreign country, but the questioning is conducted by the Ukrainian investigator, who can then ask all additional questions that arise during the process.
– You mentioned that Ukraine has gradually managed to unblock extradition in countries that previously refused due to the war. As of now, how often do refusals occur?
– If in 2022–2023 refusals accounted for roughly 56%, mostly due to the war, now the figure is about 20%. A tremendous effort went into achieving this. We demonstrated that Ukraine is capable of ensuring safety, invited ambassadors from countries that had categorically refused extradition to visit the detention facilities holding the individuals whose extradition we sought. Ukraine is very transparent. A consul can visit an extradited person at any time, speak with them and assess their conditions of detention.
The list of facilities for extradited persons has been defined and approved. Therefore, once representatives of other countries saw how this process is organised here, they began unblocking extradition cases.
Not long ago, a decision was issued that, as a lawyer, I consider extremely important for Ukraine. It concerns the fact that not only the Office of the Prosecutor General or the Ministry of Justice provides guarantees of safety, other competent bodies also join in providing such guarantees. This was a decision of the Supreme Court of Ukraine. The court began applying the practice of transferring jurisdiction; there is already a first ruling. The crime was committed in Kyiv, but the court changed the territorial jurisdiction and the case is now being heard and the person is being held, in western Ukraine. The court did this because Ukraine provided guarantees of safe detention in the western part of the country. This is a precedent for us and proof that Ukraine honours its guarantees and takes care of the safety of persons who have been extradited.
– Since the beginning of the full-scale invasion, around a dozen former top officials, MPs and even oligarchs have left the country, fleeing criminal liability. What is being done to bring them back?
– The mechanisms are the same. In my view, Interpol remains the most effective tool.
There are also requests for a temporary arrest. Of course, provided that we know which country the person is in. We cannot randomly send 200 requests to 200 countries.
If it is confirmed that the person is in a given country and they are detained, we immediately prepare a full package of documents and send a formal extradition request.
Since the beginning of the full-scale invasion, the Office of the Prosecutor General has sent almost 800 extradition requests at the pre-trial investigation stage.
In addition, 460 requests for the provisional arrest of political figures and other Russian nationals have been submitted.
A significant share consists of requests in criminal proceedings concerning corruption-related offences — almost 200, of which nearly half have already been granted.
Overall, Ukraine is searching for about 1,200 persons abroad.
– According to open sources, many suspects in serious offences reside in Austria. On 16 June in Vienna, President Volodymyr Zelenskyy said he expects Austria to support Ukraine in bringing back former officials and oligarchs who are hiding abroad and keeping their illicitly transferred assets there. Has the situation changed?
– Austria is a country with a very unique legal system. Every step, every decision can be challenged in court. And if you can afford good lawyers who know that system well, they will contest every step, and the courts will be hearing not just the extradition request itself but another thirty related appeals. Until all those court proceedings are completed, no final decision will be taken.
We very much welcomed the President’s outreach. There has also recently been engagement at the level of the Prosecutor General. These are the political signals without which it is difficult to launch new processes. They send a clear message that this is extremely important for Ukraine.
As far as Austria is concerned, I would also draw your attention to the fact that the United States has likewise been unable for many years to secure Firtash’s extradition from there. So, because of the specific features of that country’s legal system, it is difficult not only for us, everyone finds it hard to work with Austria.
But we also have a positive case. One extradition has taken place, and the damages caused by the crime have already been reimbursed to the state budget. In other cases, we are still in the process of communication. We hope that at least one of these cases will reach their Supreme Court. If a precedent is created, we will have a chance to go back to the remaining cases. Some countries do reconsider their earlier decisions to refuse extradition or to suspend consideration of our request. We are working hard on this right now.
– On 26 September 2022, the Nord Stream and Nord Stream 2 gas pipelines, which carried Russian gas to Germany, were blown up in the Baltic Sea. German law enforcement authorities conducting the investigation suspect Ukrainians of involvement. Poland has refused to extradite one of them, while another has been arrested in Italy, and the Court of Appeal in Bologna has confirmed that he can be extradited. Has the German side approached Ukraine over this situation?
– The case does not concern Ukraine itself but another country. I will answer as far as I can. We cooperate with all states, including within the framework of mutual legal assistance. The topic is extremely sensitive. The main task for Ukraine, for the Ministry of Foreign Affairs and for myself personally is to protect the rights of Ukrainian citizens in every corner of the world.
– Perhaps with a request to extradite other Ukrainians or to transfer certain information? Open sources indicate that German investigators believe seven people took part in the operation.
– Here we are dealing with a balance we often have to strike: between fulfilling our obligations towards partners under international treaties and protecting the rights of Ukrainians and our national security, that is, the Constitution of Ukraine. Let me put it this way: we will always act exclusively in the interests of our own state, while complying with foreign partners’ requests to the extent that doing so does not harm Ukraine. This situation is no exception.
That is all I can say on this matter.
– Let me ask you again. Has the Office of the Prosecutor General received any requests indicating that there are additional arrest warrants in this case and asking for more people to be extradited?
– I cannot comment on that.
– In May this year, the former First Deputy Secretary of the National Security and Defence Council was detained in Spain. According to media reports, this is Oleh Hladkovskyi. What is the status of his extradition?
– As I have already mentioned, there are two bodies in Ukraine that cooperate with other countries on such matters – the Office of the Prosecutor General and the Ministry of Justice. And when it comes to a case that has already been referred to court, only the Ministry of Justice of Ukraine has the full information.
– Has an extradition request been submitted for the son of the former president of Motor Sich, Oleksandr Bohuslaiev, who, together with his father, is suspected of misappropriating the company’s assets? According to the Security Service of Ukraine, he was detained in Monaco.
– I know this case quite well, but from a slightly different angle, not from the extradition side. One of the areas of work of our department is joint investigation teams, and this is one of the best examples of a successful team. It is a tripartite joint investigation team involving France, Monaco and Ukraine. And the interesting thing about working in such a team is that they communicate directly with one another at their level. A lead prosecutor is designated for the group in France, Monaco and Ukraine, and they communicate and coordinate among themselves.
From time to time, I ask my colleagues whether they can tell me anything, because I am not entitled to interfere in the case itself. They have said that these issues are currently under discussion. As far as we know, he is not only wanted by Ukraine. The three countries are now coordinating among themselves to decide which mechanism for bringing him to justice would be the most appropriate, both in terms of ensuring justice and in terms of compensating the damage and returning the money to Ukraine. That is the stage they are at now.
Once they reach the stage where our involvement or assistance is needed, we will step in. But they need very little from us at this point, because they are communicating directly.
I am confident that as soon as they have a joint decision, they will make it public.
– According to ZN’s sources, the return of MP Khrystenko, who is charged with high treason, took place as a result of a political agreement rather than through extradition. Is that true?
– I want you to understand that there are many different mechanisms. Not all of them fall within our institution’s field of view. Some may be handled by border guards, the migration service, or by the governments of the two countries, and so on. We do not have detailed information about this particular case. But I will repeat once again: there are various mechanisms, and this was certainly not an abduction. A legal mechanism was applied, one hundred percent, but I do not know the details.
– Does Ukraine often refuse other countries’ extradition requests?
– Most often, we refuse when it concerns a Ukrainian national. Ukraine does not extradite its own citizens.
There are other cases in which we have doubts. For example, when we see that the statute of limitations for criminal prosecution is expiring. Let’s say 15 years have passed since the crime was committed. We then request additional information, asking the country to explain why it has not withdrawn its request if the limitation period has already expired. But even here, there are exceptions: in serious crime cases, these time limits may be extended.
In the case of one Eastern country, we had questions about access for our consul to a person whom we had extradited. They had guaranteed that person’s safety and proper conditions of detention. But when the consul requested access to speak to this person and see the conditions in which they were being held, that request was refused. That is unacceptable. Again, this is about trust. Accordingly, we are now much more cautious in our communication with that country and in how we handle its requests.
– How many war criminals has Ukraine been able to have extradited from EU countries? You mentioned there are problems with Interpol. But in conversations with law enforcement officers, I’ve often heard that they cooperate with Europol and share information about such offenders.
– It is still very difficult to overcome Article 3 of Interpol’s Constitution and the ban on interstate cooperation on war crimes. But what I appreciate about international law is that we do have alternative mechanisms. You have just given a good example: operational officers at their level cooperate with Europol and with EU member states. And if they manage to identify such an offender on EU territory, we can then resort to other mechanisms. One of them is an extradition request. Without involving Interpol, Ukraine simply asks that extradition be considered so the case can go before a court and the court can take a decision. Of course, the court may also invoke the fact that this is a war crime and argue that a person should not be extradited for such offences, but there is still a chance that the issue will be examined.
We also pin our hopes on the Ljubljana–The Hague Convention, which is currently in the signing phase for other states and will then move to the ratification stage. It is designed specifically to make work on war criminals easier. Previously, there were not so many of them; international law had never faced such a number of war crimes. Now these mechanisms are being adjusted to the new realities.
Another option involves decisions by courts of third countries. If a third state opens a case, investigates it and prosecutes the person, it can request that a red notice be issued.
In addition, decisions of the International Criminal Court are binding and Interpol responds to them as well.
So we keep working and looking for solutions depending on the specific case. This is extremely important for us.
Tetiana Bodnia, Censor.NET
