Legal scholars: EU law may block extradition of Estonian citizens to US

U.S. and Estonian flags.
U.S. and Estonian flags. Source: Ken Mürk/ERR

Concerns exist regarding the legal bases and procedures for extraditing Estonian citizens suspected of crimes to other countries, which could constitute grounds for much more frequently refusing extradition, find University of Tartu (TÜ) legal scholars Anneli Soo, Paloma Krõõt Tupay and Kaie Proode.

The extradition treaty Estonia concluded with the United States was ratified with an insufficient majority in the Riigikogu, which formally constitutes a violation of the Estonian Constitution, and furthermore, the extradition of an Estonian citizen may in some cases be in violation of the Charter of Fundamental Rights of the European Union, revealed an analysis (link in Estonian) drawn up by TÜ Department of Penal Law Director Anneli Soo, Associate Professor of Constitutional Law Paloma Krõõt Tupay and Criminal Law Junior Lecturer Kaie Proode.

Tupay explained to ERR that when the Riigikogu ratified the extradition treaty with the U.S. on October 18, 2006, 50 MPs voted in favor of ratification. As the ratification act in substance constitutes a constitutional law in terms of Section 104 of the Constitution, however, its thus requires a quorum of 51 votes, or a majority of the 101-seat Riigikogu.

"The Constitution states that when regulating matters governing court procedure and court administration – the Constitution itself states 'act,' but this is taken more broadly – that when deciding matters governing court procedure, it requires a majority of the members of the Riigikogu," Tupay said. "And in this case we have a situation where 50 MPs voted in favor of it. Meaning we are one vote short of an absolute majority."

Extradition to U.S. may be prevented by latter's severe punishments

Secondly, the TÜ scholars highlighted the fact that extradition of Estonian citizens to the U.S. but also to other third – non-EU – countries may also be hindered by the fact that people's fundamental human rights aren't guaranteed in these countries to the same extent as in the EU, which essentially means that convicted persons could be sentenced to extremely harsh punishments, which isn't the norm in Europe.

"The issue is that the treaty between Estonia and the U.S. absolutely does not address the protection of the extraditee's fundamental rights," Tupay said. "It has also generally been internationally recognized and regulated in various legislation today that someone will not be extradited without due regard being given to their rights as well."

At the same time, the EU has also signed an extradition treaty with the U.S., which means that EU member states must also take EU law into account in their extradition decisions.

"As we know, when an EU law applies, it prevails in its application [over Estonian law]," she continued. "It doesn't override national law, but it has the so-called principle of primacy, meaning that if it applies, then it must be observed."

This primarily means compliance with the requirements of the Charter of Fundamental Rights of the European Union and abiding by European Court of Human Rights (ECHR) case law.

"What we have to consider here is whether, if we extradite someone, their fundamental rights are ensured adequate protection," the associate professor explained.

"There are plenty of examples in ECHR case law as well as in other member states' case law in which individuals haven't been extradited to the U.S. either because the death penalty applies there or because the [sentences issued] in the U.S. are so lengthy that there's practically no chance of them ever getting out of there again," she continued. "And if someone has no prospects for resocialization, then the ECHR has said that [this] individual may not be extradited, as that could constitute a denial of their dignity and may in that case be regarded as inhumane treatment."

If a suspect who would face that harsh of a sentence in the U.S. is not extradited, that nonetheless doesn't mean that they would escape punishment altogether, she added.

Prison conditions are in any case likewise key in terms of the protection of fundamental rights, Tupay noted, citing as an example the fact that German courts refused to extradite their citizens to the U.K. over concerns about British prison conditions potentially not ensuring humane treatment.

Estonian courts lack clarity in making extradition decisions

Soo, who analyzed the criminal law aspects of extradition, explained to ERR that the judicial proceedings involved in an extradition currently consist of two stages with differing procedures and deadlines. It is justified to ask whether

"In the first stage, the case is heard in a county court, the second in an administrative court," she explained. "The law and case law are unclear as to what exactly each court must consider. There are grounds to ask whether deciding an extradition in two judicial stages is justified, why it is justified, and what the purpose of each stage is."

According to the university Penal Law Department director, in the context of an unclear procedure, it is difficult for the accused to understand before which court they must raise the question of whether their fundamental rights are protected in the country requesting extradition, such as proportionate punishment and humane prison conditions.

"It could happen that the county court may find in the first stage that it isn't within their jurisdiction to discuss these matters, but then the administrative court finds in the second stage that these issues should have been settled in the county court already," she warned. "The loser here is the accused, whose fundamental rights end up going unenforced. Meanwhile, the state ends up failing to fulfill its obligation to ensure this person's fundamental rights. It would be appropriate to review the constitutionality of such a procedure."

Legal scholars at the University of Tartu drew up their analysis on the commission of LEVIN law firm (Advokaadibüroo Levin OÜ).

LEVIN is partnered with attorney Paul Keres, who is representing Sergei Potapenko, one of two Estonian citizens facing an 18-count indictment in the U.S. for their alleged involvement in a major cryptocurrency fraud and money laundering conspiracy. The other, Ivan Turõgin, is being represented by Cobalt attorney Karl Kask.

Last November, Turõgin and Potapenko were arrested in a joint operation by the FBI and Estonia's Central Criminal Police (KKP) as suspects in a $575 million cryptocurrency fraud and money laundering case.

This September, the Estonian government approved their extradition to the U.S., where, daily Eesti Päevaleht reported last week (link in Estonian), the two could face life in prison.


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Editor: Aili Vahtla

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