Facts and proceedings of the case:
An Estonian citizen Marko Rudi was charged by the US prosecutors with committing several crimes in the capacity of an US government consultant in Iraqi development programs, including internet fraud, embezzlement of US federal funds, bribery and money laundering. In November 2008 the US Justice Department requested Estonia to extradite Mr. Rudi to the US.
Harju County Court (criminal court) delivered a judgment on November 13th 2008, in which it verified the legal admissibility of extraditing Mr. Rudi on the counts of internet fraud and embezzlement. It declared extradition legally inadmissible on the counts of bribery and money laundering.
By an order of December 12th 2008 the Government of the Republic decided to extradite Mr Rudi to the US with competence to charge him with the crimes of internet fraud and embezzlement. The Government refused to extradite Mr. Rudi on the charges of bribery and money laundering.
Tallinn Administrative Court dismissed the lawsuit brought by Mr. Rudi against the government´s extradition decision. The Administrative Court held that the question of legal admissibility of extradition had been previously decided by the competent Harju County Court whose decision is legally binding, final and cannot be appealed under the provisions of Criminal Procedure Code. The decision of the government was based on the judgment of Harju County Court and is therefore in accordance with the law in respect of the legal admissibility of the extradition. Therefore the administrative court dismissed all the applicant´s claims in this regard due to lack of competence to review such questions. The administrative Court held that the government had exercised its discretion within the boundaries of law, took into consideration all relevant facts, weighed and balanced the competing interests correctly. Therefore the executive decision to extradite Mr. Rudi was lawful.
Mr. Rudi appealed the judgment of Tallinn Administrative Court to the Tallinn Court of Appeal. He maintained that extradition is legally inadmissible for several reasons and that the judgment of Harju County Court was unlawful.
Meanwhile, in a separate proceeding, the Supreme Court on May 15th 2009 held that the decision of Harju County Court on the question of legal admissibility of extradition cannot be appealed by Mr. Rudi due to relevant restrictions of appeal of the Criminal Code Procedure. The Supreme Court held that restriction of appeal against such a judgment is not unconstitutional. Art 24 (5) of the Constitution does not provide for unlimited possibilities to appeal any court judgment of any kind. ECHR also does not provide for such an absolute right of appeal. The Supreme Court held that extradition does not take place according to the rules and principles of criminal procedure, but it is rather a specific form of government action of international cooperation. Since the proceeding conclude with an administrative Act of the government, which can be challenged in due course in administrative court proceedings, the right of appeal on guaranteed by administrative courts proceedings. The competence of Harju County Court to make an initial ruling on the question of legal admissibility of extradition can be justified with the fact that extradition cases are inherently linked with crimes. The Supreme Court concluded that the decision of Harju County Court is not compulsory for the government when adopting an administrative act on extradition. Declaring extradition legally admissible merely creates legal grounds for the government to proceed making the final discretionary decision.
Should the Court of Appeal stay the proceedings of Mr. Rudi´s appeal until the Supreme Court has decided the constitutionality of Code of Criminal Procedure which does not allow appeal against the judgment of Harju County Court in relation to legal admissibility of extradition?
Does the administrative court have jurisdiction and competence to review the question of legal admissibility of extradition after the criminal court has made a prior judgment on the same question? If no, are the constitutional rights of appeal of the person to be extradited guaranteed?
Should the decision to extradite a person be quashed if the government has relied solely on the findings of Harju County Court and has not itself analyzed the legal admissibility of extradition?
The Constitution of the Republic of Estonia
Art 36(2): No Estonian citizen shall be extradited to a foreign state, except under conditions prescribed by an international treaty and pursuant to procedure provided by such treaty and by law. Extradition shall be decided by the Government of the Republic. Everyone who is under an extradition order has the right to contest the extradition in an Estonian court.
Art 24 (5) Everyone has the right of appeal to a higher court against the judgment in his or her case pursuant to procedure provided by law.
Art 15: (1) Everyone whose rights and freedoms are violated has the right of recourse to the courts. Everyone has the right, while his or her case is before the court, to petition for any relevant law, other legislation or procedure to be declared unconstitutional. (2) The courts shall observe the Constitution and shall declare unconstitutional any law, other legislation or procedure which violates the rights and freedoms provided by the Constitution or which is otherwise in conflict with the Constitution.
Code of Criminal Procedure
Art 439 (1) Extradition of a person for the purposes of continuation of the criminal proceedings concerning him or her in a foreign state is permitted if the person is suspected or accused of a criminal offence which is punishable by at least one year of imprisonment according to both the penal law of the requesting state and the Penal Code of Estonia.
Art 440 (1) 3) /…/ Extradition of a person to a foreign state is prohibited if: /…/ according to the laws of the requesting state or Estonia, the limitation period for the criminal offence has expired /.../
Art 443: The procedure for the extradition of a person to a foreign state is divided into the preliminary proceeding in the Ministry of Justice and the Public Prosecutor’s Office, verification of the legal admissibility of the extradition in court, and deciding on extradition falling within the competence of the executive power.
Art 446: Verification of the legal admissibility of the extradition of a person to a foreign state falls within the jurisdiction of Harju County Court.
Art 451 (1) In the adjudication of a request for the extradition of a person to a foreign state, a court shall make one of the following rulings: 1) to declare the extradition legally admissible; 2) to declare the extradition legally inadmissible.
Art 452 (1) The extradition of an Estonian citizen shall be decided by the Government of the Republic.
(3) A reasoned decision to grant or refuse to grant extradition shall be made promptly.
(5) A decision on the extradition of a person enters into force unless the decision is appealed pursuant to administrative procedure or is amended as a result of a court proceeding.
The norms regulating extradition are incorporated into the Code of Criminal Procedure but in fact the proceedings of extradition are considered to be of administrative nature and relevant constitutional safeguards for rights in the administrative procedure are applied.
It is certainly not clear from the reasoning of the Supreme Court decision of May 15th 2009 whether the government should and could make its own decision on the legal admissibility of extradition or is it bound with the assessment delivered in the prior ruling of Harju County Court. Accordingly the competence of the administrative court in reviewing the legality of the government´s administrative act on extradition is debatable. What is clear that only legal admissibility of extradition does not oblige the government to extradite the person. It will undoubtedly remain a political and discretionary decision of the executive power even if extradition is legally permissible.
In Estonian constitutional jurisprudence much emphasis is put on the right of the citizen to appeal decisions of the executive power and the power of the administrative court to review the legality of the challenged administrative act in all respects, incl legal, factual, boundaries of discretion etc. Therefore it was decided that for the maximum protection of fundamental and constitutional rights the government and administrative court should not be bound by the prior ruling of Harju County Court, since the latter´s decision was not subject to appeal.
The person to be extradited has various constitutional rights in the administrative proceedings conducted by the government. It has a right to be heard and its claims taken into account by the government. That includes its claims on the question of legal admissibility of extradition. However, the fact that the government fails to present its reasons for considering the extradition legally permissible and fails to analyze the person´s objections in this respects, is not in itself sufficient grounds to quash the decision of the government if the person has the opportunity to present his or her relevant claims to the administrative court and the latter comes to the conclusion that extradition was in this case legally permissible. According to the Act on Administrative Procedure: “Repeal of an administrative act cannot be demanded solely for the reason that procedural requirements are violated upon issue of the administrative act or the administrative act does not comply with the requirements for formal validity if the above-mentioned violations cannot affect the resolution of the matter.” Since the decision of the legal admissibility of extradition is purely a legal question, failing to give reasons in this respect could not have influenced the legality of the discretionary element of the administrative act (of course this presupposes that the administrative court on appeal establishes that extradition was in this case actually legally permissible).
It was also held that the administrative court should stay the proceedings in the case at hand (Rudi´s appeal against the government) until the Supreme Court rules on the constitutionality of restriction of appeal against the judgment of Harju County Court. The Court of Appeal held that waiting for the decision of the Supreme Court would contribute to the correct and lawful adjudication of the case at hand. The need to decide the case correctly outweighs the public interest to decide the case as promptly as possible.