(Dec. 3, 2019) On November 10, 2019, the Supreme Court of Israel sitting as a High Court of Justice unanimously rejected a petition to void the minister of justice’s authorization to extradite the petitioner, Alexei Burkov, to the United States. The Court similarly rejected the petitioner’s alternative request to require the United States to commit to transferring him to the Russian Federation, his country of citizenship, to serve his sentence in the event he is found guilty. (HCJ 7272/19 Alexei Burkov v. Minister of Justice, Nov. 11, 2019.)
Facts of the Case
On August 13, 2015, Burkov was indicted by a federal grand jury in the US District Court for the Eastern District of Virginia, and a warrant for his arrest was issued for his allegedly managing and being “the spirit behind” cc.Cardplanet, a website conducting illegal activities, from its inception until at least 2013. The website was suspected of being a platform for the sale of credit and debit cards, most of which belonged to U.S. citizens or had been issued by U.S. banks. On December 12, 2015, Burkov was arrested at Israel’s Ben Gurion Airport following an application filed by the U.S. government for temporary detention pending an extradition request on its behalf. The U.S. extradition request was filed in February 2016. (Para. 1; additional information at CrimA 6899/17 Burkov v. the Attorney General, Aug. 5, 2019, para. 2.)
During hearings before the Jerusalem District Court, Burkov argued that procedures related to the U.S. extradition request should have been put on hold because of the existence of a parallel request for his extradition filed on behalf of the Russian Federation. The District Court rejected Burkov’s arguments and declared him extraditable to the U.S. (HCJ 7272/19 para. 1.) Rejecting Burkov’s appeal of the District Court’s decision, the Supreme Court held that even though the Russian Federation had filed a request for his extradition, “the mere fact that a [later] competing extradition request was submitted [by another country] does not make the approval of the preceding extradition request a violation of public policy or harmful to an essential interest of the State of Israel.” (HCJ 7272/19 (quoting CrimA 6899/17 para. 16).) Following the rejection of Burkov’s appeal, the minister of justice signed the extradition request to the U.S. on October 30, 2019.
The Supreme Court’s Decision
The decision was rendered by Justice Esther Hayut, with Justices Isaac Amit and Ofer Grosskopf concurring.
Hayut stated that under the Extradition Law 5714-1954, when a foreign country files an extradition request, the minister of justice has the authority to order the attorney general to file a petition with the Jerusalem District Court to declare that the person whose extradition has been requested is extraditable. The Court will make such a declaration if it is convinced that the conditions for extradition under the Law have been met, in which case the minister of justice then orders the transfer of the requested person to the requesting country. (HCJ 7272/19 para. 6 (referring to the Extradition Law 5714-1954, §§ 3 & 18, Sefer HaHukim (Book of Laws, official gazette) No. 163 p. 174, as amended).) Although the minister’s authority throughout the extradition procedure is discretionary, because of the Law’s objective and previously established judicial tests, the minister could refuse extradition only under exceptional circumstances. Such “qualified circumstances” would primarily involve foreign affairs or personal or humanitarian concerns. (HCJ 7272/19 para. 6.)
The Extradition Law does not address a situation where two extradition requests relating to the same person are submitted to the State of Israel by two different countries. On the basis of both the 1962 Convention Relating to Extradition Between the Government of the United States and the Government of Israel as amended by the Protocol signed on July 6, 2005, and the 1957 European Convention on Extradition, to which both Israel and the Russian Federation are signatories, Hayut stated that
[w]here the requested state is required to decide between two competing extradition requests, it must consider the “option of extradition between the requesting countries; the relative severity of the offenses, to the extent that extradition is requested for the commission of different offenses; the location where the offenses were committed; the citizenship of the requested person; and the dates on which the extradition requests were received.” (HCJ 7272/19 para. 8 (quoting CrimA 6899/17 para. 16).)
In conclusion, Hayut held that the minister’s decision to extradite Burkov to the U.S. had been adopted after a thorough examination of all relevant considerations. She clarified that the Court had not found any qualified circumstances that might have justified judicial intervention in the minister’s decision. (HCJ 7272/19 para. 9.) She further rejected Burkov’s alternative claim, holding that there was no legal basis for requiring that the State of Israel condition Burkov’s extradition to the U.S. on that country’s commitment to deliver him to the Russian Federation to serve his penalty if he is convicted. A demand that a foreign country commit to returning a convicted Israeli citizen or resident to Israel to serve a penalty might apply under section 1A(a)(2) of the Law, but this condition did not apply to Burkov, who is neither an Israeli citizen nor a resident. Additionally, presenting such a condition would have an impact on the State of Israel’s relations with other countries, an area where the Court does not intervene. (Para. 10.)
Following the Supreme Court’s denial of his petition, Burkov was extradited to the U.S.