File No. 10901/73–74.
Mr. Secretary of State: Referring to a
conversation which I had the honor to have recently with your excellency
regarding the extradition of one Pouren, I deem it my duty to call your
attention to inclosed extract of a judgment rendered by the Swiss
Federal court in the matter of the extradition of one Wassilieff, a
refugee in Switzerland accused of assassinating the chief of police of
Penza.
The considerations on which was based the judgment of this high court,
ordering the extradition of the accused, set forth with strict logic and
profound learnedness the same idea and arguments which
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the Imperial Embassy is endeavoring to
impress upon the State Department in connection with the Pouren,
Rudewitz, and other eases.
In studying over the documents in these cases, which occurred during my
absence on leave, I could not help noticing the persistent efforts, by
violent agitation in the press, in public meetings, and by petitions
containing thousands of signatures, which certain elements apparently
desirous of creating friction between the two Governments have made for
the evident purpose of diverting these cases from the purely legal
domain into the domain of politics, in a spirit openly hostile to Russia
and the Imperial Government.
It therefore appears to me all the more desirable, for the sake of the
traditional cordiality of relations between Russia and the United
States, which I am sure the two Governments are equally anxious to
cultivate, that these matters should be settled in a manner
demonstrating the futility of all these efforts.
In taking the liberty to cite a decision of the Swiss Federal court by
way of precedent in matters of international jurisprudence, I do so
because it is well known that Switzerland has always been extremely
solicitous about preserving intact the right of asylum which she has for
centuries granted to the really political refugees of all countries.
[Inclosure—Translation.]
It can not be seriously contended that the act of which Wassilieff is
accused is a purely political crime, that is to say, a crime
directed solely against the State, for murder, being committed
against the life of a man, is by its very essence and form a
common-law crime, and only circumstances foreign to the act itself
can lend it the character of a relative political crime. However,
the Federal Court has, in all of its decisions (Ro 32 I p. 538
Belenzow, and 33 I p. 187 Keresselidze), admitted that treaties, and
particularly the Russo-Swiss treaty, do not confine the exception
made in favor of political crimes and offenses to purely political
offenses. It has, on the contrary, always considered that it was
proper to extend the exception to offenses which, “although
appearing among those enumerated in Art. 3 of the treaty and
although appearing thus in themselves as violations of the common
law, nevertheless bear the character of a political offense” by
reason of the circumstances under which they were committed.
However, this extension is not unlimited. Every time the Court has
faced a complex crime of this nature, it has deliberately judged
which factor predominated, the common law criminality or the
political criminality, and it has only granted the benefits of the
exception made in Art. 6 of the treaty in those cases in which the
political character of the offense predominated. This interpretation
of the treaty is in accordance with Art. 10, par. 2, of the federal
law, which says: “Extradition shall be granted, even when the guilty
party alleges a political purpose or motive, if the act for which
the extradition is demanded constitutes in the main a common-law
crime. The federal court shall freely judge the character of the
offense in each particular case according to the facts.”
Therefore, in view of this constant system of jurisprudence, which
there is no reason for abandoning, it is necessary to examine
whether the act committed by Wassilieff bears a predominantly
political character. …
The principal question to be determined is therefore whether the
murder of Kandaourow, chief of police of Pensa, should, in view of
the circumstances under which it was committed, be considered, as
Wassilieff contends, as an offense bearing a predominantly political
character, that is, as a relative political offense.
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In order to judge this question, in order to determine whether a
complex criminal act constitutes a relative political offense, we
must apply the general principles laid down by doctrine, principles
which the federal court has observed in a uniform series of
precedents. According to these principles an act can not be
considered as possessing the character of a relative political
offense unless it has been committed for the purpose of helping or
insuring the success of a purely political offense, that is, a
criminal act directed against the political or social organization
of the State. (See, for the general doctrine, and especially the
French doctrine, French Pandects: Vo Extradition, Nos. 370 et seq.
spec. 376, 378, 386). Lammasch summarizes these principles as
follows (translation): The characteristic of a relative political
crime consists in this, that the author does not commit the
common-law crime which coexists with the political crime for the
sake of committing it, nor for the sake of producing the result
which the common-law crime immediately entails; he does not kill for
the sake of killing somebody … the object aimed at by the act goes
beyond the immediate results which suffice to determine the
existence of a common-law crime; this object consists in the
execution of or the preparation for a criminal act against the
existence or political organization of a State.” (Duty to extradite
and right of asylum, page 294.) It is not sufficient that the
purpose pursued should possess a “political” character in the
extended and unprecise sense of the word, that is, that it should be
the purpose of some political party existing in the Nation. As a
matter of fact, the official purpose of a party may, in certain
cases, serve as a cloak for the most miserable and reprehensible
passions. A refusal to grant extradition, and the granting of asylum
which it implies, are only warranted when the author of the crime
has had a higher ideal, when he has had reason to hope that his act
would result in an improvement of the political or social
organization of the State. It is only then that, in view of the
exalted purpose pursued by the criminal, his act appears in a more
favorable light, a circumstance which may go so far as to excuse the
common-law crime of which the accused has become guilty. Lammasch,
in his aforecited work (p. 295), says on
this subject (translation): “However, the words ‘political purpose’
must not be given a vague and general scope; they must be taken in
their plain and exact meaning. These words presuppose an intent to
commit or pave the way for a political offense in the restricted
sense, that is, a purely political offense.”
However, in order that asylum may be granted and extradition refused,
a second condition must be fulfilled. Just as the Federal Court
decided on May 7, 1907, in the Kilatschitsky case (Ro 33 I p. 406
and 407), there must be a direct connection between the crime
committed and the purpose pursued by a party to modify the political
or social organization of the Nation. It is not sufficient that this
connection should be more or less perceptible, it must be clear and
well defined. It is upon the accused, who opposes the extradition,
that the necessity devolves of proving the facts from which the
judge may infer the existence of this direct connection and conclude
that the purpose pursued was a purely political one. If it is shown
by the evidence adduced that the political purpose was remote, so
remote that the perpetrator of the crime could not reasonably have
supposed that his act would or might have a direct political effect
equally perceptible to third parties, every ground for granting
asylum disappears. “The more distant the connection is between the
criminal act itself and the political undertaking in view, the less
does the act as a rule appear capable of facilitating the
accomplishment of the undertaking, and the less can it be considered
as a political offense. For instance, the robbery of public
treasuries, committed with the intention of not using the proceeds
of the robbery until after several years, is not in our opinion a
political offense. Only a fanaticism which takes account of nothing
and therefore deserves no consideration could favor the application
in this case of the principle that the end sanctifies or at least
justifies the means. (See Von Bahr, The doctrine of extradition,
court chamber, 1882, p. 500.) It was evidently in accordance with
these principles that the Federal Council, in October, 1872, even
before the conclusion of the Russo-Swiss extradition treaty now in
force, extradited to Russia the individual by the name of
Netchaieff, who was being prosecuted for inciting to murder and had
opposed extradition on the ground that he had only committed the
crime because he feared his victim would reveal the existence of a
revolutionary plot, and consequently for a purely political purpose.
(See Journal of private international law, 1880, p. 76.)
There is, finally, a third condition to be fulfilled. Even when the
ultimate purpose pursued is a political end, in the narrow sense of
the term, the
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common-law
element may nevertheless still predominate over the political
character of the crime, by reason of the atrocity of the means
employed to attain the end sought. This element should
unquestionably be taken into consideration. This is the intention of
the Swiss legislator, as shown from the preliminary works to the
Swiss extradition law. It is sufficient, in order to become
convinced of this, to read the message of the Federal Council of
June 9, 1890 (Swiss Official Gazette, 1890, Vol. III, p. 215 et
seq.). This message, it is true, rejects the theory adopted by the
International Law Institute at its meeting at Oxford in 1880,
according to which no assassination, arson, or robbery should be
excepted from extradition for the sole reason that the perpetrator
was actuated by a political motive. It also rejects the opinion
offered by Lammarsch not only as his own but as that of the majority
of writers, according to which every assassin at least should be
extradited. (See besides Renault, Journal of Private International
Law, 1880, p. 78.) However, the reason the message did not adopt
this view was that it was unwilling to declare that certain
common-law crimes should, under all circumstances and with no
possible exception, be deprived of the immunity granted to political
crimes. It wished to leave the way open to exceptions which, though
rare, are conceivable, and where the interests at stake are of more
value to humanity than the life of an individual. It was only within
these limits that the Federal Council admitted that an assassination
might have the preponderating character of a poitical offense and be
considered as a relative political offense. There is no doubt but
that, as shown from the reasons adduced by it in support of the
present Art. 10 of the Swiss extradition law, the Federal Council
condemns and reproves the partisans of those extreme groups who “do
not consider crime as the extreme resource, as the ultima ratio, of
a pursued and persecuted party having no other means of defense, but
who use it as an ordinary means of combat, and even as the sole
weapon for the purpose of terrorizing peoples.” In accepting the
draft of Art. 10 of the law as it was submitted to them by the
Federal Council, the Chambers approved this view of the matter, and
therefore did not wish to admit that every common-law offense having
a political tinge should be considered as a relative political
offense which might justify a refusal of extradition.
It was on the basis of these principles that the Federal Court
decided, in the Belenzow case of July 18, 1906 (Ro 32, p. 539), that
the foundation of the right of asylum in Switzerland rests on the
idea that asylum ought to be granted to a foreigner who is worthy of
protection, who has fought for the sake of his political convictions
and is being sought for this reason, but that this favor should not
be granted to any except persons who are worthy of it. (See besides
Beauchet, Extradition treaty, Paris, p. 230 et seq.)
