File No. 10901/73–74.

The Russian Ambassador to the Secretary of State.

No. 589.]

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 [Page 519] 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.

Please accept, etc.,



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 [Page 521] 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.)