Introduction

The U.S. charged Mr. Dmitry Ukrainskiy, a Russian citizen, with cybercrimes related to malware – malicious computer software breaches of US computer systems — and seeks to extradite him from the Kingdom of Thailand to face charges in New York. The Russian Federation seeks to extradite Mr. Ukrainskiy on fraud charges, unrelated to the U.S. charges.

The Bangkok Criminal Court granted the Russian request to extradite, to which Mr. Ukrainskiy consented. Mr. Ukrainskiy did not consent to the U.S. extradition request, and the Thai court scheduled a hearing on the U.S. extradition request for 12 November 2018.  If the court grants the U.S. request, then the court will have granted two competing extradition request – to Russia and to the U.S.  Since it would be physically impossible to extradite Mr. Ukrainskiy to two countries, a subsequent decision would need to be made on whether  Mr. Ukrainskiy would be sent to Russia or to the U.S.

U.S. and Thai law students have been conducting legal research for Mr. Ukrainskiy’s case.

The U.S. students, from Indiana University McKinney School of Law, are enrolled in the autumn 2018 International Criminal Law course of Professor George E. Edwards. He is also a Visiting Fellow at Bangkok’s Chulalongkorn University Faculty of Law, with student research assistant participation from that school. Professor Edwards and the students are working with the Thai law firm, named Thailand Bail, owned by Mr. Nathan Feeney and others, that represents Mr. Ukrainskiy.

This case tests the extent to which the U.S. can try foreigners for alleged conduct occurring outside the U.S., but with effects inside the U.S., and also tests questions concerning the role of politics in extradition requests and the grant of competing extradition requests.

Russia has challenged the U.S. extraterritorial application of U.S. law as applied to non-citizens generally, but as applied to Russians specifically.

The U.S. has recently sought to extradite Russians from Hungary, Maldives, Spain, Liberia, Czech Republic, Thailand (many), and other countries. Russia has sought to extradite their own nationals in some of these cases, with these countries having to decide whether to send the person to the U.S. or home to Russia. Most of the countries sided with the U.S., but, not all (for example, Hungary sided with sending the person to Russia).

Other U.S. cases involving Russian defendants include cases brought by U.S. Special Counsel Robert Mueller.

The U.S. Request to Extradite

Federal prosecutors in Brooklyn, New York, alleged that Mr. Ukrainskiy and others used malicious software (malware) to breach U.S. computer systems and access U.S. financial institutions’ passwords and usernames, and unlawfully transfer funds from victims’ U.S. bank accounts to other countries, including Thailand.

Pursuant to an extradition treaty between the U.S. and Thailand, the U.S. requested that Thailand extradite Mr. Ukrainskiy to the U.S. to stand trial for wire fraud, bank fraud and money laundering. The alleged behavior occurred from 2014 to 2016, and U.S. victims allegedly lost over $1 million (U.S.). The U.S. indicted Mr. Ukrainskiy, and issued their extradition request. Mr. Ukrainsky faces decades in a U.S. prison if sent to New York and convicted.

The Bangkok Criminal Court scheduled a hearing for 12 November 2018 on the question of whether to grant the U.S. extradition request.

Russian Request to Extradite

Within weeks after the U.S. requested Mr. Ukrainskiy’s extradition, the Russian government requested that Mr. Ukrainskiy be extradited to Russia to face fraud charges rooted in alleged behavior occurring some years ago.

Russia has no extradition treaty with Thailand. However, no rules of international law, Thai law, or Russian law prohibit extradition in the absence of a treaty. For extradition to Russia to occur, Russia and Thailand would only need to agree, reflecting the sovereign power of states to enter into ad hoc agreements.

Months ago, the Thai court granted Russia’s request to extradite Ukrainskiy to Russia, and Mr. Ukrainskiy did not object to being sent to Russia. Extradition to Russia was put on hold until the Thai court decides whether to grant the U.S. extradition request.

Competing Extradition Requests

If Thailand grants the U.S. extradition request, Thailand will be faced with two approved competing extradition requests – one from the U.S. and one from Russia. It appears as though the courts of Thailand have never before been faced with the question of competing extradition requests – where two countries are competing over the extradition of a defendant.

It is physically impossible for Thailand to extradite Mr. Ukrainskiy to two different countries, and he would likely be sent to either the U.S. or Russia, as no other country has requested his, and he has not requested to be sent to another country (and has requested to be sent home to Russia).

The U.S. / Thailand extradition Treaty and the Thai Extradition Act both address criteria that Thailand might consider when choosing between the two possible extradition recipient countries.

These criteria include that the sending country (Thailand), when deciding between two competing requests, may consider: (a) Mr. Ukrainskiy’s nationality; (b) which extradition request for him was received first; (c) where his alleged crime(s) occurred; (d) the severity of the crimes in the two countries seeking extradition; (e) and other factors.

Neither U.S., Thai, nor international law defines the specific criteria, nor illuminates the criteria’s scope. Nevertheless, the criteria should be used to ascertain where Mr. Ukrainsky should be sent, as follows:

(a) Nationality. Mr. Ukrainskiy is Russian, so that operates in favor of Russia’s request.

(b) Which request was first. The U.S. requested extradition before Russia requested extradition, which operates in favor of the U.S. request.

(c) Where the crimes occurred. Per the Russian request, criminal behavior occurred in Russia – fraud. Per the U.S. request, the U.S. would likely argue that the criminal behavior occurred in the U.S., as that is where the malware was sent, where the victims were, and where some of the banks from which funds were transferred were. The defense would likely argue that it is debatable where the crimes occurred (if any crimes occurred at all). Mr. Ukrainskiy did not enter the U.S. during the period of time that the alleged fraudulent behavior occurred, and for the sake of argument, presume that he never in his life entered the U.S., for any purpose. Did his alleged U.S.-charged crimes (bank fraud, wire fraud, money laundering) occur in the country from which the malware was dispatched (perhaps Thailand or some other country), the U.S. where the malware was alleged to have infected U.S. computers, the U.S. where the banks were that held the funds that were allegedly stolen, the United Arab Emirates where funds were allegedly transferred, Thailand where transferred funds were allegedly withdrawn from ATM machines, or other countries?

(d) Relative severity of the crimes. Thailand is directed to consider whether the U.S. or Russian crimes are more severe than the other. But, the extradition agreement does not inform whether the person should be sent to the country with the more severe crimes or punishments, or sent to the country with the less severe crimes or punishments.

Also, there is no clear guidance as to how to weigh the criteria.

For example, in this case Mr. Ukrainskiy’s Russian nationality would likely be considered a point in favor of extradition to Russia, whereas the U.S. requesting extradition before Russia requested extradition would be a point in favor of extradition to the U.S.

But are the nationality and order of request criteria to be given equal weight in the decision making, or should one factor be given more weight than the other? Is one point for nationality equal to one point for being the first extradition request?

Double Jeopardy Issue

The Thai / U.S. extradition treaty and the Thai Extradition Act prohibit extradition if it would result in double jeopardy – or ne bis in idem – a principle of law in which a person shall not be twice exposed to jeopardy under criminal law for the same “offense” or for the same “conduct”. Thus, once a defendant has been “in jeopardy” in a criminal case – with either a conviction or acquittal or another outcome – he cannot be prosecuted again.

Double jeopardy is relevant in Mr. Ukrainskiy’s case because he was charged with and convicted in a Thai court for money laundering, involving facts that overlap with facts associated with the charges for which the U.S. is seeking extradition. Should the Thai court, when considering double jeopardy, look only to the name of the crime in its determination? Must the U.S. money laundering charges fail under double jeopardy because Mr. Ukrainsky was convicted of money laundering in Thailand – as the crimes in Thailand and the U.S. have the same name – “money laundering”? Or, should the Thai court not focus on the name of the crime in both countries, but focus on what facts underly the charges in the two jurisdictions? Are the facts underlying the Thai charges identical to or different from the facts underlying the U.S. charges? If the money laundering claim in the U.S. is excluded from consideration, can extradition occur on the other two charges – bank fraud and wire fraud?

The Political Question Doctrine & Whether Mr. Ukrainskiy get a fair trial in the U.S.?

The Thai / U.S. extradition treaty bans extradition when the crime charged is political in nature (e.g., treason, defamation of the government) or when the crime is charged for political purposes. In this case, there is no allegation that the crimes charged – bank fraud, wire fraud, money laundering – are political offenses. However, Mr. Ukrainsky would argue that he was prosecuted for political purposes, for example, so that the U.S. might extract information from him related to his service as a prosecutor during Soviet days.

Furthermore, Mr. Ukrainskiy argues that it is impossible for him to receive a fair trial in the U.S. today since he is a Russian charged with cybercrimes, given negativity associated with a dozen Russians who allegedly hacked into the Democratic National Committee’s website in 2016 during the Presidential Elections, charges of collusion with Russia during the 2016 Presidential campaign, the number of high-profile Russians extradited to the U.S. or sought to be extradited to the U.S. for cybercrimes, and the number of Russians indicted through the Special Counsel Robert Mueller investigation. Mr. Ukrainskiy e would argue that U.S. jury might be biased against him, as a Russian facing computer charges, particularly of the magnitude charged.

The 12 November Extradition Hearing in Bangkok

A hearing in the Bangkok Criminal Court was scheduled for 1:30 p.m., Monday, 12 November 2018, at which a panel of 4 judges was to hear arguments as to whether the U.S. extradition request should be granted.

By 1:15 p.m., major stakeholders in the case were in the spartan, 8th floor courtroom, including representatives from the U.S. Embassy (Department of Justice Attaché) and the Russian Embassy (Consul General), apparent representation from the Thai Ministry of Foreign Affairs, the Thai criminal prosecution, Mr. Ukrainskiy’s legal defense team, Russian media,  a friend of Mr. Ukrainskiy, representation from the Indiana University McKinney School of Law and Chulalongkorn Law Faculty, and observers.

Mr. Ukrainskiy was brought into the courtroom, in prison garb and ankle shackles, wearing a light blue surgical face mask.

By 1:30, the panel of two male and two female judges solemnly entered. After dealing with short matters  on other cases, the chief judge called Mr. Ukrainskiy’s case.

The chief judge announced that the Russian / Thai interpreter had phoned saying she was ill and would not be in court. Apparently only one certified Russian / Thai court reporter exists in Thailand, and when she is out, no certified Russian / Thai interpretation can occur. She was expected back in about 2 weeks.

At the hearing, Mr. Ukrainskiy, as the hearing’s key witness, would have testified as to why he should not be extradited to the U.S.

Part of his testimony would have focused on his background as an army prosecutor and as a special forces member (purportedly a member of the Russian equivalent to U.S. Special Forces / Navy Seals) (and, as noted below, such testimony would be presented at the resumed hearing, 17 December 2018).

No interpreter? What next?

After the interpreter’s absence was made known, the two clear options were: (a) for the hearing to go forward without the Russian / Thai interpreter; or (b) for the hearing to be postponed.

In theory, the hearing could have proceeded despite the Russian / Thai interpreter’s absence. Interpretation could have been Thai / English, as Mr. Ukrainskiy, who is a native Russian speaker, speaks English. A Thai / English unofficial interpreter was present and could have interpreted.

However, it is believed that Mr. Ukrainskiy’s legal team rejected going forward without a Russian / Thai interpreter since Mr. Ukrainskiy himself was scheduled to testify, and his testimony would have involved technical and legal military terms, which might have been lost with Thai / English interpretation. Mr. Ukrainskiy has the right under Thai Law to an interpreter of his own language, and it was decided that he would avail himself of such.

Postponement

The court decided to postpone the hearing until 17 December 2018, 1:00 p.m., in the same courtroom. This would be Mr. Ukrainskiy’s opportunity to testify on issues he wishes the court to consider when the court is cdeciding whether to grant the U.S. request to extradite. Since the Russian extradition request has already been granted, if the U.S. request is granted Mr. Ukrainskiy and his legal team will likely be back in court, arguing the merits of U.S. versus Russia as the proper place to be extradited. For the November 2018 hearing, postponed to 17 December 2018, the issue is solely whether the U.S. extradition request is granted. Again, the competing request arguments will be the focus only if the court grants the U.S. extradition request.

http://www.GitmoObserver.com is the website of the U.S. Military Commission Monitoring Project of the Program in International Human Rights Law of Indiana University McKinney School of Law.