High Court approves Russian hacker extradition to U.S.

Last week, the hacker and an Israeli woman in a Russian prison for cannabis possession had both requested the High Court to block his extradition to the US.

Supreme Court President Esther Hayut (photo credit: MARC ISRAEL SELLEM)
Supreme Court President Esther Hayut
(photo credit: MARC ISRAEL SELLEM)
The High Court of Justice approved the extradition of a Russian hacker to the US on Sunday, rejecting his requests to be extradited or to serve his potential jail sentence in Russia.
Last week, the hacker and an Israeli woman imprisoned in Russia for cannabis possession both had petitioned the High Court to block his extradition to the US.
The family of Naama Issachar, serving a seven-and-a-half-year sentence in Russia, had filed their petition two weeks ago, while the hacker, Alexei Burkov, filed his last week. Later last week, Issachar’s family withdrew their petition.
These moves follow Acting Justice Minister Amir Ohana’s signing the extradition order to send Burkov to the US for perpetrating cyber fraud. There were also prior rulings by the Jerusalem District Court and the Supreme Court to extradite him.
Generally, the petitioners oppose any extradition, but given the state of legal play, they were pushing for extradition to Russia rather than the US, as part of a package deal for Russia to return Issachar to Israel.
Israelis generally view Issachar as having violated the law, but sense that the violation was itself was minor and the seemingly heavy Russian jail sentence was a political move to try to press Israel into returning Burkov to Moscow.
In a bizarre legal twist unique to the extradition process, though the Supreme Court already ordered Burkov’s extradition, he had a second opportunity to object after the justice minister signed the extradition order by addressing his petition to the same body, but in its capacity as the High Court of Justice.
Essentially, the idea is that extradition has both a criminal and constitutional component, and that the initial Supreme Court ruling addresses the criminal obstacles, while the later High Court ruling addresses any constitutional obstacles.
In theory, the High Court could have overturned the earlier Supreme Court ruling – and in fact, the High Court had frozen the extradition until it could issue a decision.
Practically speaking, cases where the High Court (in its capacity as the Supreme Court) denies an extradition that it has already approved are extraordinarily rare.
The two main arguments that Burkov seemed to be basing the latest petition to the High Court on were: firstly, that earlier court decisions were to extradite him, in general, but not necessarily specifically to the US rather than Russia, and, secondly, that Burkov was not physically present in the US.
Classically, in an extradition case, one person commits a crime in his home country and flees to a foreign country to escape the home country’s law and jurisdiction. Typically, the criminal acted for personal gain, and neither of the governments involved are invested – one way or the other – in the outcome of the case.
If there is an extradition treaty between the country of origin and the country to where the criminal fled, he is usually extradited back home. If there is no treaty, perhaps he may not be returned.
And then there is the situation where diplomatic considerations break into the fold.
Here, Burkov has been on “extradition row” since 2015, when the US filed a serious and well-grounded evidentiary request for extraditing him to the US for perpetrating the cyber fraud scheme.
In the age of globalized crime, physically residing in a country is not necessarily required if the main damage resulting from the criminal actions were also incurred in that country. So normally, his extradition to the US would be a done deal.
Russia’s harsh sentence of Issachar sparked speculation that Burkov may have had a higher value to Moscow and that he might have been involved in cyber intelligence activities. Otherwise, it would be unclear why Russia would take notice of any one citizen getting a jail sentence for fraud.
There are many political reasons why Prime Minister Benjamin Netanyahu would want to please Russian President Vladimir Putin – even if some might be a few legal ones.
Ultimately, however, the extradition was always expected to go through due to these legal arguments, and because Israel would be even more concerned about upsetting the US by failing to extradite Burkov than it would be concerned about alienating Russia.
The High Court said that arguments to extradite Burkov to Russia, or to have him serve his potential jail sentence there, had no real legal basis.