The Litvinenko Inquiry

The Litvinenko Inquiry
d. Mr Holiner confirmed the distinction at paragraph 25 of his report: 10
“In sum, the Counterterrorism Law permits the Federal Security Service, upon
obtaining authority from the President of the Russian Federation, to engage in
counterterrorist activities abroad aimed at eliminating terrorist threats, including
through the use of lethal force…The Counter-Extremism Law confers no similar
authority to act in respect of persons defined as extremists.”
e. Professor Service made a similar point at paragraph 68 of his report – the 2006 antiextremism
amendment, he said, “contained no permission for the assassination
of ‘extremists’ who were not terrorists” 11
f. The only legal route to extra-territorial action against Mr Litvinenko was therefore
under the Terrorism Law. However, action could only have been taken against
Mr Litvinenko under this law had he been involved in, or no doubt suspected
of involvement in, some form of terrorist activity. Article 3 of the Terrorism Law
contains definitions of terrorism and terrorist acts that are broadly conventional,
and certainly not as expansive as the definition of ‘extremism’ in the second of
the 2006 laws. Mr Batmanov’s letter (above) states that, “Alexander Litvinenko
did not make part of a terrorist organization and was not accused by Russian law
enforcement bodies of having committed a terrorist crime.” That accords with my
understanding of the evidence
5.19 On the basis of the evidence currently before me, and in light of the considerations
set out above, I am therefore not persuaded that any action could have been taken
by the FSB against Mr Litvinenko in 2006 under the terms of either of the 2006 laws.
5.20 For completeness, I should add that the letter from Mr Batmanov made a further
suggestion, to the effect that the Terrorism Law only established a legal basis for
Russia’s armed forces to take international action against terrorism, and that it did not
create any similar legal basis for international action by the FSB. Mr Holiner disputed
this analysis. His view was that the Terrorism Law did indeed authorise international
action of this sort by the FSB, and that this was also clear from the relevant terms of
the Federal Security Service Law.
5.21 I find Mr Holiner’s reasoning on this point compelling, but in the end it is unnecessary
for me to reach a conclusion on it. There is a simple factual reason why the terms of
the 2006 laws did not permit any Russian forces to take action against Mr Litvinenko
in the UK, namely that he had not been involved in terrorist activities.
Wider considerations
5.22 But as I have already indicated, that is not the end of the matter. Professor Service,
rightly in my view, identified a further consideration. Even if the strict terms of the 2006
laws could not be brought to bear against Mr Litvinenko, can it be said that they had a
subtler, less formal effect of encouraging, or emboldening, or even licensing the FSB
to take action against Mr Litvinenko and others like him?
5.23 Professor Service helpfully put the 2006 laws into their historical context. He referred in
particular to the public outrage in Russia following the killing of five Russian diplomats
by a Chechen supporting terrorist group in Iraq, and also to FSB claims in July 2006
10
INQ022399 (page 11 paragraph 25)
11
INQ019146 (page 22 paragraph 68)
90