Milenko Maric v County Court in Osijek, Croatia
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 13 December 2016 |
| Neutral Citation | [2016] EWHC 3526 (Admin) |
| Docket Number | CO/2878/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 December 2016 |
[2016] EWHC 3526 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Hickinbottom
CO/2878/2016
Mr Julian Atlee (Solicitor Advocate) (instructed by Atlee Chung & Company) appeared on behalf of the Appellant
Miss Kathryn Howarth (instructed by the Crown Prosecution Service) appeared on behalf of the Respondent
This is an appeal against the decision of District Judge Zani of 3 June 2016 to order the Appellant's extradition to Croatia, brought with the permission of Mitting J granted at an oral hearing on 7 October 2016. Croatia is a category 1 territory, and thus Part 1 of the Extradition Act 2003 ("the 2003 Act") applies.
The Appellant was born on 27 June 1959 in Beli Manastir in Croatia, which was then part of the Federal Socialist Republic of Yugoslavia. He is Serbian by ethnicity.
The basis of the application for the Appellant's extradition is an accusation European Arrest Warrant ("EAW") issued by the County Court in Osijek, Croatia, on 8 June 2015, and certified by the National Crime Agency ("the NCA") on 12 June of that year. It requests the Appellant's surrender for the purpose of prosecuting him for one offence of a war crime against civilian population contrary to article 120(1) of the Basic Penal Law of the Republic of Croatia, an offence for which the maximum punishment under the Croatian law is 20 years' imprisonment.
The facts of the alleged offence are that the Appellant, as a member of the militia known as "the Secretariat for International Affairs of Beli Manastir", took civilians of non-Serbian ethnic origin resident in the region of Baranya to the prison of the Secretariat, where he would beat them either alone or together with other militiamen. He was indicted in 2001, with over fifty other individuals.
Details of his part in the offence are given in the EAW as follows. There were three separate episodes. Other perpetrators to which reference is made are, as I understand it, individuals who are also on the same indictment. First, it is alleged that the Appellant, together with Velimir Bertic and Dusan Vuksic, arrested Govan Narandza on 26 August 1991 and searched his house. Second, the Appellant, together with Milan Jaric and Velimir Bertic, arrested Stipe Benko on 21 September 1991. Third, the Appellant beat Faranjo Joha, who had been arrested at the end of August 1991, on several occasions in the prison of the Secretariat. Specifically, "the entire body" of Joha was beaten by the Appellant, Dusan Madarac and Zoran Madarac with electric rubber truncheons. Further, they stole clothes from him together with 1,200DM in cash, a gold ring, a gold necklace, a watch and personal documents, as well as a pistol from his home.
The indictment was presented by the County Public Prosecutor's Office in Osijek on 3 April 2001. A decree for the Appellant's arrest was made on 11 May 2001. As I have indicated, the EAW was not issued until 2015. In explanation of the time that has passed since the alleged offence, the EAW says that, in 2001 the Appellant was put on an international wanted list, but without success. It was only in 2015 that he was located, in circumstances to which I shall shortly come, and it became possible to issue and serve the EAW.
In his statement, the Appellant says that he was state-educated in Yugoslavia, and qualified as an electrician in 1979. He underwent compulsory military service in the Yugoslav national army in 1979 and 1980. Thereafter he worked in a factory in Beli Manastir until 1991. By then, Croatia had declared its independence from Yugoslavia, and civil war had broken out in Croatia between Croats and Serbs who wished to remain a part of Yugoslavia. The Appellant says that he was dismissed from his job in 1991 because of his non-Croat ethnicity.
At that time, although not internationally recognised, the Serbian Republic of Krajina was formed. The Appellant says that he worked for a Serbian Krajina Police Force unit for about four years. In 1994, he was called up into the army of Serbian Krajina, in which he served as a driver on the front line around Beli Manastir.
In 1995, following a peace agreement, a United Nations military force occupied the area in which the Appellant lived. He then worked for the Forestry Police. However, he received a number of threatening calls from anonymous callers and, on 18 December 1997, he left Croatia for Serbia. There, he was granted refugee status. However, in June 1999, he was conscripted into the Serbian army to fight in Kosovo. He was not prepared to do that in support of nationalistic policies with which he did not agree; and he came to the United Kingdom where, in due course, he was granted the right to remain.
The Appellant says that, in about 2004, he became aware that his name was on one of the lists of suspected war criminals, when his sister told him as much; but he received no notice from the Croatian authorities that they were taking proceedings against him until he was arrested on unrelated UK domestic charges on 7 June 2015. It was only on 17 June 2015, when he was further arrested under and for the purposes of the EAW, that the EAW was served upon him.
At the time of his arrest, the Appellant lived in Derby with his partner, Ermina Obradovac, whom he met in UK in about 2001. She was a Bosnian refugee. The Appellant says that she suffers from significant physical and civil war-related psychological problems; and that is confirmed to an extent by the witness statement of Susan Chung, a partner in the solicitors representing the Appellant, who exhibits to her statement of 25 September 2015 various medical records of Mrs Obradovac. Those include a letter from Derby Hospitals NHS Foundation Trust confirming that Mrs Obradovac has diabetes; and, more pertinently, a letter dated 21 October 2013 from a locum consultant psychiatrist saying that she has "very significant physical and psychological health problems". She was then receiving treatment for her psychological problems at a Mental Health Resource Centre in Derby. The severity of her illness meant that she was unable to work, and the express aim of the letter was to support her application for enhanced benefit payments to relieve her financial hardship. The Appellant and Mrs Obradovac have a son born in England on 5 July 2003, who is now therefore 13 years old.
As I have indicated, after a contested extradition hearing, District Judge Zani ordered the Appellant's extradition on 3 June 2016. The Appellant appealed. Leave to appeal was initially refused on the papers by Wyn Williams J on 29 July. However, on 7 October, Mitting J granted leave to appeal on two grounds, namely passage of time (section 14 of the 2003 Act) and right to family life (section 21 of the 2003 Act, with article 8 of the European Convention on Human Rights). At the substantive hearing today, those grounds have been pressed upon me by Julian Atlee, Solicitor Advocate for the Appellant. Miss Kathryn Howarth of Counsel has appeared for the judicial authority.
Section 14 of the 2003 Act, so far as relevant to this appeal, provides that:
"A person's extradition to a category 1 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have … committed the extradition offence …"
I have been referred to authorities which have considered this provision, notably Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, Gomes and Goodyer v Government of the Republic of Trinidad and Tobago [2009] UKHL 21, Hutton v Government of Australia [2009] EWHC 564 (Admin) and, specifically in relation to the extradition of individuals to Croatia to face prosecution for war crimes, Pesut v Croatia [2015] EWHC 46 (Admin). It is unnecessary to drill deeply into those authorities. From them, the following propositions relevant to this appeal can be drawn.
First, "unjust" is directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, whilst "oppressive" is directed to hardship to the accused resulting from changes in his circumstances that have occurred during the relevant period ( Kakis at page 782, per Lord Diplock).
Second, whether the passage of time has made it "unjust" to extradite an individual depends upon whether a fair trial would be impossible ( Gomes at [32] and following).
Third, oppression can only be considered by reference to the nature of the offence or offences for which extradition is sought: the more serious the offence, the greater the public interest there is likely to be in extradition taking place ( Hutton at paragraph [14]). The test for oppression will...
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...information of its own motion. That is also my experience. 46 Merely by way of example, in Maric v County Court in Osijek, Croatia [2016] EWHC 3526 (Admin), the requesting authority sought the extradition of the requested person to face a charge of a war crime against civilian population. T......
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Rajkovic v County Court in Vukovar Croatia
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