Spanovic v Government of Croatia
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes |
| Judgment Date | 15 May 2009 |
| Neutral Citation | [2009] EWHC 723 (Admin),[2007] EWHC 1770 (Admin) |
| Docket Number | Case No: CO/2540/2007,Case No: CO/7230/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 15 May 2009 |
[2007] EWHC 1770 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Lord Justice Hughes
Mr Justice Treacy
Case No: CO/2540/2007
Mr David Perry QC and Miss Melanie Cumberland (instructed by Crown Prosecution Service) for the Claimant/Appellant
Mr Nicholas Stewart QC and Mr B V O`Toole (instructed by Atlee Chung & Co.)
for the Defendant/Respondent
Hearing date: Friday 13/07/07
Judgement
In this extradition appeal, the requesting Government, Croatia, contends that the District Judge was wrong to refuse extradition on the grounds of passage of time (s 82 Extradition Act 2003).
The respondent Mr Spanovic is a Serb who lived in Eastern Slavonia, part of what is now Croatia. In the early 1990s it was part of Yugoslavia, which included what are now Serbia and Croatia, as well as other regions such as Bosnia-Herzegovina and Kosovo which do not here concern us. As is well known, civil conflicts broke out throughout Yugoslavia in 1990–91. In the course of this, ethnic Croats unilaterally declared independence for what is now Croatia, and there was civil conflict between them and those minority inhabitants of the region who were of Serb origin. No doubt there were crimes or complaints of crimes on both sides.
The respondent joined the Serbian faction in the part of the region where he lived. He was then about 29 years of age. Initially the force was entitled "Home Defence Guard", but latterly it was subsumed into a larger Serb organization styled the Yugoslav National Army. There is some dispute whether he was a private soldier, as he contends, or a leader/officer, as it is said he has previously claimed. On his own evidence he remained in this force until 1995.
On 17 November 1993 a trial was held in the region where he had previously lived, which was by then under Croat control. Nineteen Defendants, of whom the respondent was one, were tried in their absence. The charge was that they, as members of the Serb opposition, had attacked two villages in August 1991. The allegation was that they had opened fire (although not that anyone had been shot), that houses had been burned, that vehicles, televisions and other possessions had been appropriated, and that one resident, said to be a civilian, had been beaten up. It was also said that mines had been spread. None of those accused had been arrested, nor were they aware of the trial. All were convicted and sentenced to 20 years imprisonment. The charge was laid as a war crime on the basis that the attack had been on civilian populations.
No warrant for the arrest or detention of the respondent was issued until April 1995. It needs of course to be remembered that the whole region was in a state of enormous confusion and civil strife. That warrant was not served, and nor was any other process served upon the respondent until 2006.
In August 1995, the respondent departed for what is now Serbia. When the political situation changed, with the arrival of a United Nations supervising administration in his homeland area of Eastern Slavonia (UNTAES), he returned. Between January 1996 and November 1998 he remained in this region, and also travelled apparently relatively freely. In November 1998 he came to the UK and claimed asylum, in part on the basis that he had learned that he had been convicted in what he contended was a show trial and that he would be persecuted as a Serb if obliged to return.
Before the District Judge the respondent contended that he had nothing to do with any attack on the villages in question, though he said that he knew at least one of them quite well. He put his identity in issue, but it was clear that he was the person convicted, whether rightly or otherwise. He contended that he did not appear to have the right to a re-trial which is required by s 85 for a person convicted in his absence who did not deliberately absent himself. The Government, however, gave an assurance that he would be re-tried. Whatever the basis in Croatian law for that may be, which remains unclear, it is no longer in issue that he will in fact undergo a retrial if returned.
In addition to putting those matters in issue, the respondent contended before the District Judge that unfair discrimination against ethnic Serbs meant that he could not have a fair trial, and that a general amnesty had been applied in a discriminatory manner to exclude Serbs such as himself. Those contentions gave rise to possible issues under s 81 (extraneous considerations) and s 87 (Convention Rights). The District Judge did not, however, rule on these possible bars to extradition, and expressly left them open, because he concluded that the bar provided for in section 82 (passage of time) was made out.
The Requesting Government appeals against the finding on the passage of time. The operation of the appeals mechanisms provided by the Extradition Act can be complex: see Da An Chen v Romania [2007] EWHC 520 (Admin). But in this case it is comparatively simple. The appellant Government accepts that if it succeeds the proper course is for this court to send back to the District Judge under section 106(1)(b) the question whether the passage of time bar is made out, so that it can be re-decided by him in the light of the judgment of this court. If he were to decide it differently, he would then be required to go on to consider the other possible bars to extradition raised by the respondent but as yet unadjudicated upon: see s 106(7).
At a relatively late stage the respondent has lodged a substantial volume of additional evidence. Most of it, if accepted, goes to support his contention of discrimination against Serbs in Croatia, He contends that as a Serb he was not tried fairly in 1993, that he would not have been fairly re-tried if he had surrendered in 1998 when he knew of the conviction, and furthermore that he still cannot obtain a fair trial in Croatia. Some of the evidence would go to support his contention that he has been visible to the Croatian authorities since at least 1997. There could have been no question of this court investigating all this material in the time allotted for the appeal. Moreover, whilst no doubt technically possible for us to do so, it would not have been appropriate to adjourn to hear it at length later. The District Judge has embarked upon hearing the evidence, including that of the respondent himself. He has heard part of the evidence going to Convention Rights, and possibly to extraneous considerations. The fact finding in relation to the passage of time, and also to any other potential bars to extradition beyond the passage of time, needs to be resolved in the court of first instance by the Judge who has started the process. Mr Stewart QC for the respondent accordingly accepted that our task should be limited to deciding whether or not the conclusion of the District Judge in relation to the passage of time is flawed. If it is not, the Government's appeal fails. If it is, that issue, together with any other potential bars to extradition, must be remitted to the District Judge. Both parties, accordingly, are in agreement that that is the correct approach to this appeal in this court.
The Government submits that the District Judge's approach to the issue of passage of time was wrong on these grounds:
i) He ought to have held that Mr Spanovic could not rely on the passage of time at all because he had brought it upon himself by fleeing Croatia in November 1998.
ii) He was wrong on the primary facts found to say that Mr Spanovic's whereabouts had been known to the Government since May 1997; further, failure on the part of the Government to find him could not justify a finding that it was unjust or oppressive to extradite him.
iii) He should not have placed significant weight upon the course of Mr Spanovic's asylum claim and application for leave to remain in the UK.
iv) He should not have placed significant weight upon the fact that Mr Spanovic had established himself, and his family, in the UK.
v) He was wrong to find injustice or oppression on the basis of difficulties in seeking out evidence and preserving memories in relation to a trial so long afterwards of an event occurring in the chaos of civil war.
I should take those contentions seriatim.
Ground (i)
The Government relies upon Lord Diplock's well-known words in Kakis v Government of Cyprus [1978] 1 WLR 779:
"Delay in the commencement of conduct of extradition proceedings which is brought about by the accused himself fleeing the country, concealing his whereabouts or evading arrest cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties which he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances it would neither be unjust or oppressive that he should be required to accept them."
Those words are plainly aimed principally at the fugitive from justice; that is to say the man who has fled the country in which he is wanted not for any good reason, but simply to evade trial or implementation of sentence. Mr Perry accepted before us that if a person fled a country because he would not receive a fair trial there, in circumstances where that belief was objectively justified, he would properly be regarded as departing under duress. I would put that concept slightly differently, but to the same effect. Mr Spanovic is, as it seems to me, entitled to demonstrate, if he...
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