Vojislav Pesut v Republic of Croatia

Hearing dates: 16 th December 2014

On 5 ^th December 2012 the Republic of Croatia requested the extradition of the Appellant to face prosecution for a war crime, namely the shooting dead of a civilian in Vukovar on 3 ^rd November 1991. Croatia became a member of the European Union on 1 ^st July 2013 and, since then, is a category 1 territory for the purposes of the Extradition Act 2003 ('the Act') but, because it had not achieved that status at the time of the request, the matter had to proceed under Part 2 of the Act. The Secretary of State certified the request on 23 ^rd January 2013. The Appellant was arrested on 5 ^th February 2013. The extradition hearing took place on 10 ^th January 2014. District Judge Snow sent the case to the Secretary of State on 17 ^th January 2014. The Appellant now appeals that decision pursuant to s.103 of the Act.

The Secretary of State ordered the Appellant's extradition on 3 ^rd March 2014. There is a further right of appeal against such a decision, but the Appellant has chosen not to exercise it. Consequently, it is only the District Judge's decision which we have to consider.

On the Appellant's behalf, Mr Cooper advances in effect three grounds of appeal:

i) The true purpose for which Croatia was seeking the Appellant's return was so that the offence of which he was suspected could be investigated. Accordingly, its request was not valid for the purposes of s.70 of the Act and the District Judge should have ordered the Appellant to be discharged.

ii) Because of the lapse of time, it would now be unjust to extradite the Appellant and he should be discharged under s.82 of the Act.

iii) Either because of the lapse of time, or in any event because of his physical or mental condition, it would be oppressive to extradite the Appellant and he should be discharged under s.91 or s.82 of the Act. Mr Cooper argues that oppression would be a consequence of a combination of the Appellant's physical and mental ill health and the poor condition of the Croatian prison estate. He submits that the District Judge should have reached this conclusion on the evidence before him, but, in any event, we should come to this view on the basis of that evidence plus further evidence which he seeks leave to adduce.

The validity of the request

Section 70 of the Act (so far as is material) provides:

"(1) the Secretary of State must … issue a certificate under this section if he receives a valid request for the extradition of a person to a category 2 territory.

…

(3) A request for a person's extradition is valid if –

(a) it contains the statement referred to in subsection (4)…

(4) The statement is one that —

(a) the person is accused in the category 2 territory of the commission of an offence specified in the request, and

(b) the request is made with a view to his arrest and extradition to the category 2 territory for the purpose of being prosecuted for the offence."

This requirement is therefore closely analogous to that which applies under Part 1 for the extradition of a person to a category 1 territory under an accusation European Arrest Warrant – see s.2(3) of the Act. I accept that the principles developed for that purpose are broadly applicable to the requirement under s.70(4). Those principles are usefully summarised in the well known case of Asztaslos v Szekszard City Court Hungary[2010] EWHC 237 (Admin) [2011] WLR 252 especially [38].

In this case the request from the Croatian Ministry of Justice began,

"Extradition request … for the purpose of the handover to judiciary bodies of the Republic of Croatia in order to carry out a criminal prosecution in the proceedings before the County Court in Osijek

…

Due to the fact that the defendant Vojislav Pesut is unreachable to the judiciary bodies of the Republic of Croatia, and that he has been arrested on the territory of the United Kingdom of Great Britain and Northern Ireland, the extradition proves to be justified as that this shall be the only way which shall enable it to conduct criminal proceedings against the defendant mentioned herein, for the criminal offence committed on the territory of the Republic of Croatia."

Mr Cooper submits that these apparently clear statements that the Appellant is wanted for the purpose of a prosecution are rendered equivocal by other parts of the request. Thus, the request records that

"The County State Attorney's office in Vukovar filed an investigation request… from 3 May to the County Court in Vukovar, proposing to conduct an investigation against Vojislav Pesut…for a reasonable suspicion that on 3 November 1991 in Vukovar by violating the rules of international law during the war and occupation, he killed a civilian, whereby he would commit a criminal offence against humanity and international law – the war crime against civilians, which presents an offence described and punishable by Article 120 Para 1 of the Basic Criminal Code of the Republic of Croatia…Pursuant to the investigation request, the County Court in Vukovar rendered the decision on investigation and custody…because of a reasonable suspicion that on 3 November 1991 the defendant Vogislav Pesut committed a crime against humanity and international law the war crime – a war crime against civilians, by having killed Ruza Bustic Stojic with shots from an automatic rifle…"

The request then continues by noting that the County Court in Vukovar issued an order for the arrest of the Appellant on 9 ^th June 2010 and that, on 27 ^th January 2012, the case was transferred to the County Court in Osijek because that was the court with proper jurisdiction over the alleged offence. Copies of the County State Attorney's request and the arrest warrant of the Vukovar Court (endorsed by the Osijek Court) were attached to Croatia's request.

I have emphasised the parts of the request which Mr Cooper submits show that the true purpose of the request is to aid the investigation, not prosecution, of the Appellant.

The District Judge was taken by Mr Jones who then, as now, represented Croatia, to the Divisional Court's decision in Assange v Sweden[2011] EWHC 2849 (Admin) in which it was said that the further questioning of a suspect was not inconsistent with the suspect being an "accused" for the purposes of s.2(3)(a) or wanted for the purposes of a prosecution — see [150] – [151]. The District Judge accepted Mr Jones' submissions that, when looked at in the necessarily cosmopolitan manner, the request was unequivocally for the return of the Appellant for the purposes of a prosecution.

It is fair to say that, while Mr Cooper maintained this ground of appeal, it was not at the forefront of his submissions. It is sufficient to say that I agree with Mr Jones and the District Judge. The request does state that the Appellant is wanted for the purposes of prosecution. It complies with s.70 of the Act. It is a valid request.

Whether extradition would be unjust because of passage of time: s.82

In considering this potential bar to extradition the court is concerned with the risk of prejudice in the conduct of the trial itself – see Kakis v Cyprus [1978] 1 WLR 779.

The offence which gives rise to the request was committed 22 years before the decision of the District Judge and took place now 23 years ago. Mr Cooper submits that the passage of time will inevitably make it difficult for the Appellant to defend himself and to answer detailed questions about what happened that long ago. The problems for the defence will be the more acute because Vukovar has experienced considerable population changes since the events of 1991. The expert evidence of Professor Brad Blitz, Professor of International Politics at Middlesex University, was that Vukovar had lost 30% of its population by 2001 and there had been a further decline since then. Mr Cooper argued that this would inevitably hamper the Appellant in finding witnesses. The Appellant was not a fugitive and therefore the delay in bringing the matter to trial was not his fault. Furthermore, Mr Cooper argues, racial tensions in Croatia remain and make it still harder for the Appellant (who is of Serbian ethnicity) to identify witnesses on his behalf. Even if potential defence witnesses could be identified, they are likely to be reluctant to come forward to assist a Serb. In addition, the deterioration in the Appellant's health leads to him suffering periods of confusion. That, too, would pose a risk of prejudice to his trial.

The District Judge was not persuaded by these arguments and neither am I. So far as they rely on the general passage of time, its impact on memories and the possible loss of witnesses, I consider that they are too vague to establish that the passage of time would make extradition unjust. In this country, allegations of a much greater vintage are tried despite similar objections. Greater specificity is required before the complaint can be made good that delay will make a trial unfair.

However, there is an additional and more fundamental obstacle in the way of this ground of appeal succeeding. Croatia has for many years been a party to the European Convention on Human Rights. Although it was not a...