Zdinjak v Republic of Croatia
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,MR JUSTICE WILKIE |
| Judgment Date | 03 April 2012 |
| Neutral Citation | [2012] EWHC 1554 (Admin) |
| Docket Number | CO/9502/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 April 2012 |
[2012] EWHC 1554 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Laws
Mr Justice Wilkie
CO/9502/2011
Mr R Menon, QC and Ms R Hill (instructed by Russell Cooke) appeared on behalf of the Claimant
Mr J Jones (instructed by Crown Prosecution Service) appeared on behalf of the Defendant
This is an appeal brought pursuant to section 103(1) of the Extradition Act 2003 against the decision of District Judge Coleman made in the City of Westminster Magistrates' Court on 28 September 2011 to send the appellant's case to the Secretary of State under section 87(3) of the Act for her to decide whether the appellant should be extradited to Croatia.
The Secretary of State ordered his extradition on 3 November 2011. The extradition proceedings (which are governed by Part 2 of the 2003 Act) arise out of the appellant's conviction in his absence at the Vukovar County Court in Croatia on 5 February 2009 for an offence of war crime against the civilian population contrary to Article 120(1) of the Basic Criminal Code of the Republic of Croatia. He was sentenced to 6 years' imprisonment. On 17 November 2009, his conviction and sentence were confirmed by the Supreme Court of Croatia again in his absence. The particulars of the offence allege acts done many years before during the civil war in the former Yugoslavia. It was said that between 4 October 1991 and 18 May 1992 the appellant had been involved in expelling non-Serb civilians from the village of Miklusevci in Croatia and inflicted beatings on three named civilians. Apparently the appellant is himself neither Serb nor Croat but Ruthenian. The District Judge, on page 4 of his judgment, observes that in the course of the civil war Ruthenians "…were not necessarily identified with one side or the other…".
On 21 April 2010 the Vukovar County Court issued an arrest warrant for the appellant. On 14 July 2010 the Croatian Ministry of Justice requested his extradition from the United Kingdom. On 1 September 2010 the Secretary of State issued his certificate under section 70 of the 2003 Act confirming that the request was valid. An arrest warrant was issued out of the City of Westminster Magistrates' Court on 21 October 2010. On 16 November the appellant was arrested at the address where he was living in Tooting. He was remanded on conditional bail. A contested extradition hearing took place before District Judge Coleman on 13 May and 8 July 2011. The appellant's extradition was resisted and his discharge sought on five grounds: double jeopardy (section 80 of the 2003 Act), extraneous considerations (section 81), passage of time (section 82), physical or mental conditions (section 91) and abuse of process arising under the common law. In his judgment, given as I have said on 28 September 2011, the District Judge ruled against the appellant on all five grounds. In this statutory appeal the appellant contends that the judge was wrong in relation to all five and, in addition, asserts that he was wrong to hold as he did that if extradited the appellant would be accorded a fair trial in compliance with Article 6 of the European Convention on Human Rights. It is common ground that if he is extradited the appellant, having been convicted and sentenced in his absence, will be entitled within one year of his extradition to a retrial on the merits.
I turn to the issue relating to double jeopardy. Section 80 of the 2003 Act provides:
"A person's extradition to a category 2 territory is barred by reason of the rule against double jeopardy if (and only if) it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction if he were charged with the extradition offence in the part of the United Kingdom where the judge exercises his jurisdiction."
On 29 June 1994, at a military court in Osijek, the appellant was convicted in his absence of an offence of armed rebellion, contrary to Article 2441 of the Croatian Criminal Code. In fact it seems that he had been charged with genocide. The Croatian authorities have provided a copy of the judgment which was accordingly available to the District Judge as it is before us. The document is somewhat discursive. Mr Menon QC for the appellant has included in his skeleton argument a succinct and as far as I can see accurate summary which, subject to some minor adaptations, is as follows. The offending occurred between 27 September 1991 and 18 May 1992 in the village of Miklusevci in the municipality of Vukovar. It was carried out with the intention of overthrowing the state and the establishment of the Republic of Croatia, separating the area from the territory of Croatia and annexing it to Greater Serbia. The defendants were involved in artillery attacks, killing and injuring a number of people and causing substantial destruction of property. After they had taken control of the area they organised its territorial defence. Many non-Serbs were ill-treated, threatened, beaten and forcibly expelled. Some were tortured and some killed. Their properties were seized and occupied. Their personal belongings were looted and robbed. The primary objective of the occupying authorities was the ethnic cleansing of Miklusevci.
The appellant, having been convicted in his absence, was sentenced to 8 years' imprisonment. In 1996 a general Amnesty Act was passed in Croatia. On 13 October 1997, pursuant as I understand it to that Act, the Osijek County Court ordered a suspension of the execution of the sentence of imprisonment for some but not all of the 1994 defendants. They did not include the appellant. In a letter to the Home Office of 11 May 2011 the Croatian Ministry of Justice say of the October 1997 decision of the Osijek court that it:
"…has not the relevance for the charges against [the appellant] due to the fact that according to the Article 3 Paragraph 1 of the General Amnesty Act the amnesty is excluded for the perpetrators of the most serious violations of humanitarian law having the characters of war crimes, specifically the criminal act of war crimes against the civilian under Article 120 of the Basic Criminal Code of the Republic of Croatia."
This letter was, as Mr Menon is at pains to point out, the first acknowledgement by the Croatian authorities of the appellant's 1994 conviction. However the letter also states that on 23 November 1998 the County Court in Osijek in fact proceeded to grant a suspension of the execution of his sentence to the appellant and the other defendants not covered by the order of 13 October 1997. A translation of the court order of 23 November 1998 is with the papers. In fact the appellant had left Croatia for the United Kingdom over five months earlier in June 1998. A further letter from the Croatian Ministry of Justice, dated 6 July 2011, asserts that the General Amnesty Act in fact applies to the appellant's 1994 sentence because the offence for which he was then dealt with, armed rebellion, contrary as I have said to Article 2441 of the Code, was covered by that Act. The letter of 6 July 2011 also sought to draw out differences of fact and law between the Article 244 offence and the Article 120 offence of which the appellant was convicted in 2009. I shall deal with those matters in addressing the double jeopardy issue directly.
The appellant's essential case on double jeopardy is that the 2009 conviction, which has of course led to these extradition proceedings, was founded on essentially the same facts as the conviction in 1994 despite this being alleged, pursuant to Article 244 in the one case and Article 120 in the other. As with the 1994 case, we have a record of the 2009 judgment. Again, I may deploy counsel's summary. The allegation was that between 4 October 1991 and 18 May 1992 the appellant and 11 others, 9 of whom were among his co-accused in 1994, were guilty of war crimes against civilians in Miklusevci. They occupied the village, expelled at least 92 non-Serbs, and engaged in intimidation, inhumane treatment, assaults, killings, looting and robbery. The specific allegations against the appellant were that he was involved in the expulsion of non-Serbs from Miklusevci, inflicted serious bodily harm upon three named individuals, and robbed one of them of his Renault 5 motorcar.
The rule against double jeopardy includes, but is not limited to, those cases where a plea in bar of autrefois convict or autrefois acquit may be raised by a defendant as of right. The plea in bar is strictly only available where the later alleged offence is the same as the earlier both in fact and law (see Connolly v Director of Public Prosecutions [1964] AC 1254 per Lord Devlin, 1349 to 1340). But the law also recognises a broader discretionary jurisdiction to stop a prosecution based on substantially the same facts as were relied on against the defendant in an earlier prosecution (see Connolly per Lord Pearce at 1362 and 1364). Such a second prosecution will generally be an abuse of the process, but may be permissible in special circumstances where it will not be so characterised (see Connolly per Lord Devlin at 1360). It is clear from Fofana [2006] EWHC (Admin) 744 that both the narrow plea in bar and the wider jurisdiction to stop a second prosecution as abusive are embraced within the double jeopardy rule as applied by section 80 to extradition proceedings under Part 2 of the 2003 Act (see per Lord Justice Auld at paragraphs 18 and 22).
This is plainly not a case where the appellant...
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