QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR. JUSTICE OPENSHAW
| MILAN SPANOVIC
|- v -
|GOVERNMENT OF CROATIA
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr. D. Perry QC & Miss M. Cumberland (instructed by Crown Prosecution Service) for the First Respondent
Mr. B. Watson (instructed by Treasury Solicitors) for the Second Respondent
Hearing dates: 24th & 25th February 2009
Crown Copyright ©
The trial in his absence
His movements after the trial
His immigration status
The first proceedings
'17. I now turn to the issue of passage of time. The defence claim that Mr Spanovic's extradition should be barred because it would be unjust or oppressive to extradite him by reason of passage of time since he is alleged to have committed the extradition offence. The offence is alleged to have occurred on 18th August 1991 and he was convicted in his absence on 17th November 1993. A warrant for his arrest was issued on 20th April 1995. The former state of Yugoslavia was in a state of civil war and in August 1995, the defendant and his family left Croatia and fled to Serbia. He returned to Croatia in January 1996 when the area came under the control of the United Nations Transitional Administration. He remained in Croatia during the time that the Croatian authorities took full control of the sector in January 1998 and in 1997 was issued with a Croatian passport and driver's licence. He left Croatia and came to the United Kingdom in November 1998. He did not seek to hide his whereabouts and indeed, co-operated fully with the authorities in trying to resolve his immigration status. His address in the United Kingdom has been known since 1998. During that time, Croatian passports have been issued to his 2 children by the Croatian Embassy in 2005 and that he had attended the Croatian Embassy on 2 occasions in 2004. I am satisfied that the defendant has not attempted to hide his whereabouts but has been open with the authorities and that the Croatian Government have had knowledge of this whereabouts since at least May 1997.
19. The delay in this case is almost 16 years. I accept that for 5 or 6 of those years the country was in the turmoil of civil war. Even making allowance for that period, there is a very considerable delay since the extradition offence is alleged to have been committed.
20. In considering whether it would now be unjust or oppressive to return the defendant, I have considered the principles laid out in the case of Kakis. In deciding whether it would now be unjust for the defendant to be returned, I have considered whether there would be serious impediments to a fair re-trial. I have in mind that the alleged offences were said to have occurred during a period of civil war in which inevitably evidence will be hard to find or reconstruct. Witnesses memories after such a lengthy period during which radical change took place have faded or be inaccurate. Inevitably, some witnesses may be unavailable or impossible to trace.
21. Mr Spanovic came to this country in 1998 and for the last 8 years has, with his family, made his home here. He fully co-operated with the Immigration Authorities of the Home Office. His appeal seeking asylum in this country was dismissed on the basis of factual inaccuracy. In October 2000, the defendant was granted Exceptional Leave to Enter the United Kingdom for a period of 4 years. In 2000 that was further extended by the grant of Indefinite Leave to Remain. Mr Spanovic had, therefore, a reasonable expectation that he could live freely in this country and, as far as I am aware, he had done so in employment, supporting his family and without committing offences.
22. From the evidence I have received from the Home Office, it is apparent that in 2000, with the full knowledge of the conviction in Croatia, the Immigration authorities in this country considered that returning the defendant to Croatia would infringe his Human Rights. No doubt that finding also reassured the defendant that he would not be returned to Croatia.
23. For these reasons I find that it would now be both unjust and oppressive to extradite the defendant to Croatia.'.
The first appeal
'14. It does seem to me that the District Judge somewhat overstated the case in saying Mr Spanovic's whereabouts had been known to the Government of Coatia since May 1997. It is certainly true that in that month he was issued with a new passport, and shortly after with a driving licence. It is also plain that between May 1997 and leaving Croatia in November 1998 he has travelled several time across the border into Hungary, and perhaps Austria, as the stamps on the passport show, but was not arrested. I do not think that we can here resolve a difference of evidence between the parties as to the division of responsibility for the issue of this passport in 1997 as between the nascent Government of the newly self-declared Croatia on the one hand and the UN supervising administration UNTAES on the other. I doubt very much that it has to be resolved, though that must remain a matter to the District Judge. The evidence would appear to show, whoever strictly issued the passport and other documents that Mr Spanovic's identity, passport number and personal details were on or available to the database(s) of the Government from May 1997 onwards. That may have been in common with an enormous number of people issued with new identity documents as part of a mass process designed to restore identifies to those who on one side or the other, had lost official registration during the war. Whether that is so or not, he was not in fact picked up, though there must have been opportunities when he might have been, such as border crossings. Likewise, the evidence clearly did establish that in the period when he was in the UK from November 1998 onwards Mr Spanovic had some contact with the Croatian Embassy, to which he applied for passports for his children and which he visited on a number of occasions. It was also shown that whilst in the UK he has also had some contact with branches of the Croatian Government in connection with matters such as a land registration, probate, and travel documents for a daughter who had remained in Croatia. It seems not to be in serious dispute that on these occasions he dealt in his true name and provided his settled English address. None of that generates a request for arrest and none was made until 2006 when it seems there was a request by Croatia to Intepol to locate him.
15. All of that, however, falls some way short of showing that those in Croatia who were charged with following up the conviction and attempting to execute the warrant knew where he was before 2006. There is so far as I can see no basis for saying that they did. If the assertion made by Mr Spanovic be true, that someone else was arrested in 1998, having been mistaken for him, (which is something of which the present Government says it has no knowledge either way) then that also would tend to suggest that his whereabouts were not accurately known, at any rate at that time, to those looking for him. At all events, all that this evidence can justify, at best, is the proposition that the relevant Croatian officials or prosecutors could have found him if they had tried harder. Mr Stewart put it in this way, that if sufficiently determined the officer(s) of the Government would have found him .
17. In the present case, I am not sure how far the District Judge has addressed the possible relevance of culpable delay. It is not at all clear that he was addressed on any basis other than that it was enough that some part of the Croatian Government had the means of knowledge of the whereabouts of the respondent: that seems to be the genesis of the way he expressed himself in his judgment. For the reasons which I have explained, I do not think that that is enough. If culpable delay be advanced on behalf of the respondent, the question whether there was any blame must be addressed, and in any event the enquiry must move on to the next and critical step, namely whether as a result it would be unjust or oppressive to extradite the respondent. Accordingly, I conclude that ground (ii) is made out, and that the case must be remitted to the District Judge.'
The second proceedings
The time point: the law
"Unjust' I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trail itself, 'oppressive' as directed to hardship of the accused resulting from changes in his circumstances that have occurred during the period to be taken into consideration; but there if room for overlapping, and between them they would cover all cases where to return him would not be fair. Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by 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 that he may encounter in the conduct of this defence in consequence of delay due to such cause are of his own choice and making. Save in the most exceptional circumstances it would be neither unjust nor oppressive that he should be required to accept them".
"[T]he fact that the requesting government is shown to have been inexcusably dilatory in taking steps to bring the fugitive to justice may serve to establish both the injustice and the oppressiveness of making an order for his return, whereas the issue might be left in some doubt if the only known fact related to the extent of the passage of time, and it has been customary in practice to advert to that factor..."
Lord Justice Laws concluded in La Torre that:
"All the circumstances must be considered in order to judge whether the unjust/oppressive test is met. Culpable delay on the part of the State may certainly colour that judgment and may sometimes be decisive, not least in what is otherwise a marginal case (as Lord Woolf indicated in Osman (No 4). And such delay will often be associated with other factors, such as the possibility of a false sense of security on the extraditee's part. The extraditee cannot take advantage of delay for which he is himself responsible (see Lord Diplock in Kakis at 783). An overall judgment on the merits is required, unshackled by rules with too sharp edges".
Hughes LJ put the matter thus when giving judgment in the instant case
(at page 16):
' a development by the person sought of a sense of security may be one of the relevant effects of delay and one which may lead to a finding that extradition would be oppressive, as for example in Kakis itself, it seems to me that that may well involve examining whether culpable neglect or delay on the part of the requesting state has engendered such sense of security. But I have no doubt that it is not the law that if there is proved to be culpable delay in find the man it is therefore necessarily unjust or oppressive to extradite him, any more than it is necessarily unjust or oppressive to try a domestic English defendant because the police have been (culpably) less than assiduous in catching him. Although culpable delay may be relevant, the principle focus, when it come to considering the passage of time is not on a judgment on the performance of the requesting state's investigation but on the effect that time passing has had.
The time point: the facts
The district judge expressed himself in these terms:
'17. In my reasons given in March 2007, I concluded that he Croatian Government had knowledge of the defendant's whereabouts since at least May 1997. that was based upon the fact that the defendant had disclosed both his permanent and temporary address in applying for a passport in 1997 and that since his arrival in 1998 he did not seek to hide his identity or whereabouts and fully cooperated with the authorities in trying to resolve his immigration status. There was evidence that he had visited the Croatian Embassy on a number of occasions and applied there for passports for his children. The Administrative Court commented that "all of that however falls some way short of showing that those in Croatia who are charged with following up the conviction and attempting to execute the warrant knew where he was before 2006. There is, so far as I can see, no basis for saying that they did". Following that guidance I have looked to see whether there is evidence that the Croatian officials or prosecutors responsible for pursing these proceedings knew of the defendant's whereabouts. I can find no evidence to meet that more stringent criteria and I conclude that there is no evidence of culpable delay on the part of the Requesting State.'
The appellant's personal circumstances
The appellant's psychiatric condition
'The starting point, in my view, must be the proposition that it is part of the trial process that there should be a determination where such an issue arises by the court of the question whether a defendant is fit to be tried
27. In the context of extradition proceedings, it is for the courts of the requesting State to determine those issues. They are questions of fact relevant to the issues of fitness for trial, which are for the courts of the requesting State to determine. Such a determination is not for the executive or for doctors, but are matters appropriate for judicial determination , just as other questions of fact are for the courts of the requesting State '
Hale LJ said this:
'40. The object of extradition is to return a person who is properly accused or has been convicted of an extradition crime in a foreign country to face trial or to serve his sentence there. This include the determination of whether he is fit to be tried, an issue which, under the criminal justice systems of both this country and New York is decided by the courts, and not by members of the executive or the medical profession. The extradition process is only available for return to friendly foreign states with whom this country has entered into either a multi or a bilateral treaty obligation involving mutually agreed and reciprocal commitments .
41. Of course, there must be safeguards to protect the person accused. Some are for the courts to determine, for example whether he has been accused of an extradition crime or, in this case, whether there is a prima facie case against him. But in this case there is no original jurisdiction in this court to determine wider issues of fairness and potential hardship. That power lies in the Secretary of State. The well-established test, as my Lord has said, is whether it would be wrong, unjust or oppressive to return the claimant. It is also accepted that the right to respect for private and family life in Article 8 of the European Convention on Human Rights is engaged in this decision, and so the Secretary of State has to strike a fair balance between the competing interest of that right and the public interest to which I have already referred.
42. It will not generally be unjust to send someone back to face a fair process of determining whether or not he is fit to face trial. I accept that it may be wrong or oppressive to do so if the inevitable result will be that the will be found unfit. But even in those circumstances there may be countervailing considerations. For example, if there is the counterpart of our process in the other country, where a person may be found to have committed an act which would otherwise have been a serious crime, particularly if it were to be a crime of violence involving risk to the public, and if it is it would then be appropriate to detain the person for medical treatment, it could be in the public interest to enable that process to take place. That is not this case, but I would not wish to accept that it is inevitably going to be oppressive to return somebody in such circumstances.'
'65 the question is not whether the appellant is suffering from a psychiatric disorder with or without the added disadvantage of low intelligence; it is whether, by reason of his mental condition it would be unjust or oppressive to extradite him. Spain is a civilised country. The evidence shows that, if extradited, proper examination will be made to ascertain whether the appellant is fit to stand trial. Such examination will also establish whether the appellant is a suicide risk and whether he is in need of psychiatric treatment. So, I would conclude that, even though it may turn out that the appellant is of low intelligence and might be unfit to stand trial, it is not unjust or oppressive to extradite him to Spain'.
"Whilst a judgment has to be made in every case by reference to the particular facts, it is clear from those authorities that in practice a high threshold has to be reached in order to satisfy the court that a requested person's physical or mental condition is such that I would be unjust or oppressive to extradite him".
The facilities in Croatia for the treatment of such conditions
The fairness of the retrial
The unconditional right to a re-trial
Prejudice caused by delay and the passage of time
The speciality point