England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(DIVISIONAL COURT)

		Royal Courts of Justice Strand, London, WC2A 2LL
		3 December 2004

Lord Justice Laws:

INTRODUCTORY

1. This is an application for the issue of a writ of habeas corpus ad subjiciendum directed to the order of the Bow Street Magistrates' Court made on 14 October 2003 pursuant to s.9(8) of the Extradition Act 1989 ("the 1989 Act"). By that order the court committed the applicant to await the decision of the Secretary of State as to whether he should be extradited to Croatia pursuant to a request to that effect made by the Croatian authorities.
2. The applicant is a Croatian Serb. His Serbian ethnicity is, as I shall show, central to the case. He is alleged to have committed crimes of murder and arson at Ervenik in western Croatia. He was convicted of these offences in his absence by the District Court at Sibenik on 23 April 1993 and his appeal against conviction was dismissed by the Supreme Court of Croatia on 19 August 1993. Ervenik and Sibenik both lie not many kilometres from Knin, the capital of the Krajina region of Croatia.
3. The applicant came to the United Kingdom in 1995 on a forged passport. He was stopped by the immigration authorities on his return from a visit to Belgrade in 1998. He made a claim for asylum which on the information before us has not yet been resolved. Meantime he has remained in the United Kingdom. He was arrested on 6 November 2002 and has been in custody since that date. The Secretary of State's authority to the Magistrate to undertake the appropriate proceedings pursuant to Croatia's request to extradite the applicant was given under s.7 of the 1989 Act on 9 January 2003, and as I have said the Magistrate's order of committal was made on 14 October 2003.
4. Before turning to the facts in greater detail it is convenient to set out the two provisions of the 1989 Act on which the application to this court is based:

"6(1) A person shall not be returned under Part III of this Act, or committed or kept in custody for the purposes of return, if it appears to an appropriate authority –

…

(d) that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions."

"11(3) Without prejudice to any jurisdiction of the High Court apart from this section, the court shall order the applicant's discharge if it appears to the court in relation to the offence, or each of the offences, in respect of which the applicant's return is sought, that –

…

(b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large, as the case may be…

…

it would, having regard to all the circumstances, be unjust or oppressive to return him."

"Appropriate authority" in s.6(1) includes this court on an application for habeas corpus (see s.6(9)(c)).

5. In Fernandez v Government of Singapore^[1] their Lordships' House had to consider the predecessor to s.6(1)(d), namely s.4(1)(c) of the Fugitive Offenders Act 1967. The language was the same. Lord Diplock (with whom their other Lordships agreed) said this^[2]:

"My Lords, bearing in mind the relative gravity of the consequences of the court's expectation being falsified either in one way or in the other, I do not think that the test of the applicability of paragraph (c) is that the court must be satisfied that it is more likely than not that the fugitive will be detained or restricted if he is returned. A lesser degree of likelihood is, in my view, sufficient; and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court. 'A reasonable chance', 'substantial grounds for thinking', 'a serious possibility' – I see no significant difference between these various ways of describing the degree of likelihood of the detention or restriction of the fugitive on his return which justifies the court in giving effect to the provisions of section 4(1)(c)."

There is, I think, no contention but that this test applies equally to the application of s.11(3)(b) of the 1989 Act. It is, as it seems to me, the same test as was accepted by the House of Lords in Sivakumaran^[3] for the purpose of ascertaining whether an asylum claimant's fear of persecution (if he were returned to his country of origin) is well-founded or not.

6. In order to understand the nature of the applicant's claims under ss.6(1)(d) and 11(3)(c) of the 1989 Act it is necessary first to sketch in barest outline something of the conflicts in Croatia's recent bitter history, and then to describe the evolving condition of the judicial process in Croatia as it relates in particular to the treatment of Serbs as defendants (sometimes as complainants) in criminal proceedings where the accusations concerned, usually described as war crimes, were generated in those very conflicts. However before I do so I should make it plain that, while I have said that the applicant's Serbian ethnicity is central to the case, Mr Knowles who appears for him does not say that his client is entitled to relief under the 1989 Act on account only of the fact that he is a Serb who will face trial in a Croatian court on charges connected with the conflict. His case is specific to the applicant's circumstances, as I shall explain. Since what follows by way of background is necessarily cast in general terms, it is important to have this in mind.

BACKGROUND: GENERAL

7. Croatia's declaration of independence on 25 June 1991 was followed by two linked and simultaneous wars: between Croatia and the Yugoslav army, whose aim was to preserve the Yugoslav state, and between the Croat nationalist government in Zagreb and Croatian Serbs occupying what was proclaimed to be the Serbian Republic of Krajina. The first war ended in 1992. It was associated with the expulsion of most of the ethnic Croat population from Krajina, and the settlement in Krajina of a large number of Serbs expelled from Croatia proper. The second war ended in 1995. This was associated with a second major refugee flow, effected by two rapid military operations, Flash and Storm, launched in May and August 1995 by the Croatian government. Many thousands of Serbs fled and the government reclaimed some three-quarters of the territory under Serb control. The last pocket of Croatia in the hands of Serbian forces, Eastern Slavonia, was transferred to the United Nations following the Erdut Peace Agreement of November 1995 and was formally placed under Croatian jurisdiction on 15 January 1998.
8. It is notorious that during the turmoils of the wars and the bitter ebb and flow of refugees there were many atrocities, committed by Croat upon Serb and Serb upon Croat. Until 1999 the government of Croatia in Zagreb was in the hands of the victorious nationalists, in the shape of the HDZ party under the leadership of President Franjo Tudjman. This regime prevented the return of Serbian refugees; indeed, in 1991 it had enacted a law which denied returning refugees rights of citizenship in the new State. Tudjman was indicted (but never tried) by the International Criminal Tribunal for the Former Yugoslavia ("ICTY"). There is no doubt that his government was ruthlessly anti-Serb and introduced policies and laws to the grave detriment of the remaining Serbian population; although it is right to say that in 1996, no doubt in response to international pressure, it enacted a Law on General Amnesty granting amnesties to those who had taken part in the armed conflicts. The perpetrators of "flagrant violations of humanitarian law having the character of war crimes" were however excluded^[4]. The Tudjman government, moreover, has been repeatedly criticised for instigating prosecutions, under the guise of war crimes accusations, of persons who should have had the benefit of the amnesty.
9. Tudjman died in December 1999. Presidential and parliamentary elections followed in January 2000, and Stjepan Mesic became President of the Republic in February, heading a coalition government. At this event, according to the applicant's expert Dr Brad Blitz of Roehampton University, Croatia "appeared to be turning the corner". Mesic's election is also described in the European Commission's Opinion on Croatia's application to join the European Union^[5] ("the EC Opinion") as marking "a turning point in relations between the EU and Croatia". There was a commitment by the government to address the issue of the return and integration of Serb citizens. Constitutional reforms were introduced between 2001 and 2003, including laws which on their face would lift or at least ameliorate some of the gross discriminatory practices of the Tudjman era not least as regards the ownership and possession of property. Croatia's application to join the EU, which had been made in February 2003, no doubt lent impetus to these movements.
10. Parliamentary elections held on 23 November 2003 returned HDZ – Tudjman's party – to power in a coalition government under Prime Minister Ivo Sanader. The EC Opinion states^[6]:

"[HDZ], which had been in opposition in the previous legislature (2000 – 2003) has showed [sic] a strong determination to transform itself into a democratic party with a pro-European vocation. However some statements made in the recent past, when HDZ was in opposition, are still a matter of concern for the Commission. It still need [sic] to be demonstrated whether all elected members have really distanced themselves from radical nationalism."

BACKGROUND: INDICTMENTS AND TRIALS

11. I have already referred to international criticism of the Tudjman government for its prosecution, under the guise of war crimes accusations, of persons who should have had the benefit of the Law on General Amnesty. More generally, there have been the gravest reservations (to put it mildly) as to the quality of justice meted out to Serb defendants during the Tudjman era. It is necessary to consider how matters have developed since. The EC Opinion states^[7]:

"In the second half of the 1990s, Croatia's judicial system lacked independence and efficiency, and had staff shortages. While considerable improvements have been made and the independence of the judiciary has been established, major challenges remain to be addressed. The main problems are the widespread inefficiency of the judicial system and the amount of time needed to hand down and enforce judgments as well as weaknesses related to the selection and training of judges. Moreover, too many issues are brought before courts that could in principle be decided by other means. An additional problem is that the courts and parts of the state administration do not always respect or execute in a timely way the decisions of higher courts. Citizens' rights are therefore not yet fully protected by the judiciary in accordance with the provisions of the Constitution."

12. As I have said, the applicant was convicted in his absence on 23 April 1993. Trials in absentia have been a particular problem. Many such trials have been held, mostly against Serb defendants, and convictions obtained on flimsy evidence. The practice continued after Tudjman's death. It is clear however^[8] that a defendant convicted in his absence is entitled to a re-trial once he is subject to the jurisdiction, and such re-trials have readily been granted. In this present case there is no contest but that the applicant will stand his trial afresh if he is extradited; and it is to the prospect of such a re-trial that his claims under ss.6(1)(d) and 11(3)(b) of the 1989 Act are directed. In fact the OSCE appear to regard the right of re-trial, in context, in a sense as being a mixed blessing. Their overall concerns about trials in absentia are expressed as follows^[9]:

"Mission concerns with regard to in absentia convictions are fourfold. First, the continuation of this practice creates an additional burden on the courts as defendants convicted in absentia regularly make use of their guaranteed right for re-trial once accessible to Croatian justice.

Second, while it is a valid argument that victims wish to see alleged perpetrators tried, the right of the defendant to be present at trial outweighs this concern in particular in war crime procedures…

Third, a significant number of these convictions do not stand once the accused appears for re-trial. During 2002 and 2003 six proceedings where defendants had previously been convicted in absentia resulted in the total exoneration of 8 defendants following the re-trial. This suggests that the quality of in absentia procedures resulting in convictions is questionable.

Fourth, in individual cases there is a potential danger that trials are conducted for political reasons instead of legal reasons. As stated by the most senior Croatian Professor on Criminal Procedure in the Law Faculty of Zagreb and Member of Parliament in Novi List on 7 February 2004, several of the in absentia trials were conducted in order to discourage Serbs from returning to Croatia."

13. In May 2002 a new Chief State Prosecutor assumed office. He acknowledged that a significant number of past prosecutions were based on insufficient evidence. On 11 July 2002 he issued these instructions to County State Prosecutors^[10]:

"[I]t is a fact that at the time of the Homeland War and also afterwards, county state prosecutors' offices were submitting investigation requests indiscriminately in a number of cases, and based on insufficiently verified criminal charges, they were issuing dubious indictments for war crimes against a significant number of people on the basis of investigations conducted in an inferior manner, while those indictments did not concretize the illegal activity on the part of particular defendants containing elements of war crimes."

The footnote to the OSCE June report continues:

"In the 2003 annual report the Chief State Prosecutor indicated that as a result of those instructions several indictments have been reviewed, which in turn resulted in abandoning the charges by the prosecution. Furthermore, the Chief State Prosecutor reiterated that several of the charges brought in the early to mid 1990s mainly against Serbs were of poor quality but nevertheless resulted in indictments. The Chief State Prosecutor also stated that those indictments frequently resulted in in absentia convictions of Serbs."

14. This initiative is reflected also in the findings of Human Rights Watch:

"Human Rights Watch learned in April 2004 that the Croatian State Prosecutor is committed personally to reviewing outstanding war crime indictments for which no credible evidence against the suspect exists. This would be a major improvement in this sensitive area. However, a note of caution is warranted since a statewide review of the outstanding war crime indictments has already been ongoing for two years, while abuses of prosecutorial authority have continued unabated."^[11]

15. Another development has been the relation between the Croatian authorities and ICTY. The EC opinion shows^[12] that as long ago as April 1996 Croatia adopted a law on co-operation with ICTY. By the date of the EC Opinion ICTY had indicted five Croatian citizens for criminal offences committed in the Republic of Croatia (and 27 from Bosnia-Herzegovina for crimes committed in the territory of that State). Three have voluntarily surrendered to ICTY. In one case the Croatian authorities took an objection to the indictment. The fifth is General Gotovina, indicted in June 2001. He remains at large. In August 2003 the UN Security Council called upon Croatia to intensify its co-operation with ICTY, and in particular to surrender General Gotovina.
16. There is also the prospect of cases being transferred from ICTY for trial in the domestic courts. The OSCE June report states^[13]:

"In an initial effort at reform, the Parliament adopted legislation in late 2003 calling for the establishment of 4 courts that have extra-territorial jurisdiction to investigate and try war crime cases. As of June 2004, no cases have been referred to these courts under the new law which authorizes the President of the Supreme Court to determine which cases will be handled by these courts and at what stage of the proceedings. There are several indicators that ICTY transferred cases will be conducted in 1 of these 4 courts. Judges and prosecutors at 2 of the 4 courts have been given training through a joint initiative of the Ministry of Justice and the ICTY, which started in May 2004. Such training and other reform initiatives should, however, be extended to all judges and prosecutors assigned to county courts trying war crime cases so as to avoid the creation of a two-tier system of justice for war crime adjudication in Croatia."

It is to be noted that a "Centre for the Professional Training of Judges and other Judicial Officials", created in 1999, became partly operational in 2003 although (as at April 2004) it had no more than skeletal resources; ad hoc seminars had been conducted with international assistance^[14]. As regards ICTY, the EC Opinion has this^[15]:

"… [C]o-operation with ICTY has improved significantly in the past months. In April 2004 the Prosecutor stated that Croatia is now co-operating fully with ICTY. However Croatia needs to take all necessary steps to ensure that the remaining indictee is located and returned to ICTY.

The authorities appear determined to improve conditions for prosecution of war criminals in domestic courts…

In principle, Croatia is prepared to co-operate closely with ICTY on domestic war crimes trials, including by accepting as legally relevant all the evidence and other supporting material from ICTY. Evidence obtained by ICTY will be admissible without review in domestic trials."

17. It is convenient at this stage to refer to a particular case relied on by Mr Qureshi for the respondent government, not least because it is I think the most recent piece of factual material placed before us. This is the Lora case. The only report we have is a Web page from a body called "Institute for War and Peace Reporting" ("IWPR") which is based in London. The report is written in a journalistic style. The case involved eight former military policemen or prison officers, who were accused of torturing prisoners at the Lora military prison in Split between March and September 1992, causing the death of two of them. The defendants were acquitted at first instance and set at liberty. The trial judge was criticised in Croatia and elsewhere. Apparently (among other things) he "shook hands with the indicted men before each hearing, displaying apparent sympathy for them". On 19 August 2004, on the prosecutor's appeal, the first instance decision was annulled and a re-trial ordered. The Supreme Court held that the facts had been established "incorrectly and incompletely". The author of the IWPR piece reports expressions of support and relief on the part of the Croatian government at this decision. He also records intemperate and recalcitrant remarks apparently made by the trial judge on hearing of the Supreme Court ruling.
18. Lora may well be an important case in Croatia's drive towards improved standards of practice and principle in the administration of criminal justice where there is a potent background of ethnic conflict. It is, however, very far from being an isolated instance of action by the Supreme Court to overturn a first instance decision which had been arrived to the detriment of a Serbian defendant or other party (in Lora, of course, the Serbs were complainants). It is clear from the OSCE June report^[16] and other materials that there has been a high rate of successful appeals, and although prosecution as well as defence appeals have been allowed, there are many recorded instances at least from 2002 onwards in which Serb defendants have had their convictions overturned. The OSCE June report states^[17]:

"The Supreme Court reversed a very high percentage of Serb convictions (95% in 2002 and 50% in 2003) and upon re-trial, a majority of Serbs previously convicted were exonerated."

19. There have been other positive developments. As the OSCE June report shows^[18], prosecutors have dropped charges against Serbs for want of evidence in a large proportion of cases, certainly in 2003. At the beginning of 2004 a witness protection law was adopted, which provides for four types of protection: "corporal and technical protection, transfer of the person, measures for hiding the identity and ownership, change of identity"^[19]. And Croatia has ratified bilateral agreements with Bosnia-Herzegovina and with Serbia and Montenegro for the purpose of obtaining evidence in one jurisdiction for use in proceedings in the other, and also to allow for trial in one State for acts committed in the other. The OSCE June report tells us^[20]:

"While this procedure functioned satisfactorily in some trials, requests remained unanswered in others. One request to conduct proceedings for crimes committed in another State by a Croatian citizen was submitted by the authorities in Bosnia and Herzegovina and granted by the Croatian authorities, resulting in the conviction of Fikret Abdic…"

20. Further material before us containing information as to developments in Croatia relating to war crimes trials is to be found in the US State Department report^[21]. Dealing (as I understand it) with the year 2003, the report says this^[22]:

"Judges are constitutionally prohibited from being members of political parties. Over the past 3 years, the judiciary was subject to far less political influence than previously, although there continued to be reports of political influence at the local level.

Judges appointed under the government of former President Franjo Tudjman, who at times made decisions in a nontransparent manner seemingly at odds with the evidence or the law, were a problem. For example, in September, Split County Court judge Slavko Lozina sentenced a former special police commander to 4 years and 11 months for the 1996 murder of a young Croatian of Serbian ethnicity. The judge failed to give a formal explanation of what all observers considered a lenient sentence. Media reports alleged that the sentence was structured in a way so that the defendant could avoid custody during the appeal process. No disciplinary action was taken against the judge in the case, although the Ministry of Justice and Supreme Court both launched inquiries into his behaviour during the trial."

I cite this latter paragraph in part because it is not without interest that the trial judge in the case referred to appears to be the very judge who presided at first instance in the Lora proceedings.

21. Mr Knowles relies on all those documents which he says demonstrate continuing discrimination against Serbs in the conduct of war crime trials. He points to materials showing considerable discrepancy between the numbers of Serbs and Croats facing prosecution, and differential rates of conviction and acquittal, favouring the Croats, between the two groups. I will cite one more passage to which he particularly drew attention (in his letter to the court commenting upon the EC Opinion), although it travels over territory I have already described. It comes from the EC Opinion^[23]:

"Statistical data suggest that a single standard of criminal responsibility is not yet applied equally to all those who face war crime charges before Croatian courts. Defendants of Serb ethnicity are disadvantaged at various stages of judicial proceedings compared to Croats. Thus, Serbs were more likely to be convicted than Croats in 2003, although the differential decreased from 2002. While the number of Serbs prosecuted in 2003 increased as compared to that in 2002, the number of Croats decreased substantially. The Supreme Court reversed a considerable number of convictions of Serbs on appeal, ordering new trials on the basis of errors by the trial court. In addition, local prosecutors and courts continued to conduct in absentia proceedings (27 out of 32 Serbs convicted of war crimes in 2003 were convicted in absentia). Such proceedings are used almost exclusively against Serbs, and many of these are collective indictments. This practice is problematic because it is not consistent with the principle of individual guilt. Continuation of this practice also creates an additional burden on the courts as defendants convicted in absentia regularly make use of their right for re-trial. Some improvements have been achieved in recent years, but further reform is necessary in order to reach the even-handed administration of justice in war crime cases."

22. Mr Qureshi for his part places considerable emphasis on the outcome of the Lora case. He would also have us attach particular importance to the conclusions of the EC Opinion, which was commissioned under the procedure provided for by Article 49 of the Treaty on European Union to advise the Council upon Croatia's application to join the EU. In carrying out its task the Commission (as it was enjoined to do) took into account the criteria set by the Copenhagen European Council of June 1993. They included a requirement "that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities". The EC Opinion concluded^[24]:

"Croatia is a functioning democracy, with stable institutions guaranteeing the rule of law. There are no major problems regarding the respect of fundamental rights. In April 2004, the ICTY Prosecutor stated that Croatia is now co-operating fully with ICTY. Croatia needs to maintain full co-operation and take all necessary steps to ensure that the remaining indictee is located and transferred to ICTY. Croatia needs to make additional efforts in the field of minority rights, refugee returns, judiciary reforms, regional co-operation and the fight against corruption. On this basis, the Commission confirms that Croatia meets the political criteria set by the Copenhagen European Council in 1993..."

And (after dealing with other matters) the Commission recommended that negotiations for accession to the EU be opened with Croatia.

23. It seems to me to be clear that the quality of criminal justice in Croatia, in relation to what are said to be war crime trials and in that context the differential treatment of Serbs and Croats before the courts, has been the subject of steady amelioration since the time of the Tudjman government. The initiative of the Chief State Prosecutor to review past and outstanding cases; the system's increased co-operation with ICTY; the improving prospect of domestic trials of cases transferred from ICTY; judicial training initiatives; firm action by the Supreme Court to overturn unsustainable decisions at first instance, not least where Serbs were the convicts; witness protection measures; bilateral agreements for cross-border co-operation as regards the obtaining of evidence and the place of trial – all these are testimony to an increasing fulfilment of international standards of objectivity and even-handedness in the administration of justice where the context, war crime trials against Croatia's riven background, is an acutely difficult one. That this progress has been real and substantial is amply witnessed, in my judgment, by the recommendation of the Commission that negotiations for accession to the EU be opened with Croatia. At the same time it is clear that there is much yet to be done. In absentia trials, overwhelmingly of Serb defendants, continue. Defective and unjustified convictions at first instance still happen, and there remain significant differentials between Serbs and Croats both as regards conviction rates and numbers prosecuted.
24. Dr Brad Blitz, as I have said, is the expert instructed for the appellant. Since 1993 he has written extensively on issues relating to the former Yugoslavia. I am sure his specialist knowledge is to be respected. But his principal report, which I have read and re-read, does less than justice to the balance, apparent to me on the objective evidence, between what has been achieved in Croatia as regards the judicial process and what remains to be done. The scales of this balance are of great importance; but as I have said Mr Knowles for the applicant does not submit that his client is entitled to relief under the 1989 Act on account only of the fact that he is a Serb who will face trial in a Croatian court on charges connected with the conflict. His case is specific to the applicant's circumstances. It is time to explain in more detail the particular facts and allegations relating to the charges against him.

THE FACTS OF THE CASE

25. The applicant's prosecution arose from events which took place on 18 January 1992 at Ervenik. That night a number of Serbs, acting as part of a "militia", descended on the village. There had been a recent history of violence and intimidation motivated, it was said, by the Serbs' resolve to drive Croats out of the area. On the night of 18 January they split into three groups. One group went to the house of Drago Cengic. There they murdered Drago, his wife Nevenka, and his sons Goran and Slobodan. They burned down the house.
26. The only evidence against the applicant was that of Drago's father, Josip Cengic. It is described in the judgment of the District Court, of which an official or certified translation is before us. He said he hid behind a wall with his wife at about 7-30 pm, when he heard the sound of an approaching car. He saw his son Drago's house on fire. He saw the applicant and another, and from what he heard them say he concluded that they had burned down his son's house. He did not see the killings nor did he claim to have done so. The next morning he found the bodies.
27. There were altogether 30 defendants. Eight, including the applicant, were charged with the murders. The remaining 22 were charged with terrorist acts. All were represented by the same lawyer. All were convicted. The eight were sentenced each to fifteen years imprisonment, the others to ten years. Although all were tried in absentia, they appealed to the Supreme Court with the assistance of a court-appointed lawyer. The appeals were dismissed, as I have indicated, on 19 August 1993. The convictions of the eight charged with murder were upheld on the basis that the crime was one of joint enterprise.
28. The applicant has a positive case of alibi, which he would no doubt wish to put forward were he to face a re-trial and be called on to make his defence. He says that at the time of the killings he was at the house of a man called Bosko Kovacevic, the brother of a Serb who according to the applicant was himself murdered, along with two others, by Croats very shortly beforehand. Bosko Kovacevic was to stand his trial (in absentia) as a co-defendant with the applicant for the murder of Drago Cengic and his family. In the evening of 18 January the applicant went to Bosko's house, taking provisions for the brother's wake. Drago Cengic's house was not far distant; from Bosko's garden he saw it burning. He remained at Bosko's house until about midnight. A considerable number of other people were there. Mr Knowles made it clear that his instructions were that the applicant could not remember the name of any of them other than Bosko himself.

THE NATURE OF THE APPLICANT'S CASE UNDER s.6(1)(d) OF THE 1989 ACT

29. The case as originally advanced was put under five headings, which as I understand it are said to have cumulative effect. They are summarised by Dr Blitz in paragraph 51 of his principal report of 24 September 2004:

(1) The applicant's ethnic identity as a Serb puts him at risk of discrimination.

(2) He is accused of killing Croats during the war.

(3) The likely venue for his re-trial is in an area – the area of Knin, former centre of the Serb-held region of Krajina – which is particularly affected by ethno-national tensions.

(4) So far as he would propose call alibi witnesses, there would be a high risk of witness intimidation and a corresponding chance that he would be deprived of the benefit of such testimony being available.

(5) Having already been convicted at first instance in his absence, and having had his appeal against that conviction dismissed, he would face prejudice in the minds of the local population who would assume that his guilt had already been proved.

In the course of the hearing Mr Knowles canvassed a further point which was not, certainly not expressly, pre-figured in his skeleton argument; though no doubt it falls to be considered as an application of heading (1) above. It may be put thus:

(6) Aside from any question of prejudice to the applicant at his trial, he would be "detained or restricted in his personal liberty" within s.6(1)(d) by reason of his Serbian ethnicity because a Croat would not (or probably would not) be put on trial at all to face a prosecution where the evidence was as weak as that against the applicant

Heading (6) raises a distinct issue as to the construction of s.6(1)(d) of the 1989 Act to which I will come in due course.

30. The fact that these points are put cumulatively is in my judgment of some considerable importance for our consideration of the issues arising under s.6(1)(d). I have already said that Mr Knowles does not claim that his client is entitled to relief simply because he is a Serb who will face trial in a Croatian court on charges connected with the conflict (heading (1) above, leaving aside for the moment heading (6)). I am sure he would not seek to modify that position on account only of the fact that the charges faced by the applicant include offences of homicide of which Croats were the victims (heading (2)). Thus his case does not entail, as otherwise logically it might, the proposition that Serbs sought to be extradited to Croatia to face trial for crimes of homicide said to have been committed during the conflicts of 1991 – 1995 should as a class in effect enjoy under s.6(1)(d) a general immunity, at least for the time being, against such action being taken. I think Mr Knowles was quite right to disavow such an over-arching position. It is of course possible to envisage circumstances in which so sweeping a conclusion might be justified; and the standard of proof applicable in s.6(1)(d) cases, as Fernandez shows, requires only that "a reasonable chance", "substantial grounds for thinking", or "a serious possibility" of prejudice at trial (or punishment, etc) be demonstrated. But it must be elementary that the facts of the individual case will be at the forefront of judicial scrutiny; and to make a case which depends, not at all on the individual facts, but on the class (ethnic or otherwise) to which the applicant belongs would in my judgment require very strong material, notwithstanding the Fernandez test. The signal progress made in Croatia towards a justice system which meets international standards, attested by the account I have sought to give and not in my view sufficiently acknowledged by Dr Blitz in light of the objective evidence, well justifies Mr Knowles' concentration on points specific to his client's case.
31. In these circumstances, while it has been important to review the background as I have done (it is the very genesis of the case), our decision of the issue under s.6(1)(d) must in my judgment focus in particular on heading (4) above. Mr Knowles effectively asserts as much himself^[25].
32. There remain, of course, headings (3), (5) and (6). I would discount heading (5) – prejudice in the minds of the local population arising from the applicant's earlier trial in absentia and unsuccessful appeal. Even if such prejudice were shown, that would not of itself begin to demonstrate (to the Fernandez standard) that the applicant would be prejudiced at his trial without at the very least some specific evidence, beyond what is available here, as to the distinct effect of such local feeling on the local judiciary. And I have already cited the view expressed in the OSCE June report^[26]:

"[A] significant number of these convictions [viz. after trial in absentia] do not stand once the accused appears for re-trial. During 2002 and 2003 six proceedings where defendants had previously been convicted in absentia resulted in the total exoneration of 8 defendants following the re-trial."

33. Heading (3) calls up an important dimension of the background to the case. Knin is the former centre of the Serb-held area of Krajina, "the Serbian Republic of Krajina". The applicant's original trial in absentia took place in this area, as I have said at Sibenik, and I understand it to be common ground that that is where he would be re-tried. There is no reason to doubt these observations of Dr Blitz^[27]:

"Knin… is now a depressed town with many social and political handicaps. The areas around Knin have been at the centre of intense inter-ethnic conflicts. For example, Gospic, the capital of Lika-Senj county to the north of Knin has been the scene of multiple conflicts which came to a head first in 1991 when 120 elderly Serbs were killed by Croatian forces. Since 1991, Gospic has been at the centre of several mass killings as well as revenge attacks committed after the war. Gospic is tied to six cases that have embarrassed the Croatian government since they involved high level Croatian military officers, generals and commanders who were accused of killing civilians and engaging in a deliberate policy of 'forcible and permanent removal of the Serb population from the Krajina region'…"

One of the officers referred to was General Gotovina.

34. It is plain that the conflict and its after-effects have been especially acute in the Krajina region. I would not for one moment seek to underplay the misery and bitterness of what has happened there. Nor have I forgotten these comments made by Dr Blitz^[28]:

"For Serbs attempting to return to 'black spot' areas around Knin and in the hinterland, the situation is even more precarious. Previous war crimes cases and investigations by the ICTY have stirred up nationalist passions and have resulted in the murders of witnesses and intimidation against minorities. There has also been extensive collusion between the police and nationalist forces. For its part, the local media in the former Krajina region and further south in Dalmatia have overwhelmingly embraced the nationalist cause and have generated hate-speech against the Serbian minority which has only increased tensions."

35. But these circumstances, laden as they are with many past atrocities and injustices, cannot in my judgment of themselves make the case under s.6(1)(d), not least when set against the signs of improvement in the conduct of prosecutions which I have surveyed, and which cannot have failed altogether to touch the Krajina region: at any rate it is not shown that they have so failed.. The conditions described by Dr Blitz, like the material collected to support headings (1) and (2), are not at all specific to the applicant's circumstances or to the likely outcome of his extradition. That is no criticism; no doubt there is no such specific material. But I am not able to conclude without more that s.6(1)(d) is met.
36. I should notice that Mr Thanki, the applicant's solicitor, sought to bolster his client's case by giving evidence that the Croatian Embassy in London had refused his request for "the courtesy of a police escort" on the occasion of a visit which he proposed to make to Ervenik. The suggestion, I think, was that this fact was somehow relevant to his assertion that it was not, or might not be, safe for him to visit the region. I cannot see to what else it might be directed. In my judgment it has no such relevance.
37. I turn to heading (6). The argument is that the applicant might be "detained or restricted in his personal liberty by reason of his race" within the meaning of s.6(1)(d) because, if returned, he will have to face criminal proceedings with which on notionally identical facts a Croat would not be vexed at all; and accordingly he will be subjected to the ancillary processes of detention pending trial or bail subject to conditions. The submission involves the proposition that the words "detained or restricted in his personal liberty" do not merely refer to the case where a returnee is liable to be locked up because of his race, but are apt also to bring within the purview of s.6(1)(d) the very decision to put the applicant on trial at all.
38. There is, I think, no authority directly in point. Plainly a decision to put an applicant on trial upon demonstrably trumped up charges might readily attract the protection of the section, whether by reference to prejudice at his trial or detention or the restriction of his liberty. But I cannot think that the section should be read as conferring on this court so wide a power of judgment over the practices of a foreign State as to require a refusal of extradition where the applicant will face a perfectly fair trial but complains only that members of other groups would not have to face trial at all. Yet if heading (5) has anything to add to the case, that is what it amounts to. In my judgment there is nothing in it. If Croats are or have been unduly favoured as regards decisions to prosecute (or, for that matter, in relation to the conduct of trials), that is not of itself any basis for according protection to Serbs under the 1989 Act.
39. I should add that I am in any event not persuaded that, on notionally identical facts, a Croat would not now be put on trial. The figures showing in general terms a markedly higher incidence of prosecutions against Serbs than against Croats have shifted over time and do not to my mind demonstrate (to the Fernandez standard) that if a Croat were the suspect of multiple murder, albeit on weak evidence, no action would be taken.
40. I turn, then, to heading (4).

WOULD THE APPLICANT BE PREJUDICED AT HIS TRIAL BECAUSE HE COULD NOT GET HIS EVIDENCE TO COURT?

41. The principal evidence relied on by Mr Knowles to support this head of argument is contained in the witness statement of Emma Gargitter, a legal assistant with the applicant's solicitors. In March 2004 she travelled to Belgrade. There she met the applicant's mother and sister, his co-defendant Bosko Kovacevic, and a lawyer by name Rajko Nikolic who she says has "knowledge of the case". She gives hearsay evidence of what they said to her. She says the lawyer Nikolic told her that it would be dangerous for the applicant's representatives to travel to Croatia, especially (I summarise) to the area around Knin. She describes the plight of the applicant's mother and sister, living in Belgrade effectively as stateless persons, their property in Croatia largely burnt down.
42. Then Miss Gargitter deals with her meeting with Bosko Kovacevic, which had been arranged by the mother and sister. She says he told her that "he remembered [the applicant] coming to the house at some point in the evening" and "talking to [the applicant] only for a short while, but… he knows that [the applicant] stayed to talk to other friends/family for a few hours". Miss Gargitter also states that Bosko Kovacevic made it clear that following his conviction he would never return to Croatia; he was afraid to travel outside Serbia for fear of being stopped at a border and sent back to Croatia; he knows of others to whom that had happened. She says he declined to let her have his address, telephone number, or any contact details, and made it clear that while he would like to help the applicant he did not want to expose himself to any danger.
43. Mr Thanki, the applicant's solicitor to whom I have already referred, gives evidence in his second witness statement of his encounter in Zagreb with another lawyer, Luka Susak, who "deals with a significant number of Serbians facing criminal charges in Croatia". Mr Thanki says that Mr Susak told him that Croatian courts were reluctant to allow Serb defence witnesses to be called from abroad.
44. I regard the evidence of Miss Gargitter and Mr Thanki as unsatisfactory and inadequate for the purposes of s.6(1)(d). Much of it is in very general terms. No reason is offered why the witnesses interviewed, including the lawyers, did not themselves give statements. There is no attempt to engage with the evidence of a bilateral agreement with Serbia for the purpose of obtaining evidence in one jurisdiction for use in proceedings in the other, and the possibility that Bosko Kovacevic's testimony might be available by this route. The applicant says there are other witnesses who would or might support his alibi, as having been in the house where the applicant says he was that night. But Mr Knowles' instructions are that he cannot remember the name of any one of them.
45. In my judgment there is no sufficient evidence to make good a case pursuant to s.6(1)(d) under heading (4); nor cumulatively with the other headings which I have set out.

DELAY: s.11(3)(b)

46. In my judgment this part of the case is concluded against the applicant by facts I have already addressed. Mr Thanki states his belief^[29] that

"due [sic] to the passage of time it will be difficult for [the applicant] to find witnesses to support his alibi. I believe that it would be difficult for a witness to recall events. I also believe that due [sic] to the passage of time the quality of identifying evidence would be such that a fair trial is not possible."

But as I have said the applicant cannot name any of his witnesses (aside from Bosko Kovacevic). We do not know who they are; we do not know when they left the Krajina region, assuming that they have done so; there is nothing to show that the applicant would have been any better off as regards the possible production of alibi evidence, say five years ago than he is today.

47. The case being made under s.11(3)(b) is in my judgment irretrievably vague and unspecific, and I would not forbid the applicant's return to Croatia on this ground any more than under s.6(1)(d).
48. For all these reasons I would dismiss this application.

Mrs Justice Hallett DBE

49. I agree.

Note 1   [1971] 1 WLR 987.    [Back]

Note 2   994G-H.    [Back]

Note 3   [1988] AC 958.    [Back]

Note 4   See Human Rights Watch 1997. Human Rights Watch is a New York-based organisation.    [Back]

Note 5   Brussels, 20 April 2004. We were helpfully provided with this document by counsel during the hearing.    [Back]

Note 6   Paragraph 1.1.1, p. 13.    [Back]

Note 7   Paragraph 1.1.3, p. 18.    [Back]

Note 8   Not least from the Report of the Organization for Security and Co-operation in Europe, Mission to Croatia, 22 June 2004 (“the OSCE June report”), p. 15. The OSCE is a Council of Europe body.     [Back]

Note 9   The OSCE June report, p. 15.    [Back]

Note 10   OSCE June report, p. 2 footnote 2.     [Back]

Note 11   Human Rights Watch Briefing Paper (13 May 2004).    [Back]

Note 12   Paragraph 1.3.1.    [Back]

Note 13   p. 1; see also p. 5.    [Back]

Note 14   The EC Opinion, p. 18.    [Back]

Note 15   Pp. 31-32.    [Back]

Note 16   See pp. 10 – 11.    [Back]

Note 17   P. 14.    [Back]

Note 18   P. 9.    [Back]

Note 19   EC Opinion paragraph 1.3.1 p. 30.    [Back]

Note 20   Pp. 6 – 7.     [Back]

Note 21   Released by the Bureau of Democracy, Human Rights, and Labor, 25 February 2004.    [Back]

Note 22   Section 1(e).    [Back]

Note 23   Paragraph 1.3.1, p. 31.    [Back]

Note 24   Pp. 119 – 120.    [Back]

Note 25   Skeleton argument, paragraph 24.    [Back]

Note 26   P. 15.    [Back]

Note 27   Principal report, paragraph 52.    [Back]

Note 28   Principal report, paragraph 59.    [Back]

Note 29   2nd witness statement, paragraph 24.    [Back]