Neutral Citation Number: [2007] EWHC 1770 (Admin)
Case No: CO/2540/2007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/07/2007

Before :

LORD JUSTICE HUGHES
MR JUSTICE TREACY
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Between :

	The Government of Croatia	 Appellant	
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	Milan Spanovic	Respondent	

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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
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Judgment

 Lord Justice Hughes :
1.	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). 
2.	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.
3.	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.
4.	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.  
5.	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.    
6.	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.  
7.	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.  
8.	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.  
9.	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).
10.	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.  
11.	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)
12.	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.”
13.	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 can, that the state of affairs in Croatia in 1998 was such that he would not, as an ethnic Serb accused of an offence committed against ethnic Croatians in the course of the civil war, have been tried fairly, and that in consequence it was reasonable for him to flee the country and to seek to establish himself elsewhere.   If he does establish this, then it seems to me that he is not disentitled to rely on the passage of time.  That would not mean that it is necessarily unjust or oppressive to extradite him today.  It would mean that question whether injustice or oppression arise from the passage of time would have to be addressed on its merits from a neutral starting point, rather than being closed off to him by his departure from Croatia in 1998.   The primary facts relating to the question of justification for the respondent leaving Croatia have not been found, since the argument and material now relied upon were not developed before the District Judge.  He cannot at this stage be said to have been wrong for reason (i), but if the case goes back the facts relating to this issue will have to be determined.

Ground (ii)
14.	It does seem to me that the District Judge somewhat overstated the case in saying that Mr Spanovic’s whereabouts had been known to the Government of Croatia since May 1997.  It is certainly true that in that month he was issued with a new passport, and shortly thereafter with a driving licence.  It is also plain that between May 1997 and leaving Croatia in November 1998 he travelled several times 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 for 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 identities 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 had some contact with branches of the Croatian Government in connection with matters such as 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 generated a request for arrest and none was made until 2006 when, it seems, there was a request by Croatia to Interpol 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. 
16.	The relevance in law of culpable delay on the part of the requesting State in tracking down the person sought, if such be shown, remains open to a degree of debate.  The cases, beginning with the difference of opinion between Lords Diplock and Edmund-Davies in Kakis, are reviewed by Laws LJ in La Torre v Republic of Italy [2007] EWHC 1370 (Admin) and need not be set out here. I respectfully agree with his conclusions at paragraph 37:
“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……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.  ….An overall judgment on the merits is required, unshackled by rules with too sharp edges.”
I do not read that expression of the test as confining the possible relevance of culpable delay to the marginal case, nor would I myself do so.  Particularly since 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 finding 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 principal focus, when it comes 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.  
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.

Ground (iii)
18.	The respondent’s claim for asylum failed before the immigration Adjudicator in February 2000.  It looks as though the accounts which he gave of his activities in Yugoslavia between 1993 and 1998 differed somewhat as between his initial asylum interview, his evidence before the Adjudicator, and his evidence for the present extradition application.  The claim for asylum failed on the ground that although the government led by Tudjman until his death in 1999 was still in power, by then (2000) re-integration of minority groups had begun and the risk faced by Serbs was not of persecution but of discrimination. That demonstrates that the test on an asylum claim is not the same as the test on extradition.  The Adjudicator did not accept the assertion that the respondent had been convicted as it is now known he had been.  Further, he believed that there was a general amnesty in any event.  Subsequently, the respondent satisfied the Home Secretary that the conviction did exist and he was granted exceptional leave to remain;  subsequently that was converted in 2005 into indefinite leave to remain, there having been several years of residence.  Before the District Judge an official of the Immigration Service gave evidence that it was not completely clear whether the initial grant of exceptional leave to remain had been on compassionate grounds or on the basis that because of the conviction a return to Croatia would, at that time, involve an infringement of ECHR Convention rights;  the indications were, he thought, that it may have been the latter.  
19.	The Government now complains that in reaching his conclusions the District Judge (a) concluded that it was more likely that the grant of leave had been on human rights grounds, (b) referred to the factual error of the Adjudicator as to the conviction and (c) relied upon the fact that the respondent had been given a reasonable expectation that he could live freely in this country.  
20.	I can see no reason why the District Judge was not entitled to conclude, on the evidence which he had heard, that it was more likely that the grant of leave was because of the conviction being proved and because, in 2000 or thereabouts, such a conviction might well have put the respondent in peril of treatment by the then Government of Croatia which would be inconsistent with Convention rights.  As to the Adjudicator’s factual inaccuracy, as it turned out to be, I do not read the District Judge as doing any more than referring to it as a matter of history.  
21.	The grant of leave to remain could not by itself create a bar to extradition.  Leave to remain was granted when no application for extradition was being made.  If return in or about 2000 would have involved a breach of Convention rights, the same may or may not be true today.  An indication to the respondent given by the UK government, at a time when there was no extradition request, that he could expect to remain, would not have the same force as some indication by the Croatian government that he would not be brought back.  The possible relevance of the UK immigration history, aside from any light it may shed on the facts asserted by the respondent, is as it seems to me limited to the effects upon him of the passage of time.    In that, in the manner explained by Lord Diplock in Kakis, it seems to me that it may be relevant (but not determinative) if, owing to the passage of time, the respondent has acquired the belief that he is secure. I am not persuaded that the District Judge was treating it in any other way. Against that must be weighed the desirability of those who face charges (or in this case re-trial) in friendly countries being returned to be dealt with appropriately there. In all cases the ultimate question is whether overall it is unjust or oppressive owing to the passage of time for that to happen.

Ground (iv)
22.	It is by no means unusual for those sought for extradition to have established themselves respectably in a new country.  That is often true of those who fled solely to evade justice, never mind such as this respondent may be, who had good cause to depart their home country.  In the case of the former, they will ordinarily not be able to rely on having established themselves because they will have brought the delay upon themselves by fleeing:  see Kakis.  In the case of the latter, self-establishment and respectable living in the new country must, as it seems to me, be relevant (but not determinative) as part of the effect of the passage of time.  In deciding whether it is unjust or oppressive to return, such a factor must be weighed against the desirability of those accused in friendly countries being dealt with there.  In this case, this question must be addressed when it has been decided into which category this respondent falls.  

Ground (v)
23.	Practical difficulties in facing trial long after the event are frequently advanced as reasons why extradition will be unjust.  Similar submissions are often advanced in cases to be tried in this country.  Here, the court has jurisdiction to stay a prosecution if satisfied that a fair trial cannot take place, owing to the passage of time.  The absence of important witnesses on one or both sides, the nature of any investigation at the time, the ability of the defendant to deal with allegations first brought to his attention years after the event and the effect on the memories of all concerned are just some of the considerations which a domestic court will address.  Such considerations are also likely to be relevant to an application for extradition, but with this sometimes important difference.  On an extradition request, the English court is not directly responsible for deciding whether a fair trial can take place;  rather it is responsible for deciding whether it is fair or unfair to return:  see Woodcock v New Zealand  [2004] 1 WLR 1979.  The difference between the two will be critical when it is proper to proceed on the basis that the requesting State will exercise a jurisdiction (however described) to prevent trial if, because of the delay, it cannot fairly be conducted. In such a case it will often, if not ordinarily, be right to leave the decision to the local court, which will have the whole of the evidence available. On the other hand, if no such jurisdiction exists, the question of fairness of return blends into the question of fairness of trial.  In other words, the existence or non-existence of safeguards in the requesting State against an unfair trial is an important factor and may be critical.
24.	The question may arise how the existence or non-existence of such safeguard jurisdiction is to be determined. In Lisowski v Poland [2006] EWHC 3227 (Admin) Keene LJ expressed the view (obiter) that whilst it is a relevant factor that a requesting State is a party to the ECHR, and thus subscribes to Article 6, he would not regard it as by itself determinative of whether the State exercises the relevant jurisdiction.  The observation was obiter because in that case the court was prepared to assume that Poland had such jurisdiction but held nevertheless that there was so obvious a danger of unfair trial that extradition should be refused.  In Woodcock, and in several other cases also, there had been short but clear evidence from the requesting State as to the jurisdiction available as a safeguard. In La Torre Laws LJ expressed misgivings about any proposition that the onus lay on a requesting State to advance positive evidence for such safeguards against unfair trial, at least where the State is a party to the Framework Decision, the basis of which is a high level of mutual trust between the States as to their respective procedures.  He nevertheless observed that when faced with this question, the English court can only proceed on the footing that the necessary safeguards exist if there is objective basis for saying so.  For my part, I would be prepared to accept for the sake of argument that in most cases the fact that a State is party to the Framework Decision may provide such a basis, at least in the absence of evidence to the contrary, although this does not arise here for decision because such a State is not before us.  But like Keene LJ, I would not necessarily assume that subscription to Article 6, important though that is, always carries with it a jurisdiction to prevent trials which are unfair through delay or other causes.  It is after all a comparatively simple matter for the requesting State to provide short evidence of the existence of the jurisdiction, if the issue be raised.    The only material advanced by the Government in this case was the decision of the Strasbourg court in Tomic v UK (No 17837/03).  That certainly recorded some progress in Croatia and the subscription to Article 6, but it did not address the present question directly.
25.	In the present case the question whether the effect of the passage of time is such as to make it unfair for the respondent to be returned overlaps significantly with the question whether his return would involve a breach of Convention rights, and perhaps with an issue as to extraneous considerations.  His principal contention is that whatever may or may not be the theoretical powers of the Croatian courts, in practice ethnic Serbs, such as he, cannot obtain a fair trial on a charge such as this.  That critical issue is one on which the District Judge has yet to rule.  It will no doubt depend, very largely, on how conditions in Croatia have moved on in the past seven years or so.  

Conclusion
26.	It is necessary to beware the process of isolating parts of the judgment below and demonstrating item by item that each alone would not justify the conclusion that unfairness/oppression was established.  What matters is the overall picture.  I bear firmly in mind that the case has moved on some way, in the issues raised and the material advanced, from the case as presented to the District Judge.  I am, however, satisfied, for the reasons given, that the District Judge’s conclusion is flawed at least on ground (ii), and that it calls for reconsideration in the light of the several considerations which I have set out.  We should remit to the District Judge under section 106(1)(b) the relevant question, namely
“whether extradition is barred by reason of the passage of time”
The District Judge’s decision on this question will, now, stand as ours:  see section 106(8).  If he decides this question in favour of Mr Spanovic, discharge will follow.  If he decides it in favour of the Government, he will go on under s 106(7) to consider the other possible bars to extradition, in particular the possible breach of Convention rights and, if it arises, the question of extraneous considerations.
Mr. Justice Treacy:
I agree.