QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
MR JUSTICE WILKIE
|REPUBLIC OF CROATIA||Defendant|
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Mr J Jones (instructed by Crown Prosecution Service) appeared on behalf of the Defendant
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"A person's extradition to a category 2 territory is barred by reason of the rule against double jeopardy if (and only if) it appears that he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction if he were charged with the extradition offence in the part of the United Kingdom where the judge exercises his jurisdiction."
"...has not the relevance for the charges against [the appellant] due to the fact that according to the Article 3 Paragraph 1 of the General Amnesty Act the amnesty is excluded for the perpetrators of the most serious violations of humanitarian law having the characters of war crimes, specifically the criminal act of war crimes against the civilian under Article 120 of the Basic Criminal Code of the Republic of Croatia."
"6.1.1(b) However, the Crown, both in the court below and in this court, takes a more fundamental point and argues that the plea in bar should not be, and simply is not, available when in truth and in reality the accused has not been in peril or in jeopardy abroad at all...
"...6.1.1(g) But That case and Connelly v Director of Public Prosecutions  A.C. 1254 were "domestic" cases and it is to be stressed that the accused man undoubtedly faced and was in reach of the court on each of the two relevant court appearances in each case. This court accepts the Crown's argument and the ruling below of Judge West-Russell that this appellant was never truly in jeopardy abroad. If the accused had been before the court in Italy and had been acquitted or convicted, then he would have been able successfully to plead autrefois acquit or convict. But where an accused man is absent, and takes no part whatsoever in the foreign proceedings, and indeed maybe even only faintly conscious if not ignorant of the fact that the foreign proceedings are on foot, it would in our judgment be wholly contrary to the principles underlying the pleas in bar and unjust that a conviction recorded in such circumstances should inhibit the English court. Those principles are based on the idea that a man shall not be twice in peril or in jeopardy. Unless the relevant conviction has or can reasonably have some effect, as of course it would have if the accused were in reach of the court which tried him, we believe that the principles set out in Connelly's case simply do not bite."
"2. A person who has been tried by a national court for acts constituting serious violations of international humanitarian law may be subsequently tried by the International Tribunal only if:
(a) the act for which he or she was tried was characterized as an ordinary crime..."
"No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same state for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that state".
It seems to me not without significance that the draft of the Convention should limit the expression of this rule to successive proceedings in the same jurisdiction.
"A person's extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that -
(a)the request for his extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or
(b)if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions."
"3. Professor Blitz criticised Croatia for being unable to 'upgrade its judiciary'. He said the judicial training was not of a high standard and this affected the quality of judges and justice. There had been some improvements but he felt that the quality of justice was undermined by political corruption and bias. He stated that the Judiciary did not operate in a professional independent environment but was influenced by politicians. As to a retrial for Mr Zdinjak, the fairness of such a hearing would depend greatly on the identity of the judge. In other words, it was a matter of luck whether the trial would be fair or not."
Then this appears at paragraph 62 of Mr Menon's skeleton:
"Ultimately, one cannot ignore the inherently political motivation for the pursuit of alleged war criminals by Croatia and the other Balkan states. As Professors Caplan and Blitz conclude at para 36 of their first report, 'war crimes trials have taken place against a backdrop of a wider ethno-political struggle over victimhood and blame for the wars in Croatia, Serbia and Bosnia Herzegovina, with all three countries seeking to indict minorities associated with particular states (on the grounds of ethnicity) and to pursue cases of war crimes and genocide against their neighbour states at the International Court of Justice'."
"68. It is true that there has in the past been considerable prejudice against ethnic Serbs and there may have been a time when they did not receive a fair trial. It is clear, however, from the material before us that there have been considerable improvements. This was first noted by this court in Travica v Croatia  EWCA 2747 (Admin), in which Laws LJ analysed the descent into nationalism during the regime of President Tudjman and the 'steady amelioration' since elections brought into power a new regime determined to rejoin the mainstream of European states. There are some continuing doubts but now even the ICTY has delegated some of the Yugoslav war crimes cases to the Croatian courts. From 1993 to 2006, the Supreme Court has dealt with 263 cases of war crimes, yet no final judgment has been challenged before the ECHR.
69. On the material before us, we are satisfied that Croatia will provide a fair trial to the appellant, even though he is a person of Serbian ethnicity accused of war crimes against Croatians."
"Upon the request of [the appellant] and pursuant to the provision of Article 16 of the aforementioned regulations, he will be provided with health care immediately upon his receipt to the prison if necessary. Moreover, in case there is preliminary knowledge on health issues of the person in custody, that due to their seriousness require hospitalisation and continuous treatment by a specialist which cannot be secured in the prison, the person in custody can be sent to the treatment in the Zagreb Prison Hospital, pursuant to Article 16(6) of the aforementioned regulation.
The Zagreb Prison Hospital is a penal institution within the imprisonment system administration that provides persons in custody, as well as persons convicted by means of an enforceable decision, with health care. In addition to the aforementioned pursuant to Article 16(1) of the regulations and upon approval of a competent judge ... a person in custody can be visited or examined by the doctor that he chooses.
Health care and health care services can be provided in the period of detention by the health care service, ie the prison doctor in a prison or the prison hospital in Zagreb at the expense of the criminal proceedings.
In case the person in custody is diagnosed with a disease that requires a certain therapy, the continuance of the therapy will be provided in an appropriate way by means of the same or equivalent medications and health care will continue as long as there is need for it according to the doctor's opinion. The health care in penal institutions is in compliance with the health care level provided to free persons. The types of health care that cannot be provided within the prison system will be provided in civil hospitals."
It seems to me that in medical terms the appellant will be properly looked after if he is returned. There is nothing to show that his health will undermine the injustice of any retrial if the case under section 91 is not made out.
"A person's extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have -
(a)committed the extradition offence (where he is accused of its commission), or
(b)become unlawfully at large (where he is alleged to have been convicted of it)."
The respondent accepts (Mr Jones' skeleton paragraph 37) that the period of time to consider is the period since the alleged offence in 1991/1992. The judge was therefore in error at page 9 of the judgment in holding that the time ran from 17 November 2009 when the appellant's conviction was upheld by the Supreme Court. Mr Menon submitted this morning that there was culpable delay from April 1996 when the indictment that ultimately led to the 2009 conviction was laid. That indictment in fact alleged genocide under Article 119; though the conviction, as I have said, was under Article 120. The appellant asserts no specific point of prejudice save by reference to the political situation in Croatia. In Goodyear v Gomes  1 WLR 1038, this was said:
"31... the test of oppression will not easily be satisfied: hardship, a comparatively commonplace consequence of an order for extradition, is not enough...
35...Council of Europe countries in our view present no problem. All are subject to article 6 of the Convention and should readily be assumed capable of protecting an accused against an unjust trial - whether by an abuse of process jurisdiction like ours or in some other way."
(See also Woodcock v Government of New Zealand  1 WLR 1979).
A) the previous conviction was entered in the person's absence and when he was never arrested nor detained in relation to that conviction, and/or;
B) when the previous conviction will not and cannot be executed due to an amnesty, and/or;
C) whether previously convicted of an "ordinary crime" and the second set of proceedings for an international crime, ie war crimes and/or genocide.