Ivancevic v. Artukovic, 13552.

• Decision Date: 19 February 1954
• Docket Number: No. 13552.,13552.
• Citation: 211 F.2d 565
• Parties: IVANCEVIC, Consul General of Yugoslavia, v. ARTUKOVIC. WARE, United States Marshal v. ARTUKOVIC.
• Court: U.S. Court of Appeals — Ninth Circuit

211 F.2d 565 (1954)

IVANCEVIC, Consul General of Yugoslavia, v. ARTUKOVIC.

WARE, United States Marshal v. ARTUKOVIC.

No. 13552.

United States Court of Appeals, Ninth Circuit.

February 19, 1954.

Ronald Walker, Los Angeles, Cal., for appellant.

Robert T. Reynolds, Washington, D. C., Vincent G. Arnerick, Edward J. O'Connor, Los Angeles, Cal., for appellee.

Laughlin E. Waters, U. S. Atty., Clyde C. Downing, Arline Martin, Asst. U. S. Attys., Los Angeles, Cal., for appellee Robert W. Ware, U. S. Marshal.

Before STEPHENS, HEALY, and POPE, Circuit Judges.

STEPHENS, Circuit Judge.

Rafo Ivancevic, Consul General of the Federal Peoples' Republic of Yugoslavia, hereinafter sometimes abbreviated to "Yugoslavia", has filed with the United States Commissioner at Los Angeles, California, a formal request upon behalf of his country that an order issue for the extradition of Andrija Artukovic, alias Alros Anich, to Yugoslavia, in which country a warrant is outstanding for his arrest as a fugitive charged with the crime of murder.¹ The Commissioner ordered Artukovic held by the United States Marshal without bond pending a hearing in the extradition proceedings,² and Artukovic thereupon petitioned the United States District Court for the issuance of the writ of Habeas Corpus, praying that the court order his release upon the posting of a bond in a reasonable sum.

Subsequently, Artukovic was permitted to amend his petition in order to attack the jurisdiction of the proceedings on two grounds: i. e., that the charge against him was of a political nature and therefore was not an extraditable offense,³ and, more sweeping in effect, that no treaty of extradition exists between the United States and Yugoslavia. Bail was issued in the amount of $50,000 pending a determination of the jurisdictional question. After a hearing, the court rendered a decision which did not reach the first reason mentioned, but nevertheless ordered Artukovic's release upon the ground last named, subject to a $5,000 bond pending appeal. Artukovic v. Boyle, D.C.S.D.Cal., 107 F.Supp. 11. The United States has filed its brief as amicus curiae requesting reversal of the district court judgment. We quote in the margin the statement in the Government's brief at page 4, as to the "Interest of the United States".⁴

We start with the admitted fact that extradition from the United States to a foreign country may be accomplished "only during the existence of any treaty of extradition with such foreign government." Title 18 U.S.C.A. § 3181. See, also, Factor v. Laubenheimer, 1933, 290 U.S. 276, 287, 54 S.Ct. 191, 78 L.Ed. 315.

All parties agree that the "Kingdom of the Serbs, Croats and Slovenes" changed its governmental structure somewhat and its official title to "Kingdom of Yugoslavia" in 1928, and thereafter to the "Federal Peoples' Republic of Yugoslavia" in 1945, and that these changes were internal and political changes and did not affect the validity of any treaty which was effective under the government of "Kingdom of the Serbs, Croats and Slovenes".⁵ Therefore, if the treaty between the United States and Serbia survived as an effective treaty between the United States and the Kingdom of the Serbs, Croats and Slovenes, it survived as an effective treaty between the United States and the Federal Peoples' Republic of Yugoslavia, and is effective in the extradition proceedings pending before the United States Commissioner.

After an exhaustive hearing and consideration of authorities and official documents, the district court found that there was no treaty of extradition in existence between the demanding nation and the United States, and that there never has been. It was freely admitted by all parties that such a treaty had existed between the United States and Serbia dated May 17, 1902, but Artukovic claims that when, in 1918, several principalities or nations, inclusive of the Kingdom of Serbia and the Kingdom of Montenegro, combined under the name of the "Kingdom of the Serbs, Croats and Slovenes", a new nation was born which had no carry-over political relations to any of the old governments; and that, therefore, the United States-Serbian Extradition Treaty of 1902 which the demanding government and the United States Marshal claim is in effect between the United States and Yugoslavia, has no validity. On the other hand, the United States Marshal and Consul General of Yugoslavia, as well as the United States by its Amicus Curiae brief, assert that the sovereignty of Serbia, as that country existed upon the date of the United States-Serbian Extradition Treaty of 1902, has continued to exist uninterruptedly and that the combination of countries under the name of "Kingdom of the Serbs, Croats, and Slovenes" was not and is not an entirely new nation but the same country under the change of official title, and is a continuation of the Serbia of 1902 as a Greater Serbia.

The historic events which lead to the different views we have just set out are not in issue. Whether these events support one or the other of such views is the issue. Since these events are proved by agreement as to fact and by official and authoritative documents, we are in as favorable a position to decide the issue as was the district court.

The sovereign nation of the Federal Peoples' Republic of Yugoslavia is the combination of the independent sovereign states of the Kingdom of Serbia and of Montenegro and the Serbian, Croatian and Slovene provinces formerly under the government of the Empire of Austria-Hungary. We have reproduced the portion of appellant's (Ivancevic's) opening brief which names and gives a limited political and ethnic reference to each.⁶ We have concluded that the factual statements therein are accurate insofar as they touch the issues of this case.

The first title assumed by the combination of countries was the "Kingdom of the Serbs, Croats and Slovenes", which was subsequently changed by internal politics to the "Kingdom of Yugoslavia", and later to the "Federal Peoples' Republic of Yugoslavia". The people of each of these combining countries are preponderantly of Yugoslavic or South Slavic blood and throughout a very, very long period of time they have been keenly conscious of their interrelation and have harbored an unabated ambition to live as a part of a United Yugoslav state. The upheaval in Europe, owing to the First World War, shook several Slav provinces from the old Monarchy of Austria-Hungary and, some time before, other Slav-peopled portions of Turkey had been separated from that country. The opportunity for unity of the South Slavs was embraced and finally accomplished. Serbia, an area of Central Europe peopled by Slavs in the great majority, achieved complete independence in 1878 and was an important going state before and during World War I, with international recognition and official representation in the capitals of the world. Montenegro was a small though independent nation. The other units in the combination, though not full fledged nations, were at the time of the combination free from domination by neighbor countries.

We recite here certain historic facts which, we think, are critical to the issue.

On December 7, 1914, Serbia promulgated a statement in which it characterized its part in World War I as,

"* * * a struggle for the liberation and unification of all our unliberated brethren, Serbs, Croats and Slovenes * * *."⁷

On May 6, 1915, The Yugoslav Committee in London, composed of Yugoslav refugees, announced that,

"* * * the struggle of Serbia and Montenegro is not a struggle of conquest to expand their borders; these two Serbian states are protagonists in the liberation of all Yugoslavs and their task is the task of all of us."⁸

On July 20, 1917, a Committee of Yugoslavs and representatives of the Serbian government announced from the Island of Corfu affirmation of their principles as,

"* * * the only and inalienable demand of our people * * * the basis of the principle of free self-determination of peoples, to be liberated from all foreign enslavement and united in one free, national and independent state."⁹

A few days later, the "Montenegrin Committee for National Unification" announced its acceptance of the Corfu Declaration.

On October 6, 1918, the "National Council of Slovenes, Croats and Serbs" was organized as

"* * * the political body representing all Slovenes, Croats and Serbs * * *".¹⁰

Shortly afterward, Serbia recognized the National Council as the lawful government of the Serbs, Croats and Slovenes, and on November 24, 1918, the National Council resolved to

"* * * proclaim the unification of the State of the Slovenes, Croats and Serbs * * * with the Kingdom of Serbia and Montenegro into a unified State of Serbs, Croats and Slovenes * * *,"¹¹

and Montenegro agreed a few days later. Many events of importance to the issue occurred between the dates we have specified, all of them trending toward the same end. The culmination seems well illustrated by the exchange of official communications from the Serbian government to the United States Secretary of State and the Secretary's reply thereto.¹²

In 1921, United States Secretary of State Hughes, in answer to a United States citizen, wrote:

"* * * No formal understanding has been reached with the Government of the Kingdom of the Serbs, Croats and Slovenes as to the application of these agreements to the territory of that country which formerly belonged to the Austro-Hungarian Empire. It is the opinion of the Department that the treaties may properly be regarded as applicable to that territory."¹³

The trial court discounts the weight of this opinion because it was given in the form of private communication in a nonadversary proceeding. Yet it must be pointed out that the communication in question was not private communication, but an official one of the Secretary of State, as such, with respect to a matter peculiarly within his official charge. And but a short time...