Karadzole v. Artukovic, 15217.

• Decision Date: 24 June 1957
• Docket Number: No. 15217.,15217.
• Citation: 247 F.2d 198
• Parties: Branko KARADZOLE, Consul General of the Federal People's Republic of Yugoslavia, and Robert W. Ware, United States Marshal, Appellants, v. Andrija ARTUKOVIC, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

247 F.2d 198 (1957)

Branko KARADZOLE, Consul General of the Federal People's Republic of Yugoslavia, and Robert W. Ware, United States Marshal, Appellants, v. Andrija ARTUKOVIC, Appellee.

No. 15217.

United States Court of Appeals Ninth Circuit.

June 24, 1957.

Ronald Walker, Los Angeles, Cal., Pehle, Lesser, Mann, Riemer & Luxford, Lawrence S. Lesser, Washington, D. C., George E. Danielson, Los Angeles, Cal., for appellants.

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

Before STEPHENS, HEALY and POPE, Circuit Judges.

STEPHENS, Circuit Judge.

This is a case of first impression involving extradition of an alleged World War II war criminal. Rafo Ivancevic, Consul General of the Federal People's Republic of Yugoslavia, in August, 1951, 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 appellee Andrija Artukovic, alias Alois Anich, to Yugoslavia, in which country a warrant is outstanding for his arrest as a fugitive charged with the crime of murder.¹ An amended complaint was filed October 15, 1951. The Commissioner ordered Artukovic held by the United States Marshal, and Artukovic thereupon petitioned the District Court for the issuance of the writ of habeas corpus praying that the court order his release. Artukovic attacked 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,² and that no treaty of extradition existed between the United States and Yugoslavia. After a hearing, the District Court held that the extradition treaty of 1902 between the United States of America and the Kingdom of Servia (Serbia) was not in force and effect between the United States of America and Yugoslavia, and ordered the release of appellee Artukovic. Artukovic v. Boyle, D.C., 107 F.Supp. 11. The United States and Rafo Ivancevic, as Consul General of Yugoslavia, appealed. This Court reversed, holding that the extradition treaty between the United States and the Kingdom of Servia (Serbia) in 1902 is a valid and effective treaty between the United States and the Federal People's Republic of Yugoslavia and remanded the case to the District Court for the adjudication of other issues in the case. Ivancevic v. Artukovic, 9 Cir., 1954, 211 F.2d 565, certiorari denied 348 U.S. 818, 75 S.Ct. 28, 99 L.Ed. 645, rehearing denied 348 U.S. 889, 75 S.Ct. 202, 99 L.Ed. 698. Further hearings were held in the District court as to the remaining issue, and that Court decided that the alleged offenses charged in the amended Complaint were of a "political character" within the meaning of Article VI of the treaty³ and that therefore appellee Artukovic could not be extradited. The District Judge pointed out that the matter was before him prior to any hearing by a committing magistrate, and the sole function of the court was to determine whether on the face of the pleadings an extraditable offense under the treaty was stated. The court noted that the text of the amended Complaint differed from the Indictment, but that the Complaint had attached to it a copy of the Indictment as it was filed in the office of the County Public Prosecutor, Zagreb, Yugoslavia. The District Court read the Complaint and the Indictment as a whole and made the following comments in its Order:

"The Indictment charges that the petitioner was `Minister of the Interior\' from April 16, 1941 to October 10, 1942, in the cabinet of a government called `Pavelic\' government. Many references are made to the fact that during the entire period involved in the Indictment, the petitioner occupied such position in such government. The court takes judicial notice of the fact that prior to, or at, or about, the time of the invasion of Yugoslavia by the German armies in early April, 1941, the head of the government of Yugoslavia, and all of the principle sic officials of that government, fled the country; and that on April 10, 1941, the portion of Yugoslavia known as `Croatia\' established an independent government with a full set of officers, and sought recognition by other governments (and secured recognition by some governments), in which the petitioner became an official and was Minister of the Interior of that government during all of the period of time covered by the Indictment.

"It appears from the face of the Indictment that all of the asserted offenses for which extradition is sought were the result of `orders\' issued by the petitioner, acting as such official of the above-mentioned government during the time of war.

"The Indictment is in vehement language, and it and the briefs of the parties reflect the animus which has existed between the Croatians and the Serbs for many hundreds of years, as well as the deep religious cleavage known to exist among the peoples in the Balkans.

"The Court has not counted the number of persons named, but notes that according to the parties, the Complaint names 1,293 persons as having been killed on `orders\' of the petitioner.

"But the Indictment does not stop at that. In Paragraph 7 on page 9, it is alleged that 30,000 unidentified persons were killed on `orders\' of the petitioner and further, in Paragraph 7 on page 14, approximately 3,000 more unidentified persons are alleged to have been killed on `orders\' of the petitioner. In Paragraph 8 on page 15, it is alleged that as a result of `orders\' of the petitioner, 200,000 persons were killed. On page 17, it is alleged that a total of 17,600 unidentified children were killed on `orders\' of the petitioner.

"It would be a work of supererogation to analyze the Indictment further. Though the Indictment is not bad because it charges the death of more than one person, the plain reading of the Indictment here makes it immediately apparent that the offenses for which the surrender of the petitioner is sought, were offenses of a political character. (In re Ezeta, D.C., 62 F. 972, and cases there cited.) See also: Hackworth — Digest of International Law, Vol. IV, 1952 Ed., page 45 et seq., Section 316, and cases there collected, which show that officials of the United states, Mexico and many other countries on similar accusations, have uniformly held that conduct, such as that with which petitioner is charged in the Indictment here, was conduct of a political character and not extraditable under a treaty in terms such as the one before the court."

The District Judge held (for the reasons above set forth) that Artukovic was entitled to the writ of habeas corpus and ordered its issuance and his discharge from custody. Artukovic v. Boyle, D.C.1956, 140 F.Supp. 245. Appellant, Branko Karadzole, substituted as Consul General of the Federal People's Republic of Yugoslavia, appeals from that judgment.⁴

The Appeal.

This proceeding arises on habeas corpus prior to hearing before a committing magistrate, and is entirely proper if the District Court confines its determination to the question whether the committing magistrate has jurisdiction.⁵ Terlinden v. Ames, 1902, 184 U.S. 270, 22 S.Ct. 484, 46 L.Ed. 534; In re Heilbonn, 1853, 1 Park.Cr.R., N.Y., 429. The committing magistrate has jurisdiction, at this stage of the case, if there is a treaty and the commission of extraditable offenses is charged. Terlinden v. Ames, supra; In re Luis Oteiza y Cortes, 1889, 136 U.S. 330, 10 S.Ct. 1031, 34 L.Ed. 464; In re Stupp, 1875, 23 Fed.Cas.No.13,563, 12 Blatchf. 501; Ornelas v. Ruiz, 161 U.S. 502, 508, 16 S.Ct. 689, 40 L.Ed. 787; Fernandez v. Phillips, 268 U.S. 311, 45 S.Ct. 541, 69 L.Ed. 970. In Terlinden v. Ames, supra, the writ of habeas corpus was issued before the examination by the commissioner was entered upon, and the inquiry was held to be confined to the question of jurisdiction of the commissioner or magistrate. It was therein determined that the committing magistrate had jurisdiction and the petition for the writ was dismissed. But it was pointed out in the case that 184 U.S. 270, 22 S.Ct. 488 "On the face of the complaint extraditable offences were charged to have been committed * * *."

We have previously held that a valid treaty exists between the United States and Yugoslavia. Ivancevic v. Artukovic, supra. The sole question therefore before the District Court was whether on the face of the Complaint and the attached Indictment, together with the facts of which the court could take judicial notice, it could clearly be said that the offenses charged were of a political character. Appellant argues that it was error for the District Court to so hold. We initially determine this point without considering any possible legal significance that might result because the offenses charged are called "war crimes" in the Indictment, and the fact that appellant admits that Artukovic is sought as a "war criminal." Perhaps the leading case on the subject is In re Castioni, (1891) 1 Q.B. 149. In that case, the following pertinent comments are made:

Denman, J. (page 156).

"I think that in order to bring the case within the words of the Act and to exclude extradition for such an act as murder, which is one of the extradition offences, it must be shewn that the act is done in furtherance of, done with the intention of assistance, as a sort of overt act in the course of acting in a political matter, a political rising, or a dispute between two parties in the State as to which is to have the government in its hands, before it can be brought within the meaning of the words used in the Act."

Denman, J. (page 159).

"The question really is whether, upon the facts, it is clear that the man was acting as one of a number of persons engaged in acts of violence of a political character with a political object, and as part of the political movement and rising in which he was taking part."

Hawkins, J. (page 165).

"Now what is the

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