Artukovic v. Boyle

• Decision Date: 14 July 1952
• Docket Number: Civ. No. 13467.
• Court: U.S. District Court — Southern District of California
• Parties: ARTUKOVIC v. BOYLE.

107 F. Supp. 11

ARTUKOVIC v. BOYLE.

Civ. No. 13467.

United States District Court, S. D. California, C. D.

July 14, 1952.

O'Connor & O'Connor, Los Angeles, Cal., Robert T. Reynolds (of Snyder & Reynolds), Washington, D. C., Vincent G. Arnerich of Arnerich, Del Valle & Sinatra, Los Angeles, Cal., for petitioner.

Walter S. Binns, U. S. Atty., Clyde C. Downing, Chief, Civil Division, Asst. U. S. Atty., Arline Martin, Asst. U. S. Atty., all of Los Angeles, Cal., for respondent.

Ronald Walker, Los Angeles, Cal., for Federal People's Republic of Yugoslavia.

HALL, District Judge.

On August 29, 1951, the petitioner, Andrija Artukovic, was arrested in Los Angeles pursuant to a warrant of arrest issued by the United States Commissioner of this district and division, Howard V. Calverley, upon a complaint filed that day for extradition to the country now known as Yugoslavia.

The complaint was signed by one Rafo Ivancevic who described himself as "Consul General of the Federal People's Republic of Yugoslavia." The complaint did not directly charge the petitioner herein with any offense but alleged that the complainant Ivancevic was "informed through Yugoslavian Consular channels" that the petitioner herein was duly charged in Yugoslavia with "having murdered and caused to be murdered" several persons named in the complaint, during the years 1941 and 1942, and that a warrant had been issued in Yugoslavia for his arrest.

Extradition was and is sought under the provisions of Title 18 U.S.C. §§ 3181, 3184, 3188, 3189, 3190, 3195,¹ and the Treaty of Extradition with the Kingdom of Serbia of May 17, 1902, 32 Stat. 1890.²

Section 3141 of Title 18 U.S.C.³ does not permit bail to be taken by a Commissioner in a capital case and accordingly it was refused by the Commissioner, whereupon the petitioner filed the petition for a writ of habeas corpus on September 12, 1951, wherein his release was then sought on bail pending the hearing on the complaint for extradition before the Commissioner.

At the time of the return to the writ on September 17, 1951, the United States Marshal, Honorable James J. Boyle, appeared by the United States Attorney, and the Yugoslavian Government appeared by its counsel, Ronald L. Walker, Esq., both in opposition to the granting of the writ.

On that hearing it became apparent from arguments of counsel that the petitioner desired to and was in fact, attacking the legal merits of the extradition complaint on grounds not stated in the then pending petition. Accordingly, the petitioner, upon motion, was allowed to amend by adding to the petition challenges to the legal merits of the proceedings on the grounds of non-compliance with applicable statutes, nonexistence of an extradition treaty with Yugoslavia, and that the complaint showed on its face that the alleged crimes were "political offenses," that is, that the complaint on its face did not allege facts which, if true, would entitle the Yugoslavian government to extradite the petitioner either under the statutes or under the treaty depended upon by the Yugoslavian government. The amended petition was filed September 19, 1951.

The petition as thus amended, together with the response filed by the Marshal and by the Yugoslavian Government raised serious questions which would not permit of a precipitous or hurried decision. The parties desired to brief and to argue the legal points raised. Accordingly the matter was continued to October 8, 1951.

In the exercise of the undoubted power and jurisdiction of the court on the filing of the petition for a writ of habeas corpus to enlarge a petitioner on bail pending the determination of the merits of the writ, Barth v. Clise, 1871, 12 Wall. 400, 402, 79 U.S. 400, 401, 402, 20 L.Ed. 393; Wright v. Henkel, 1903, 190 U.S. 40, 23 S.Ct. 781, 47 L.Ed. 948; In re Mitchell, D.C.1909, 171 F. 289; Fernandez v. Phillips, 1925, 268 U.S. 311, 45 S.Ct. 541, 69 L.Ed. 970; In re Gannon, D.C.1928, 27 F.2d 362; In re Klein, D.C.1930, 46 F.2d 85, the petitioner was enlarged on bail pending the final hearing and decision on the petition for writ of habeas corpus. Although petitioner had been enlarged on bail in the sum of $1,000 in the deportation proceeding against him, his bail herein was fixed at $50,000, with his consent, and corporate bail was not allowed.⁴

On October 8, 1951, counsel for Yugoslavia indicated that he desired to file an amended complaint before the Commissioner. Accordingly, after further testimony and argument on that day, the matter was again continued to October 22, 1951. In the meanwhile and on October 15, 1951, the Yugoslavian government filed with the Commissioner an amended complaint, a part of which consisted of authenticated copies of an English translation of a "warrant" issued by the "County Court of Zagreb" of the "People's Republic of Croatia" on September 6, 1951, and an "indictment" which was filed with that court on the same day. This complaint on its face showed that no charge had been filed in any court in Yugoslavia on the date of the filing of the original complaint (August 29, 1951) and was not filed until some days thereafter, (September 4, or 5, or 6, 1951.) That deficiency and others as existed in the original complaint and as are not present in the amended one were remedied by the amended complaint. Mishimura Ekiu v. United States, 1892, 142 U.S. 651, 12 S.Ct. 336, 35 L.Ed. 1146; Iasigi v. Van De Carr, 1897, 166 U.S. 391, 17 S.Ct. 595, 41 L.Ed. 1045.

The parties stipulated that the warrant and the bond on the original petition for a writ of habeas corpus should stand as against the new complaint. On October 22, 1951, the matter was continued to November 5, 1951, for further briefing, which had not then been finished by either party, and on that date it was continued to January 14, 1952, in order that counsel for the various parties might complete their research and file briefs, many documents and materials upon which the parties rely being either out of print or not available in this community, and available only in the State Department or the Library of Congress. On November 5, 1951, the parties were given thirty days to file their briefs and supporting materials, but the petitioner's was not received until January 11, 1952, and the Yugoslavian briefs were not filed until the morning of the hearing on January 14th, 1952.

In recognition of the difficulties of research, the seriousness of the questions involved and the consequences of any judgment of this court, the parties have thus been allowed full opportunity for research, briefing and hearing.

In consideration of the petition for the writ filed, as it was, prior to the hearing before the Commissioner, this Court is limited in its inquiry to whether the Commissioner has jurisdiction. Wright v. Henkel, 1903, 190 U.S. 40, 23 S.Ct. 781, 47 L.Ed. 948; In re Mitchell, D.C. 1909, 171 F. 289.

In the consideration of that question, ordinary technicalities of pleading are applicable only to a limited extent, but are entitled to respectful notice. Grin v. Shine, 1902, 187 U.S. 181, 23 S.Ct. 98, 47 L.Ed. 130; Glucksman v. Henkel, 1911, 221 U.S. 508, 31 S.Ct. 704, 55 L.Ed. 830. The pleadings must, however, conform to the pleading rules of the State of California, the law of the place where the petitioner was found. Grin v. Shine, supra; In re Ezeta, D.C.N.D.Cal. 1894, 62 F. 972.

The questions involving jurisdiction reduce themselves to two, which, broadly stated are: (1) whether or not the extradition treaty with the Kingdom of Serbia of 1902 is an extradition treaty and in existence between Yugoslavia and the United States, and: (2) if such treaty is in force, whether or not the amended complaint as it now stands states an extraditable offense on its face.

It is conceded by all parties that on May 17, 1902, an extradition treaty between the United States of America and the Kingdom of Serbia was proclaimed to be in effect after ratification by the Senate of the United States on January 27, 1902, ratification by the President on March 7, 1902, ratification by Serbia on March 17, 1902, and an exchange of ratifications at Belgrade on May 13, 1902. The pertinent provisions of the treaty are set forth in the marginal footnote No. 2, ante. It is likewise conceded, that no other treaty of extradition has been entered into since then, either with the Serb-Croat-Slovene State, or Yugoslavia, or the Federal People's Republic of Yugoslavia.

But the petitioner contends that the Kingdom of Serbia has long since ceased to exist as a "foreign country" or as a "state" or independent sovereignty; that "such foreign government" as that term is used in Section 3181 of Title 18 U.S.C., i.e., the government of the Kingdom of Serbia in 1902 has likewise long ceased to exist; that the foreign country, i.e., Yugoslavia, seeking extradition is an entirely different "foreign country" than the Kingdom of Serbia; that the government of Yugoslavia is an entirely different "foreign government" than the government of the Kingdom of Serbia in 1902 as it existed at the time of the treaty; that there has not been the continuity of either the country or the government which will permit it to be said that they are the same; that if there has been such continuity, the government of Yugoslavia has renounced the treaty; that the statement by the State Department of the United States and of the Yugoslavian Ambassador that the treaty is in force is a mere fiat⁵ and is not in compliance with the constitutional requirement that treaties with foreign states be submitted to the Senate for ratification before they become effective; and that no such treaty has either been negotiated with Yugoslavia or submitted to the Senate of the United States for ratification or approval.

It is contended, among other things, by the respondent Marshal and the demanding government that the determination of whether a treaty is in existence is purely a political one to be determined...