Artukovic v. Boyle, 13467.

• Decision Date: 03 April 1956
• Docket Number: No. 13467.,13467.
• Citation: 140 F. Supp. 245
• Court: U.S. District Court — Southern District of California
• Parties: Andrija ARTUKOVIC, Petitioner, v. James J. BOYLE, United States Marshal, Respondent.

140 F. Supp. 245

Andrija ARTUKOVIC, Petitioner, v. James J. BOYLE, United States Marshal, Respondent.

No. 13467.

United States District Court S. D. California, Central Division.

April 3, 1956.

O'Connor & O'Connor, Vincent G. Arnerich, Los Angeles, Cal., for petitioner.

Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., for respondent U. S. Marshal.

Ronald Walker, Los Angeles, Cal., for Counsul General of Federal Peoples' Republic of Yugoslavia.

HALL, District Judge.

The holding of this court—107 F. Supp. 11—that no treaty was in existence between the United States of America and the country now known as Yugoslavia, was reversed by the United States Court of Appeals for the Ninth Circuit— Ivancevic v. Artukovic, 211 F.2d 565, certiorari denied 348 U.S. 818, 75 S.Ct. 28, 99 L.Ed. 645.

Article VI of the Treaty, May 17, 1902, 32 Stat. 1890, in its pertinent portion, provides as follows:

"A fugitive criminal shall not be surrendered if the offense in respect of which his surrender is demanded be of a political character, or if he proves that the requisition for his surrender has, in fact, been made with a view to try or punish him for an offense of a political character."

The matter is before the court on a Petition for Writ of Habeas Corpus prior to any hearing by a Committing magistrate. The function of the court at this time on this hearing is not that of a Committing magistrate, Wright v. Henkel, 190 U.S. 40, 23 S.Ct. 781, 47 L.Ed. 948, and its power on a writ prior to such a hearing is confined to the limited and narrow question as to whether or not the Complaint states an extraditable offense under the treaty. Hence, this court cannot at this time consider that section of the treaty which provides that one shall not be surrendered "if he proves that the requisition for his surrender has, in fact, been made with a view to try or punish him for an offense of a political character." If the defendant can make such proof, the time and place to make it is at the hearing before the Committing magistrate. This court may now only consider whether or not the facts set forth on the face of the Complaint, together with the facts of which the court may take judicial notice, Jones v. United States, 1890, 137 U.S. 202, at page 214, 11 S.Ct. 80, 34 L.Ed. 691, make the offense in respect of which the surrender of petitioner is demanded one "of a political character."

The text of the Complaint differs from the Indictment, but it has attached to it a copy of the Indictment as it was filed in the demanding country. The text of the Indictment made in the demanding country controls over the text of the Complaint wherein there is any difference. And the whole Indictment must be read to determine whether or not within its four corners the conduct complained of was "of a political character."

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...