Artukovic v Rison
| Date | 06 February 1986 |
| Court | U.S. Court of Appeals — Ninth Circuit |
(Brown, United States Magistrate)
(Real, Chief Judge)
(Wallace, Pregerson and Kozinski, Circuit Judges)
Extradition Political offence Definition Requirement that crimes be reasonably incidental to political upheaval Murders allegedly committed by member of puppet government in occupied Yugoslavia Crimes allegedly motivated by personal gain and religious or racial hatred Whether capable of being political offences
Extradition Procedure Second application for extradition Doctrine of res judicata Whether applicable to extradition proceedings Appeal procedure
State succession Treaties Yugoslavia Whether successor to treaty obligations of Serbia The law of the United States
Summary: The facts:Yugoslavia sought the extradition of Artukovic on charges arising out of his conduct while he was a minister in the Government of Croatia, a regime established by the German authorities in occupied Yugoslavia during the Second World War. The indictment on which the request for extradition was based charged Artukovic with criminal offence against humanity and international lawwar crime committed against the civilian population. The indictment amended and incorporated an earlier indictment of 1951 for murder in respect of which extradition had been refused.1 The request for extradition was made under the Treaty of Extradition between the United States and Servia, 1901 (ratified 1902).
Held (by the United States Magistrate):An amended certificate of extraditability was issued in respect of several charges of murder.
(1) Although much of the evidence presented raised only a suspicion that the respondent had taken part in murders, there was sufficient evidence to warrant his extradition on certain specific murder charges. The evidence also showed that, although an old man, the respondent had sufficient mental competence to assist in the preparation of his defence (pp. 3879 and 3913).
(2) The principle of res judicata was not applicable to international extradition proceedings, so that the Court was not required to dismiss the present application merely because an earlier request for extradition had been rejected on the evidence in 1959 (p. 389).
(3) The respondent's right to due process had not been violated by delay. The United States Government and its agents had not been guilty of any wrongful conduct. The respondent could raise any questions about possible unfairness arising from the long time lapse since the alleged offences were committed in his petition to the Secretary of State and, if necessary, in the Yugoslav courts (pp. 38990).
(4) The alleged offences did not fall within the political offence exception. Although they were alleged to have occurred during a period of political upheaval in Yugoslavia, they had not been reasonably incidental to that upheaval, since the record suggested that they had been committed for reasons of personal gain, racial hatred or impermissible vengeance on captured enemy soldiers. The massacre of part of a State's population as part of a wider political scheme was not a crime of a political character (p. 390).
Artukovic petitioned for habeas corpus.
Held (by the District Court):The amended opinion of the magistrate correctly stated the law and was adopted by the Court. The petition for habeas corpus was denied.
Artukovic moved to stay his extradition pending the hearing of an appeal against the decision of the District Court.
Held (by the Court of Appeals):The motion for a stay was dismissed.
(1) Although Artukovic had shown a possibility of irreparable injury if he was extradited while his appeal was still pending, none of the legal arguments raised in his appeal presented a serious legal question and the balance of hardships did not tip heavily in Artukovic's favour (p. 395).
(2) The 1902 Treaty was still in effect even though Yugoslavia had not existed at the date on which it was concluded (p. 395).
(3) The crime for which extradition was sought was murder, a crime which fell within the Treaty. The reference to war crimes in the indictment against Artukovic did not take the request for extradition outside the scope of the Treaty (p. 395).
(4) The doctrine of res judicata did not apply to extradition proceedings (p. 395).
(5) There was sufficient evidence to justify extradition (p. 395).
(6) The public interest favoured compliance with the extradition request (p. 395).
The text of the order of the Court of Appeals commences at p. 394. The text of the order of the District Court, which incorporates the amended opinion of the United States Magistrate, commences on the following page.
REAL, Chief Judge.
This matter is before the court upon a Writ of Habeas Corpus in the nature of a review of the decision of Magistrate Volney v. Brown, Jr., ordering extradition of petitioner to Yugoslavia to answer charges of murder.
The court has reviewed the entire record in this matter, has considered all of the evidence and arguments submitted by the parties in the extradition hearing and with this Petition for Writ of Habeas Corpus.
IT IS ORDERED the court adopts the opinion heretofore filed by Magistrate Brown on all issues presented to him during the extradition hearing. The opinion of Magistrate Brown correctly states the law and is supported by evidence presented during the many hearings held by the magistrate. The opinion adopted is specifically that Amended Opinion filed August 9, 1985 and now instructs the Clerk to enter orders made therein as the Order of this court.
The Petition for Writ of Habeas Corpus adds nothing to the review function of this court on the extradition question.
The petition is denied.
August 8, 1985
VOLNEY V. BROWN, Jr., United States Magistrate.
The Honorable Borislav Krajina, Federal Secretary for Justice of the Federal Socialist Republic of Yugoslavia [Yugoslavia], by request dated July 19, 1984, sought the extradition of Andrija Artukovic [respondent] for prosecution in the District Court of Zagreb, pursuant to an indictment of February 29, 1984. The indictment charged criminal offence against humanity and international lawwar crime committed against the civilian population [war crimes] proscribed by Yugoslavian Article 142, recently enacted. The 1984 indictment amended and incorporated an indictment of September 4, 1951, charging murder in violation of Article 135(2) then in force, of which indictment this Court takes judicial notice from its own records in Karadzole v. ArtukovicUNKUNKUNKUNKUNKUNK, 170 F.Supp. 383 (S.D. Calif. 1959).1
Pursuant to a complaint for extradition filed on November 14, 1984, respondent was arrested and held without bail. The complaint alleges that he is duly and legally charged with murder, in violation of the laws of and in the jurisdiction of the Government of Yugoslavia; that murder is among the offenses enumerated in Article II of the Treaty of Extradition between the United States and Servia (now Yugoslavia) of May 17, 1902, 32 Stat. 1890 [Treaty], which is still in full force and effect;2 that the offense charged is a proper ground for this Court to order extradition pursuant to Title 18, United States Code, Section 3184; and, that respondent should therefore be surrendered to competent authorities of Yugoslavia.
This Magistrate has jurisdiction conferred directly by the Treaty, by 18 U.S.C. 3184, and by the Local Rules of the United States District Court for the Central District of California.
The following questions must be answered:
1. Does respondent possess the requisite mental competence?
2. Is the action barred by the doctrine of res judicata?
3. Was due process violated by excessive delay in refiling for extradition?
4. Is evidence offered by the Government admissible?
5. Is the political character defense applicable?
6. Is the charging document specific?
The facts necessary for a determination of this matter are as follows:
During World War II, the Germans and Italians invaded Yugoslavia. On April 10, 1941, at the behest of the Ustasha, a political organization which was or became armed, the Axis permitted the creation of the Independent State of Croatia. Respondent became Minister of Interior and held other high offices. There was conflict between Croatians, Serbians, Communists, Jews, Christians (Orthodox and Roman Catholic), Moslems and others, and these groups variously fought, persecuted each other and/or fled. Affidavits in evidence show that tens of thousands of atrocities were committed.
Among the older documents in evidence is the affidavit of Franjo Truhar, dated April 25, 1952 (Excerpts, Tab 10, pp. 65 et seq.). He is a self-described Croat, who says the Ustashas made him Chief of Police in Zemun in April and May, 1941. It is his testimony that Jesa Vidic, a former national delegate, was
imprisoned and sent at the request of Artukovic to the Danica camp, where he was interned for a certain time. His wife, Olga Vidic, came to see me, and that was in July 1941, with a petition addressed to Minister Artukovic in which she offered to cede 150 Jutros [acres] of land if he permitted her husband to resettle in Serbia. I brought this request in person to Artukovic in Zagreb, and handed it to him, to which he answered me: What did you bring this petition to me for, I will kill him and take, not 150, but 300 Jutros of land. Later Artukovic himself sent the order for Dr. JESA VIDIC to be killed, which was also carried out, and all of the land was taken and given to Ustasha Stjepan Vinek in Sremska Mitrovica.
A new affidavit in evidence is that of Avdic Bajro, dated July 6, 1984 (Excerpts, Tab 11, pp. 74 et seq.) Born in 1924, this witness says that, following training, in November, 1941, he was ordered into the motorized unit of the state escort service to escort leader Pavelic, Andrija...
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