Basic v. Steck
| Decision Date | 09 July 2015 |
| Docket Number | CIVIL ACTION NO. 5:12-cv-274-KKC |
| Parties | AZRA BASIC, Petitioner, v. TIMOTHY STECK, acting United States Marshal, Eastern District of Kentucky, Respondent. |
| Court | U.S. District Court — Eastern District of Kentucky |
This matter is before the Court on a petition for writ of habeas corpus filed by Petitioner Azra Bašić. (DE 1).1 On July 27, 2012, the Magistrate Judge certified to the Secretary of State that Bašić is subject to extradition under 18 U.S.C. § 3184. Bašić filed the instant petition on August 28, 2012 challenging the Magistrate Judge's finding. For the following reasons, Bašić's petition for writ of habeas corpus will be denied.
Centuries of conquest created significant ethnic and religious diversity throughout the Balkan peninsula. Ethnic Bosnians, Croats, and Serbs all lived in—and claimed an ancestral right to—the same land; and, though the communist regime of the Socialist Federal Republic of Yugoslavia ("SFRY") united these peoples, its disintegration bred widespread fear that each ethnic group would not be protected. Carole Rogel, The Breakup of Yugoslavia and the War in Bosnia 44-48 (1998). This fear fueled an arms race amongterritorial and local defense units, usually divided along ethnic lines, because the Serbs used and manipulated the Yugoslav National Army ("YNA") to advance their interests. Id. at 23-24. Civil war commenced as SFRY's republics announced their independence. Id. at 25.
Ethnic cleansing was an explicit Serbian war policy. Id. at 33. Serbs harassed and terrorized civilians to encourage non-Serb inhabitants to flee; those who stayed were subjected to torture, rape, mutilation, and murder. Id. In response, "[t]he early victims adopted the aggressors' tactics in dealing with the enemy." Id. at 35.2
Azra "Issabel" Bašić was born on June 22, 1959 in Rijeka, Croatia, the daughter of a Croatian Catholic mother and Bosnian Muslim father. During the conflict arising from the disintegration of the Yugoslavia, it is undisputed that Bašić joined the Croatian army. It is also undisputed that on April 26, 1992, Croat groups entered the village of Čardak, in present-day Bosnia and Herzegovina ("Bosnia"), and took dozens of ethnic Serbian civilians hostage. Many of the hostages were taken to a former YNA Centre in the nearby town of Derventa.
Bašić is alleged to have served as a supervisor of the Croatian forces guarding the Serbian civilians at the YNA Centre in Derventa. Witnesses describe a horrific scene.3 TheSerbian hostages were tortured and humiliated, and some of the hostages were murdered. Germane to the present matter, witnesses allege that Bašić murdered Blagoje Đjuraš and tortured Mile Kuzmanović, Čedo Marić, and Sreten Jovanović.
On February 1, 2007, the Republic of Bosnia and Herzegovina submitted a formal request to the U.S. Department of State seeking the extradition of Azra Bašić. In support of its extradition request, Bosnia provided the formal "Criminal Charge" for Bašić, dated January 12, 1993; minutes from formal hearings under oath; sworn witness statements; and medical records. The United States Consul in Bosnia authenticated these documents.
In 2009, the United States requested additional information to verify Azra Bašić's identity as the alleged perpetrator of the crimes listed in the "Criminal Charge." On February 15, 2010, Bosnia submitted records from six witness interviews where each witness inspected a photo array and identified Bašić's photo as the perpetrator, and Bosnia supplied a "Special Report" prepared by local prosecutors providing additional information concerning Bašić's identity on April 7, 2010. The State Department authenticated both supplements.
On March 9, 2011, the United States filed a complaint, on behalf of the Bosnian government, seeking Bašić's extradition. The United States Marshals then arrested Bašić pursuant to a complaint-based arrest warrant. Bašić moved to dismiss the extraditioncomplaint arguing that no valid extradition treaty exists between the United States and Bosnia; that Bašić, as a United States citizen, could not be extradited under any alleged treaty between the United States and Bosnia; that her prosecution in Bosnia is time-barred; and that Bosnia did not provide a duly authenticated warrant of arrest.
The Magistrate Judge held numerous hearings and conferences before filing an Opinion and Order granting the Government's application for a certificate of extraditability. In re Extradition of Azra Basic, No. 5:11-5002, 2012 WL 3067466 (E.D. Ky. July 27, 2012). The Magistrate Judge found that the 1902 extradition treaty between the United States and the Kingdom of Serbia applied and that United States citizens could be extradited under the extradition treaty. Id., at *1 n.6. He also concluded that Bašić's prosecution was not time-barred, that Bosnia provided the "functional equivalent" of a duly authenticated warrant of arrest, and that the evidence provided probable cause to believe that Bašić murdered Blagoje Đjuraš and tortured Mile Kuzmanović and Čedo Marić. Id., at *7, 10, 14-15.
On August 28, 2012, Bašić filed a petition for a writ of habeas corpus. Bašić challenges the certificate of extraditability on six grounds: (1) there is no valid extradition treaty between the United States and Bosnia; (2) the 1902 extradition treaty between the United States and the Kingdom of Serbia prevents extradition of United States citizens; (3) the applicable statute of limitations has expired; (4) Bosnia did not produce a valid warrant of arrest; (5) there is not probable cause to believe each element of the crimes for which extradition is requested; and (6) the rule of specialty prohibits extradition. The Court will address each argument in turn, but the Court finds that Bašić's petition must be denied.
Bašić now files this petition for writ of habeas corpus claiming that, by means of the extradition proceedings, she has been placed "in custody in violation of the Constitution or law or treaties of the United States." 28 U.S.C. § 2241(c)(3). Habeas corpus relief from an extradition certification is confined to three areas of inquiry: "[(1)] whether the magistrate [judge] had jurisdiction; [(2)] whether the offense charged is within the treaty; and, [(3)] by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty." Fernandez v. Phillips, 268 U.S. 311, 312 (1925). Habeas corpus is not a writ of error, and is "not a means for rehearing what the magistrate has already decided." Id.
Factual findings are reviewed for clear error; however, legal determinations are reviewed de novo. Skaftouros v. United States, 667 F.3d 144, 157 (2d Cir. 2011). Additionally, the principles of international comity and judicial modesty caution against analyzing foreign law and foreign criminal procedure, except to ensure that the United States and the requesting country satisfy the requirements of the extradition statute. Id. at 156.
There are four elements of a magistrate's jurisdiction to certify an individual as subject to extradition, including: (1) a treaty or convention for extradition between the United States and the requesting country; (2) the requesting country must submit a complaint under oath; (3) the complaint must charge a person living within the magistrate's territorial jurisdiction; and, (4) the complaint must charge that person with committing one or more of the crimes enumerated under the treaty or convention. 18 U.S.C. § 3184; see alsoDemjanjuk v. Petrovsky, 776 F.2d 571, 579-83 (6th Cir. 1985) (), vacated, 10 F.3d 338 (6th Cir. 1993) ( prosecutorial misconduct).
Bašić contends that there is not a valid extradition treaty between the United States and Bosnia. Bosnia, in making its extradition request, relied upon an extradition treaty ratified in 1902 by the United States and the Kingdom of Serbia ("the Treaty").4 Bašić argues that the Treaty does not apply because Bosnia is not a "successor state" to the Kingdom of Serbia and Bosnia has not demonstrated that it intends to be bound by the Treaty.
Bašić's claim relies upon a number of technical arguments. Bašić notes that Bosnia was not affiliated with Serbia at the time the treaty was enacted or at the time the alleged acts occurred. Bašić also asserts that, during the Yugoslavia's communist regime, Bosnia and Serbia were not united but were "unitary republics." Bašić further remarks that Bosnia's constitution divorces itself from Yugoslavia; thus Bašić claims that Bosnia is a "breakaway" from, not a "successor" to, Yugoslavia. Finally, Bašić contends that the Treaty does not apply because Bosnia has not demonstrated that it intends to be mutually bound by the Treaty. The Court finds these arguments in error and that the Treaty applies.5
"[T]he question whether power remains in a foreign state to carry out its treaty obligations is in its nature political and not judicial, and . . . the courts ought not to interfere with the conclusions of the political department in that regard." Terlinden v. Ames, 184 U.S. 270, 288 (1902) (). In Terlinden, the Supreme Court squarely held that, in addressing whether an extradition treaty remains in force, courts should defer to the political branches. See also Meza v. United States Att'y Gen., 693 F.3d 1350, 1358 (11th Cir. 2012) (...
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