In re Extradition of HandanoviC

• Decision Date: 01 November 2011
• Docket Number: No. 3:11–mc–9097–ST.,3:11–mc–9097–ST.
• Citation: 829 F.Supp.2d 979
• Parties: In the Matter of the EXTRADITION OF Rasema HANDANOVIC.
• Court: U.S. District Court — District of Oregon

829 F.Supp.2d 979

In the Matter of the EXTRADITION OF Rasema HANDANOVIC.

No. 3:11–mc–9097–ST.

United States District Court, D. Oregon,Portland Division.

Nov. 1, 2011.

Lisa Hay, Assistant Federal Public Defender, Portland, OR, for Extradition of Rasema Handanovic.

AMENDED OPINION AND ORDER

STEWART, United States Magistrate Judge:

INTRODUCTION

On April 11, 2011, the United States, acting on behalf of the Government of the Republic of Bosnia and Herzegovina (“B & H”), commenced extradition proceedings against Rasema Handanovic, aka Zolja, aka Sammy Rasema Yetisen (“Handanovic”). Handanovic is a citizen of B & H and the United States and currently resides in Beaverton, Oregon. According to the Request for Extradition dated July 7, 2010, B & H seeks Handanovic:

for the purpose of prosecution and trial before the Court of Bosnia for probable cause that she committed the offence of “war crimes against civilians” under Article 173(1)(a) and (b) of the Criminal Code of Bosnia and Herzegovina and for probable cause that she committed the offence of “war crimes against prisoners of war” under Article 175(1)(a) and (b) of the Criminal Code of Bosnia and Herzegovina, in combination with Articles 180(1) and 29 of the Criminal Code of Bosnia and Herzegovina.

Extradition of “fugitives from a foreign country” is governed by 18 U.S.C. § 3184. Upon presentation of a complaint that a person within its jurisdiction has committed a crime in a foreign state covered by an existing treaty, the court may issue a warrant of apprehension for the person. Id. The person then appears before the court at a hearing “to the end that the evidence of criminality may be heard and considered.” Id. Extradition proceedings may be conducted by a magistrate judge. Id. At the hearing, the court must determine whether that evidence “is sufficient to sustain the charge under the provisions of the proper treaty or convention.” Id. The court's authority is limited to “ascertaining whether a crime is an extraditable offense under the relevant treaty and whether probable cause exists to sustain the charge.” Vo v. Benov, 447 F.3d 1235, 1237 (9th Cir.2006) (citations omitted). An extradition hearing does not decide guilt or innocence, but is analogous to a preliminary hearing to determine the existence of probable cause for a criminal charge. Mirchandani v. United States, 836 F.2d 1223, 1226 (9th Cir.1988). If the evidence is sufficient, then the court is required to certify the individual as extraditable to the Secretary of State. 18 U.S.C. § 3184. The Secretary of State ultimately decides whether to surrender the fugitive to the requesting country. 18 U.S.C. §§ 3186, 3196. A party can request a stay of extradition pending any decision by the Secretary of State.

Handanovic opposes extradition on multiple grounds. First, she argues that the government has failed to carry its burden of proving that a valid treaty exists between the United States and B & H. Second, even if there is a valid treaty, she argues that B & H has not met its obligations under the treaty to support its extradition request because: (1) the warrant of arrest is defective; (2) B & H has not officially “charged” Handanovic as required under the treaty; (3) B & H has not demonstrated that the alleged crimes fall within the statute of limitations as required by the treaty; and (4) B & H has neither demonstrated compliance with the dual criminality provisions of the treaty nor provided probable cause to believe that Handanovic committed each of the crimes charged.

This court held an extradition hearing on September 29, 2011, at which it received evidence in the form of documents and testimony offered by both parties. Based on the evidence and the arguments presented by the parties, this court concludes that Handanovic is extraditable, but only on the alleged offenses that constitute first degree murder.

DISCUSSION

I. Existence of Valid Extradition Treaty

“The advice and consent of the Senate is a constitutional prerequisite to a valid treaty, and the executive branch does not have the power to extradite alleged criminals absent a valid extradition treaty.” Then v. Melendez, 92 F.3d 851, 853 (9th Cir.1996) (citation omitted). An extradition treaty between the United States and the Kingdom of Servia (as Serbia was then transliterated) was signed on October 25, 1901, and entered into on June 12, 1902 (“1902 Treaty”). Gov't Ex. 4 (Tab 1) (McDonough Decl.), ¶ 2 (P1). Under the “state succession” doctrine, a successor state may be bound by the treaty obligations of a prior state. See, e.g., Sabatier v. Dabrowski, 586 F.2d 866, 868 (1st Cir.1978); Bassiouni, M. Cherif, International Extradition: United States Law and Practice (5th ed. 2007), pp. 154–61 (“a successor state is bound by the treaty obligations undertaken by the legal entity called the prior state”). Handanovic contends that B & H is not a successor state to the Kingdom of Servia and, therefore, is not subject to the 1902 Treaty.

In 1918, as a consequence of World War I, the Kingdom of Servia was expanded to form the new Kingdom of Serbs, Croats and Slovenes which included the territory of what is now B & H (formerly part of the Austro–Hungarian Empire). Gov't Ex. 10 (Dean Decl.), ¶ 4. In 1920, the Kingdom of Serbs, Croats and Slovenes was renamed the Kingdom of Yugoslavia, and renamed again in 1946 after the end of World War II as the Federal People's Republic of Yugoslavia. Id. In 1963, the Federal People's Republic of Yugoslavia was renamed the Socialist Federal Republic of Yugoslavia (“SFRY”) consisting of six constituent republics: Slovenia, Croatia, Serbia, Bosnia–Herzegovina, Montenegro, and Macedonia. Id. at ¶ 6. Beginning in 1991, the SFRY began to disintegrate as the result of civil wars, and B & H declared its independence from the SFRY in 1992. Id.

In 1992, the United States recognized B & H as an independent State, and the two countries established diplomatic relations. Id. at ¶ 7. In a letter of April 19, 1992, relating to the recognition of B & H, President Izetbegovic of B & H committed to the United States Secretary of State that “Bosnia is ready to fulfill the treaty and other obligations of the former SFRY.” Id. Since 1992, the United States and B & H have honored the 1902 Treaty by certifying extraditions on at least four occasions. Id. at ¶ 8.

In 1954, before B & H's independence, the Ninth Circuit ruled that the 1902 Treaty was “a present, valid and effective treaty between the United States and the Federal People's Republic of Yugoslavia.” Ivancevic v. Artukovic, 211 F.2d 565, 575 (9th Cir.1954). Applying the successor state doctrine, it concluded that the new nation of Yugoslavia “was effected with Serbia as its nucleus” and its “political successor,” even though the former and successor nations did not entirely overlap. Id. at 572. As a result, the executive branch's opinion that the 1902 Treaty remained in force “should at least weigh very heavily” in favor of such a finding. Id. at 574. Also see Artukovic v. Rison, 784 F.2d 1354, 1355 (9th Cir.1986) (“We have long held that the 1902 Treaty is valid and effective now even though Yugoslavia did not exist as a political unit at the time the treaty was signed.”).

More recently the Ninth Circuit applied the successor state doctrine by analyzing the “legal, geographical and historical continuity between British Singapore in 1931 and independent Singapore today.” Then, 92 F.3d at 853. Again it deferred to the executive branch that the valid treaty with the United Kingdom applies also to Singapore as a successor state.

Handanovic argues that, unlike the situation in those cases, B & H shares no legal, geographic and historical unity with the Kingdom of Servia. When the 1902 Treaty went into effect, B & H was part of the Austro–Hungarian Empire, not part of the Kingdom of Servia. The 1902 Treaty does not expressly cover other territories that are or will later become part of the Kingdom of Servia. Because the Kingdom of Servia is “twice-removed” from B & H, she contends that the ordinary justification for application of the successor state doctrine to B & H does not apply.

In support, she points to two United States government documents that do not acknowledge a valid treaty with B & H: (1) a March 17, 2010 Congressional Research Report which lists B & H as a country with which the United States “has no Bilateral Extradition Treaty;” and (2) a 2010 State Department publication of Treaties in Force which does not list a treaty with B & H. Handanovic Exs. 1 & 2 (dockets # 19–1 & # 19–2). She also observes that B & H is not among the countries listed in the Treaties of Extradition in the notes to 18 U.S.C. § 1381.

A close reading of the documents cited by Handanovic shows that they do not support her position. The Congressional Research Report contains a footnote acknowledging that the United States had an extradition treaty “with the former Yugoslavia prior to its breakup” and that “it has recognized at least some of the countries which were once part of Yugoslavia as successor nations,” citing cases involving Croatia and B & H. The Treaties in Force publication contains a similar note that B & H became an independent state on April 5, 1992, and refers the reader to Yugoslavia “[f]or agreements prior to the independent state of [B & H].” Finally, the list of countries listed in 18 U.S.C. § 1381 includes Yugoslavia with a footnote stating: “For the successor States of Yugoslavia, inquire of the Treaty Office of the United States Department of State.” Thus, the government has consistently taken the position that the 1902 Treaty with Yugoslavia applies to its successor states, including B & H.

Handanovic also misses the key point that when the Kingdom of Serbs, Croats, and Slovenes (later renamed the SFRY) came into existence, B & H was part of that new nation. It is undisputed that Yugoslavia succeeded to the Kingdom of Servia's 1902 Treaty...