In re Nezirovic

Decision Date16 September 2013
Docket NumberCivil Action No.: 7:12MC39
CourtU.S. District Court — Western District of Virginia

By: Hon. Robert S. Ballou

United States Magistrate Judge


The Government of Bosnia and Herzegovina ("Bosnia") has requested the extradition of Almaz Nezirovic ("Nezirovic"), pursuant to the Extradition Treaty between the United States of America and the Kingdom of Servia (as Serbia was then translated) for the Mutual Extradition of Fugitives from Justice, signed at Belgrade October 25, 1901 and entered into force June 12, 1902 (the "Extradition Treaty") and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, done at New York December 10, 1984 and entered into force June 26, 1987 (for the United States, November 20, 1994), S. Treaty Doc. No. 100-200, 1465 U.N.T.S. 85 (the "CAT"). After considering the full record, the parties' briefs, the relevant treaty and conventions, and the applicable standards, the court CERTIFIES Nezirovic as subject to extradition under 18 U.S.C. § 3184.


On July 16, 2012, the United States, on behalf of the government of Bosnia, filed a complaint to extradite Nezirovic pursuant to the Extradition Treaty and the CAT. Nezirovic is wanted by Bosnia for trial on the charge of War Crimes against Civilians in violation of Article142, paragraph 1 of the Criminal Code of the former Socialist Federal Republic of Yugoslavia (the "SFRY"), which was effective at the time of the charged crime and remains in effect in present day Bosnia.

Nezirovic is a native and citizen of Bosnia, who entered the United States in 1997 as a refugee. These charges arise out actions that allegedly occurred from April to July of 1992, during the Bosnian War. In March 1992, Nezirovic's hometown of Derventa was attacked by Serbian troops. In April 1992, Nezirovic, a Bosniak, joined a paramilitary group, the HVO, and became a prison guard at the Rabic prison camp in Derventa. Bosnia charges that while serving in that capacity, Nezirovic committed war crimes against civilians, more specifically, beating, humiliating, and traumatizing unarmed civilian prisoners causing severe personal injury.

On January 12, 1993, the Doboj Police Department of Bosnia issued a Criminal Report against 127 persons, including Nezirovic, charging him with the criminal offense of War Crimes against Civilians under Article 142 of the adopted Criminal Code of the SFRY. Specifically, the Criminal Report alleged the following as to Nezirovic:

[t]he reported Almaz Nezirovic, in the period from 4 to 6 months of 1992 in Derventa, as a member of the HVO or the BiH TO took part in mass unlawful arrests and detention of persons of Serb ethnicity. He especially stood out in physical abuse and in May 1992 in the Rabic camp on several occasions he forced detainees to place three fingers on the table and then with other reported persons he would beat them with a baton on their fingers and on other parts of their bodies, and on that occasion he inflicted serious bodily injuries on Boro Markovic, son of Nedo, Milorad Gunjevic, Milo Kuzmanovic, Luka Patkovic, Dr. Zeljko Stajcic, Xdravko Vidovic, Milovan Adzic and Ilija Cuk.
On 30 May 1992, together with Angijad Jusanovic the reported person took part in beating Dr. Zelijko Stajcic with a baton all over his body, on which occasion he sustained a serious bodily injury consisting of a left arm calvicular fracture.

A warrant for Nezirovic's arrest was issued in Bosnia on May 28, 2003, by the Investigative Judge of the District Court in Doboj. On July 9, 2012, Bosnia submitted a formal request to the United States Department of State, for Nezirovic's arrest, extradition andsurrender. On July 30, 2012, Bosnia provided supplemental documentation in support of its application for the extradition of Nezirovic, including statements of twenty-one witnesses alleging that Nezirovic committed acts of torture, including beating detained civilians using his arms and legs, his rifle, batons or sticks; threatening prisoners with death; and humiliating the prisoners by forcing them to remove their clothing and crawl on the ground, to put their noses in others' anuses, and to eat grass on which others had urinated.

Nezirovic was arrested on a complaint for provisional arrest pending extradition on July 17, 2012, and is in custody within this District pending final disposition of this matter by the Secretary of State. On September 7, 2012, this court conducted an evidentiary hearing. The court granted the parties leave to file supplemental briefs on the legal issues presented at the evidentiary hearing, and on November 19, 2012, the court held a final oral argument hearing. The request for certification is now ripe for decision.

A. Procedural Requirements:

The extradition of a fugitive from the United States to Bosnia is governed by the provisions of the federal extradition statutes, 18 U.S.C. §§ 3181 et seq., and the Extradition Treaty between the United States and Bosnia. Every extradition request requires the court to find that 1) the judicial officer has jurisdiction to conduct an extradition proceeding; 2) the court has jurisdiction over the fugitive; 3) the person before the court is the fugitive named in the request for extradition; 4) there is an extradition treaty in full force and effect; 5) the crimes for which surrender is requested are covered by that treaty; and 6) there is competent legal evidence to support the finding of probable cause as to each charge for which extradition is sought. Eain v. Wilkes, 641 F.2d 504, 508 (7th Cir.1981); In re Rodriguez Ortiz, 444 F. Supp. 2d 876, 881-82(N.D. Ill. 2006) (citing Fernandez v. Phillips, 268 U.S. 311, 312, 45 S. Ct. 541, 69 L. Ed. 970 (1925); In re Extradition of Fulgencio Garcia, 188 F. Supp. 2d 921, 925 (N.D.Ill.2002)). Upon finding sufficient evidence to support extraditing the fugitive, the court then certifies him as extraditable to the Secretary of State, who ultimately decides whether to surrender him to the requesting country. 18 U.S.C. §§ 3184, 3186, 3196.

Nezirovic raises three challenges to his extradition. First, Nezirovic contends that the Extradition Treaty does not permit his extradition because the charges against him have become barred by the statute of limitations. Second, Nezirovic argues that his actions amount to political offenses for which extradition is not appropriate. Finally, Nezirovic asserts that Bosnia seeks his extradition only to prosecute him for political purposes. The court has considered these claims, as well as each factor required under § 3184, and concludes that sufficient cause exists to certify Nezirovic as extraditable to the Secretary of State.

1. Jurisdiction of the Judicial Officer

The extradition statutes expressly allow federal magistrate judges to hear and decide extradition cases if "authorized to do so by a court of the United States." 18 U.S.C. § 1384. The jurisdiction of federal magistrate judges in extradition proceedings has been repeatedly upheld as being consistent with Article III of the Constitution. In re Rodriguez Ortiz, 444 F. Supp. 2d at 882 (citing Ward v. Rutherford, 921 F.2d 286, 289 (D.C. Cir.1990)). See DeSilva v. DiLeonardi, 181 F.3d 865, 867 (7th Cir. 1999)("Congress has authorized magistrate judges to act on behalf of the district court in authorizing extradition."); Austin v. Healey, 5 F.3d 598, 601-02 (2nd Cir. 1993) (finding that the magistrate judge had authority to conduct the extradition hearing withoutany specific delegation of responsibility in the case). Thus, this court is authorized to conduct the extradition proceeding.1

2. Jurisdiction over the Fugitive

This court has jurisdiction in an extradition proceeding over any person found within the jurisdiction of the court. 18 U.S.C. § 3184. Nezirovic was found in the Western District of Virginia and is currently in federal custody here; thus, this court has the requisite personal jurisdiction to make an extradition determination.

3. Identity of the Fugitive

Nezirovic does not dispute that he is the Almaz Nezirovic sought by Bosnia and named in the Complaint filed in this court. Nezirovic's Mot. to Dismiss, p. 11 (Dkt. No. 19). Based upon the identifiers contained in the extradition request and supporting documents, and the evidence submitted at the hearing, I find that Nezirovic is the person named in the Compliant and sought for extradition to Bosnia.

4. Existence of Extradition Treaty

Extradition is proper only where there is a treaty in force between the requesting country and the United States. 18 U.S.C. §§ 3181(a), 3184. See also In re Rodriguez Ortiz, 444 F. Supp. 2d at 882. The court finds that the two relevant instruments in this case, the Extradition Treaty between the United States and Bosnia, and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "CAT"), are both in full force and effect between the United States and Bosnia.

a. The Treaty Applies Under State Succession Doctrine

The United States signed the Extradition Treaty with the Kingdom of Servia (as Serbia was then translated) on October 25, 1901, which became effective and entered into force on June 12, 1902. Gov't Ex. 1 (Dkt. No. 8-1). The Extradition Treaty applies to Bosnia under the "state succession" doctrine, as a successor state to the formal Federal Peoples' Republic of Yugoslavia, which was, in turn, a successor state to the Kingdom of Serbia. Sacirbey v. Guccione, 589 F.3d 52, 56 n.8 (2nd Cir. 2009). Courts consistently recognize state succession with regard to extradition treaties, and will presume state succession unless the successor state explicitly rejects a given treaty. Arambasic v. Ashcroft, 403 F. Supp. 2d 951, 955 (D.S.D. 2005). Nezirovic presented no evidence that Bosnia has rejected the treaty...

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