Matter of Extradition of Artukovic

• Decision Date: 06 February 1986
• Docket Number: No. CV 84-8743-R(B),CV 85-3611-R.,CV 84-8743-R(B)
• Citation: 628 F. Supp. 1370
• Parties: In the Matter of the EXTRADITION OF Andrija ARTUKOVIC. Andrija ARTUKOVIC, Petitioner, v. Richard RISON, Warden, Respondent.
• Court: U.S. District Court — Central District of California

628 F. Supp. 1370

In the Matter of the EXTRADITION OF Andrija ARTUKOVIC Andrija ARTUKOVIC, Petitioner, v. Richard RISON, Warden, Respondent.

Nos. CV 84-8743-R(B), CV 85-3611-R.

United States District Court, C.D. California.

February 6, 1986.

COPYRIGHT MATERIAL OMITTED

Robert C. Bonner, U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Chief, Criminal Div. by David Nimmer, Asst. U.S. Atty., Los Angeles, Cal., and, Murray R. Stein, Associate Director, Office of Intern. Affairs, U.S. Dept. of Justice, and Ronnie L. Edelman, Trial Atty., Office of Special Investigations, U.S. Dept. of Justice, Washington, D.C., for U.S.

Gary B. Fleischman and Michael P. Dacquisto, Beverly Hills, Cal., and Ronald H. Bonaparte of Los Angeles, Cal., for respondent.

ORDER ADOPTING OPINION OF MAGISTRATE

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.

AMENDED OPINION

August 8, 1985

VOLNEY V. BROWN, Jr., United States Magistrate.

I

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 law—war 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. Artukovic, 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.

II

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?

III

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 Artukovic Minister of Interior Affairs and other ministers of the NDH ... Independent State of Croatia."

"I was also present by the end of 1941 at Kresimir's Trg when an autocade of trucks full of arrested partisans, Jews and others, in my estimate some seven hundred people among them many women and small children, was taken, as I overheard Artukovic order Lahovski, to Kerestinac, the collecting camp in the vicinity of Zagreb. Artukovic followed the autocade to Kerestinac and as I was his escort I heard when Andrija Artukovic told Lahovski that the back part of the autocade of trucks must be disposed of because it would be too much for the camp. So women, children and men were taken out of the trucks, in my estimate some 400-500 persons and by machine-gun fire were killed by ustashas at the order of Artukovic, while the others were taken to Kerestinec camp."

This is a first-person account of the killing of certainly entirely helpless prisoners, at the direct order of respondent and in his immediate presence.

Witness Bajro also states that he accompanied the respondent and others in the beginning of 1942 to where Ustashas were carrying out a military offensive against partisans. He says that in the village of Vrgin Most respondent, "after learning that in the houses women, children and men were locked, ordered the tanks towards these houses, to penetrate them and destroy them completely together with all men, women and children inside...."

Continuing his testimony, witness Bajro says:

"I remember well that while returning back we visited Vrgin Most again and that corporal Stilinovic informed chiefs Pivac Oreskovic and Saric that his whole unit was destroyed, as he said, in the vicinity of Vrgin Most in the fight with partisans and that some two hundred Ustashas died. When Artukovic heard that he ordered that all the population of the nearby villages be arrested and brought into the plain, which was done and many people, women and children were killed ... by machine-gun fire of German production. Machine-guns were `sharci' having 3000 bullets in a belt. I was also escorting Pavelic and Artukovic when they were visiting the site of Kozara because they wanted to see the positions at which some 500 to 600 ustashas had died in the battle with partisans. I know that on that occasion we drove to the monastery Moscenica, a very nice monastery, and Artukovic ordered Lahovski the commander of escorts to gather all civilian population from the houses, old ones, sick, women, children and men, to gather at least five thousand of them and to kill them all because five hundred ustashas have perished in the vicinity of the Moscenica monastery. This was done and a large number of civilian population from the nearby villages was gathered, mostly women and children and shot, some of them then and there close to the monastery and some of them were taken away and killed later on."

These deaths on the return to Vrgin Most, and of civilians gathered from the vicinity of the monastery Moscenica, were not in the course of military action, but of persons "arrested" or "gathered" and, therefore, not a military threat.

The pertinent testimony of witness Bajro concludes with these words:

"I remember well that at the beginning of the year 1943 I was escorting Pavelic and Artukovic when they went to Samobor and on that occasion we came to a castle where some several hundreds of partisans, men and women, were imprisoned I know well that the commander of operative groups of ustashas informed Artukovic and Pavelic that partisans were captured at Zumberk and Artukovic together with Pavelic ordered then, they both ordered, that all partisans imprisoned there, be killed which was done during that day and night and I have been present there. They were killed in such a way that they were taken to the field, tied and killed by machine-gun fire while some of them were passed over by tanks."

Respondent is now an older man, born on or about November 19,...