Serbia v Ganic

JurisdictionMalaysia
JudgeWorkman
Judgment Date27 July 2010
CourtMagistrates Court (Malaysia)
Date27 July 2010

England, City of Westminster Magistrates' Court.

(Workman, Senior District Judge)

Government of the Republic of Serbia
and
Gani1

Extradition Extradition Act 2003 Whether alleged conduct amounting to extraditable offence under Section 137(3) Extraneous considerations Whether extradition barred under Sections 81 or 82 Whether abuse of process

International criminal law War crimes Prosecution Former Yugoslavia Limits on national prosecutions International Criminal Tribunal for the former Yugoslavia

International tribunals International Criminal Tribunal for the former Yugoslavia Prosecutor Decision that no basis for charging individual Whether same individual could be charged before national court

Relationship of international law and municipal law Geneva Conventions Geneva Conventions Act 1957 Criminal Code of the Socialist Federal Republic of Yugoslavia 1977 Extradition Act 2003 Serbian domestic law

War and armed conflict International armed conflict Geneva Conventions on the law of armed conflict War crimes Protection of medical personnel and facilities The law of England

Summary:2The facts:On 3 March 1992, the Republic of Bosnia and Herzegovina (BiH), one of the constituent republics of the Socialist Federal Republic of Yugoslavia (SFRY), issued a declaration of independence which was challenged by Serb members of the population of BiH. An armed conflict ensued during which the city of Sarajevo was besieged by Serb forces. President Izetbegovic of the BiH was arrested and detained at Sarajevo airport. In his absence, the State was under the authority of the Presidency, which included at least six Vice-Presidents, one of whom was Dr Gani (the defendant). During the fighting in Sarajevo an incident occurred on 23 May

1992 in which medical facilities of the army (the JNA3 of the Federal Republic of Yugoslavia (the FRY, a successor State of the SFRY consisting of two of the republics which had made up the SFRY)) were attacked

Following the end of the armed conflicts in the former Yugoslavia, Serbia, BiH and Croatia entered into the Rome Agreement,4 which regulated the arrest and indictment by the authorities of the three States of alleged perpetrators of war crimes. Before a person could be arrested on suspicion of war crimes, local prosecutors had to submit case files to the International Criminal Tribunal for the former Yugoslavia (ICTY) for assessment. Until the Agreement expired in 2004, serious violations of international humanitarian law committed during the conflicts could be prosecuted only if the ICTY Prosecutor's Office had deemed proceedings consistent with international legal standards.

Serbia provided a file of evidence to the ICTY with respect to the events of 2 and 3 May 1992. On 17 June 2003, the ICTY Prosecutor's Office concluded that there was insufficient evidence to provide reasonable grounds for believing that the defendant had committed any serious violations of international humanitarian law. In 2002, a War Crimes Chamber of the State Court of BiH had been established, with a British national as an International Prosecutor for war crimes. That Prosecutor also investigated the defendant's activities and concluded that there was no evidence to connect him with the commission of any war crime. In late 2008, the ICTY returned its file to Serbia. On 29 December 2008, noting that the defendant was in the United Kingdom, Serbia commenced proceedings in the District Court, alleging that the Serbian War Crimes Prosecutor had fresh evidence with respect to the defendant's conduct on 2 and 3 May 1992.

On 1 March 2010, the defendant was arrested in the United Kingdom under a provisional warrant. The Government of Serbia requested his extradition under the Extradition Act 2003 (the 2003 Act), alleging that:

On 2 May 1992, in the absence of the President, the defendant, in the capacity of Acting President of the Presidency of Bosnia and Herzegovina, personally commanded an attack on the military hospital, the JNA Officers' Club and a column of medical vehicles. On 3 May 1992 is it [sic] alleged that the defendant personally issued the command to start an attack on [a] JNA column in Dobroviljacka Street (Volunteers Street).

The defendant claimed that: the extradition request was an abuse of process on the grounds that the conduct alleged did not amount to an extraditable

offence under Section 137(3) of the 2003 Act;5 extradition was barred under Section 81(a) and (b) of the 2003 Act on the grounds that the request was made to prosecute or punish on account of race, religion, nationality or political opinions, and under Section 82 by reason of passage of time; he was entitled to functional immunity; and extradition would be incompatible with his Article 2, 3, 6 and 8 rights under the European Convention on Human Rights, 1950

Held:No extradition order was made. The defendant was discharged.

(1) It was clear that the events in Sarajevo on 2 and 3 May 1992 occurred in the course of an international armed conflict. For the purposes of these proceedings, it was accepted that the Geneva Conventions applied (paras. 910).

(2) The requirement of double criminality was satisfied. An attack on a military hospital and medical vehicles, and upon ambulances within a military column, could amount to grave breaches of the Geneva Conventions. At the relevant time, that conduct was criminal under the Criminal Code of the Socialist Federal Republic of Yugoslavia 19776, and, in the United Kingdom, under the Geneva Conventions Act 1957 (paras. 36, 1113).

(3) The timing of the proceedings was relevant and indicated an abuse of process. At that time Serbia was anxious to proceed with its application to join the European Union, which involved its adoption of the Srebrenica Declaration as proof that it had distanced itself from the Miloevic regime. That Declaration would lack weight if it were to be criticized by BiH. A reliable witness had testified that Serbia had implied to BiH that it would not pursue prosecution if BiH accepted the Declaration and praised its adoption in its disputed form. Several highly reliable witnesses testified that the prosecution was almost certainly politically motivated, and that it would be impossible for the defendant to be given a fair trial in Serbia (paras. 1825).

(4) The pursuit of proceedings after two prior thorough investigations had concluded that the defendant had no case to answer also indicated an abuse of process. While investigations by other prosecutors did not necessarily preclude a third prosecutor from reaching a different conclusion, or in itself demonstrate an abuse of process, it was not sufficient for the Serbian War Crimes Prosecutor merely to state that he had taken a different view on the evidence. Considerable weight was placed on the ICTY's conclusions in particular, noting that it had been established as an independent international organization with responsibility for dealing with alleged war crimes so that defendants were not tried by their enemies. It was necessary therefore to consider whether there was any significant fresh evidence available to the Serbian War Crimes

Prosecutor that had not been available to the first two Prosecutors (paras. 14, 18, 334)

(5) Serbia had issued proceedings only days after the Serbian War Crimes Prosecutor had received the defendant's file. The decision to issue proceedings had therefore been made solely on the evidence available to the first two Prosecutors. Further, three of the five witnesses upon whose particularly striking testimonies Serbia was purportedly proceeding had been interviewed by the ICTY, and all five had been interviewed by the International Prosecutor in BiH; he had concluded that one of the two witnesses not interviewed by the ICTY offered no new information, and that the second was highly unreliable. No new evidence was provided which could be described as striking or substantial (paras. 356).

(6) In the absence of any evidence which had not been available in the two previous investigations, there were only two possible explanations for the applicant's conduct: either the Serbian War Crimes Prosecutors Office was incompetent, or the prosecution was motivated by politics, race or religion. As the Serbian War Crimes Prosecutors Office was far from incompetent, the necessary conclusion was that prosecution was being pursued for improper reasons, constituting an abuse of process. Extradition was thus barred by reason of extraneous considerations under Section 81(a) and (b) of the Act (paras. 3941).

The following is the text of the judgment of the Court:

1. In these proceedings the Government of the Republic of Serbia seeks the extradition of Dr Ejup Gani in respect of offences said to have been committed in Bosnia in May 1992. In the course of the six-day hearing I have received a substantial amount of evidential material amounting to some 20 lever arch files. I am greatly indebted to Counsel both for the Government and for the defendant for their various schedules and skeleton arguments which have guided me through that material. I have also considered the evidence of 17 witnesses of which six were called to give evidence personally on behalf of the defence and one in rebuttal on behalf of the Government.

The proceedings are brought under the Extradition Act 2003 and Serbia is a Part II Territory. It is an accusation request certified by the Secretary of State on 12 April 2010, the defendant having been arrested under a provisional warrant and first appearing...

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