Croatia v Snedden [Australia, High Court.]

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: French CJ,Gummow,Hayne,Heydon,Crennan,Kiefel,Bell JJ
• Judgment Date: 30 March 2010
• Date: 30 March 2010

([2010] HCA 14)

Australia, High Court.

(French CJ; Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ)

Republic of Croatia

and

Snedden1

Extradition Eligibility for surrender Risk of discrimination against respondent at trial Extradition objection Necessary causal connection between potential punishment, detention or restriction of liberty and person's political opinions Whether ineligibility for mitigating factors in sentencing is punishment Extradition Act 1988 (Cth)

War and armed conflict War crimes Armed conflict between Croatia and Serbia Extradition The law of Australia

summary:3The facts:The Republic of Croatia (the appellant) alleged that Daniel Snedden (the respondent) had committed war crimes during the CroatiaSerbia armed conflict in the early 1990s and sought his extradition from Australia. The respondent had been born in what was then the Socialist Federal Republic of Yugoslavia in 1954, had migrated to Australia in 1969 and had become an Australian citizen in 1975. At the time of the request for his extradition, the respondent was also a citizen of Serbia.

The request for extradition alleged that the respondent had been the commander of a Special Purpose Unit of Serbian paramilitary troops during the conflict and had committed various war crimes during that period. It was alleged that the respondent had committed offences contrary to Articles 120 and 122 of the Basic Penal Code of the Republic of Croatia. The appellant alleged that the respondent had mistreated and tortured Croatian prisoners of war personally and had been responsible, as commander of the unit, for such conduct. It was also alleged that he had planned and executed an attack upon civilian objects.

Section 19 of the Extradition Act required a magistrate to determine the eligibility for surrender of a person whose extradition had been requested by an extradition country. Section 19(2) established the necessary conditions for eligibility for surrender and provided:

The term extradition objection was defined in Section 7 of the Extradition Act which provided:

Meaning of extradition objection

The respondent argued that Croatian courts considered service in the Croatian military as a mitigating factor when determining sentence. The respondent contended that this mitigating factor was not available to him and so he was likely to be subject to a longer sentence if found guilty of the offences. Therefore the respondent argued that an extradition objection applied to him since it was likely that he would be punished on the basis of his political opinions.

The respondent unsuccessfully challenged the constitutional validity of part of the Extradition Act in the High Court of Australia in Vasiljkovic v. Commonwealth of Australia and OthersUNK.4 On 12 April 2007, a magistrate of the Local Court of New South Wales determined that the respondent was eligible for extradition pursuant to s 19(9) of the Extradition Act. The respondent unsuccessfully sought review of this determination in the Federal Court of Australia pursuant to s 21 of the Extradition Act. The respondent successfully appealed to the Full Court of the Federal Court of Australia and the order of the magistrate was overturned. The appellant was granted special leave to appeal to the High Court of Australia on 12 February 2010.

Held:The appeal was allowed.

(1) (Per French CJ; Gummow, Hayne, Crennan, Kiefel and Bell JJ; Heydon J not deciding) The mitigating factor of having served in the Croatian military was not applied to individuals on the basis of their political opinions but was of general applicability. The respondent had failed to demonstrate a necessary causal link between his political opinions and the application of the mitigating factor (paras. 225 and 738).

(2) (Per Gummow, Hayne, Crennan, Kiefel and Bell JJ; French CJ and Heydon J not deciding) A determination that an individual is not eligible for a mitigating factor at sentence was not punishment (paras. 7981).

Per Heydon J: There was insufficient evidence to satisfy the Court that there was a trend in Croatian courts to consider military service as a mitigating factor (para. 102).

The following is the text of the judgments delivered in the Court:

[622]French CJ

Introduction

1. The respondent was born in the former Yugoslavia in 1954 and migrated to Australia in 1969, taking up Australian citizenship in 1975. He was named Dragan Vasiljkovic at birth but changed his name to Daniel Snedden when assuming Australian citizenship. He is said to have been the commander of a Special Purpose Unit of Serbian paramilitary troops during the CroatianSerbian conflict in the early 1990s following the fall of communism in Yugoslavia.1

2. On 20 January 2006, the Republic of Croatia (the Republic) issued a request to the Australian Government for the extradition of the respondent to Croatia. The respondent's extradition was sought so that he could be prosecuted for offences against Arts. 120 and 122 of the Basic Penal Code of the Republic of Croatia. The Republic alleged, in its request, that during June and July 1991 in Knin the respondent did nothing to prevent members of the Unit who were his subordinates from mistreating captured members of the Croatian army and police and mistreated one such person himself. It also alleged that, in February 1993, he commanded subordinate members of the Unit to interrogate and then execute two Croatian prisoners of war. Those allegations formed the basis of the claimed contraventions of Art. 122. In relation to the alleged offence against Art. 120, he is said to have commanded members of the Special Purpose Unit and a tank unit of the Yugoslav People's Army to fire on a church and a school.

3. In proceedings before a magistrate under s 19 of the Extradition Act 1988 (Cth) to determine his eligibility for surrender, the respondent contended, inter alia, that there were substantial grounds for believing that if surrendered to Croatia he might be punished by reason of his

political opinions. That ground is a defined extradition objection under s 7(c) of the Extradition Act. If it is made out in proceedings under s 19, the magistrate may not determine that the person raising the objection is eligible for surrender.

4. The respondent failed to satisfy the magistrate that there were substantial grounds for believing that any extradition objection existed. The magistrate determined that he was eligible for extradition. The respondent failed again in review proceedings before a judge of the Federal Court pursuant to s 21 of the Extradition Act.2 However, on 2 September 2009 the Full Court of the Federal Court of Australia found an extradition objection made out on the basis that, in sentencing for offences of the kind alleged against the respondent, prior service in the Croatian armed forces was treated by Croatian courts as a mitigating factor and was ipso facto not available to those who had fought on the Serbian side of the conflict. It held there were therefore substantial grounds for believing that the respondent might be punished, detained or restricted in his personal liberty by reason of his political opinions.3 The Full Court allowed the appeal against the decision of the primary judge of that court and directed that the respondent be released from custody.

5. Special leave to appeal against the decision of the Full Court of the Federal Court was granted on 12 February 2010. On 30 March 2010, following the hearing of the appeal, the appeal was allowed and the magistrate's orders confirmed. My reasons for joining in those orders follow.

The Reasoning of the Full Court of the Federal Court

6. Before the magistrate the respondent pointed to uncontradicted evidence4 said to show that service in the Croatian military during the CroatianSerbian conflict is treated in Croatian courts as a mitigating factor in the sentencing of persons for war crimes committed during the conflict.5 A submission that such mitigation of sentence implied a heavier punishment for Serbian ex-servicemen by reason of their nationality and political beliefs was rejected.

7. The submission was renewed in written submissions in reply before the primary judge in the Federal Court,6 but was not mentioned in his Honour's reasons for judgment. It was, however, successful on the appeal to the Full Court of the Federal Court, which made the following findings and reached the following conclusions:

• (1) Reports from the Organization for Security and Co-operation in Europe (OSCE) published in March and September 2006,7 which were before the magistrate and the primary judge, indicated that the Supreme Court of Croatia had sanctioned lower courts taking into account, in mitigation of sentence for war crimes offences, service by the convicted person in the Croatian armed forces during the CroatianSerbian conflict.8

• (2) The County Courts of Croatia had taken the Supreme Court to have approved the practice of mitigating sentence by reference to prior service in the Croatian army. No evidence had been adduced by the Republic to contradict the inference that such a factor continued to be applied in sentencing.9

• (3) There was no evidence that the respondent's sentence would be increased because he had fought on the Serbian side.10

• (4) The evidence supported the respondent's submission that the Croatian courts take an holistic approach to sentencing.11

• (5) If convicted the respondent would be detained and deprived of his liberty for a period longer than a Croatian counterpart.12 His treatment would thus fall within s 7(c)subject only to determination of the question whether it arose by reason of his race, religion, nationality or political opinions.13

• (6) The mitigating factor of prior service in the Croatian army could not be said to be based on nationality. It would apply to Serbs

  who fought in the Croatian army. It would not apply to Croatians who fought with the Serbian forces in support of an independent Republic of Krajina.14

• (7) The mitigating...