Travica v The Government of Croatia

Under sections 6(1)(d) and 11(3)(b) of the Extradition Act 1989, the court must assess the individual circumstances and evidence, viewed cumulatively. A reasonable chance, substantial grounds for thinking, or serious possibility of prejudice is sufficient. General evidence of ethnic discrimination, regional tension, past convictions in absentia, or differential prosecution rates will not ordinarily suffice without a specific connection to the applicant and the likely trial. The court should not refuse extradition merely because another ethnic group might not have faced prosecution on materially similar facts, where the applicant would otherwise receive a fair trial. A delay claim must identify concretely how the passage of time makes return unjust or oppressive.

The claimant, a Croatian Serb, challenged his committal for extradition to Croatia. He had been convicted in absentia of murder and arson and would receive a retrial if returned. He relied on section 6(1)(d) of the Extradition Act 1989, alleging that his ethnicity, the location and nature of the charges, witness intimidation, and his earlier conviction created a risk of prejudice. He also relied on section 11(3)(b), arguing that delay had made a fair trial impossible. The central issues were whether the evidence established the statutory risk of discriminatory prejudice or restriction of liberty, and whether return would be unjust or oppressive because of delay.

1. The application for habeas corpus was dismissed. The claimant’s committal for extradition therefore remained effective.

2. Applying Fernandez v Government of Singapore [1971] 1 WLR 987, the relevant threshold under section 6(1)(d) is met by a reasonable chance, substantial grounds for thinking, or serious possibility of the specified prejudice or restriction. The court accepted that the same test applied to section 11(3)(b), adopting the approach in Sivakumaran [1988] AC 958.

3. The assessment had to focus on the claimant’s particular circumstances. Ethnic identity, the fact that the alleged victims were Croats, the location in the Krajina region, and the earlier in absentia conviction did not, without more specific evidence, establish a reasonable chance of prejudice at the retrial. Evidence of improvements and continuing deficiencies in Croatia’s justice system had to be balanced rather than treated as determinative in either direction.

4. The argument that section 6(1)(d) was engaged because a Croat might not have been prosecuted on equally weak evidence was rejected. The provision did not confer so wide a power over a foreign state’s prosecutorial practices where the claimant would otherwise receive a fair trial. In any event, the general statistics did not establish the asserted likelihood to the required standard.

5. The evidence concerning possible intimidation or absence of alibi witnesses was general, largely hearsay, and inadequately particularised. It did not address the bilateral arrangements for obtaining evidence or demonstrate that the claimant could not place relevant evidence before the Croatian court. The section 6(1)(d) case therefore failed, whether considered separately or cumulatively.

6. The delay claim was irretrievably vague and unspecific. The claimant could not identify most of the proposed alibi witnesses, and there was no evidence showing that his position would have been materially better had the proceedings occurred earlier. Return was not unjust or oppressive under section 11(3)(b).