Spanovic v Government of Croatia & Anor

Under the Extradition Act 2003, passage of time bars extradition only where, on all the circumstances, return would be unjust or oppressive. Culpable delay by the requesting state is relevant but is not automatically decisive. The court must focus principally on the effect of delay, including prejudice to a fair trial and hardship arising from changed circumstances.

A serious physical or mental condition creates a very high threshold under section 91. The requesting state’s public interest, the gravity of the allegation, the availability of treatment and the safeguards of a fair retrial remain relevant. Assurances from a fellow Convention state require careful assessment but should be given substantial weight where cogent contrary evidence is absent.

The appellant challenged decisions sending his extradition case to the Secretary of State and ordering his extradition to Croatia to face trial for alleged war crimes committed in 1991. His original conviction had been entered in absentia after proceedings which the court accepted were plainly unfair.

On an earlier appeal, the Divisional Court remitted the case for reconsideration of passage of time and culpable delay. On redetermination, the Senior District Judge found no culpable delay and concluded that extradition would not be unjust or oppressive. The appellant then relied on his psychiatric condition, alleged prejudice arising from ethnicity and delay, the absence of an adequate retrial, and speciality concerns. The central issues were whether extradition was barred under sections 82 or 91 of the Extradition Act 2003, and whether Croatia would provide an unconditional and fair retrial.

1. Appeal dismissed. The orders sending the case to the Secretary of State and ordering extradition were upheld.
2. Section 82 requires an overall judgment on whether passage of time makes extradition unjust or oppressive. Culpable delay may colour that judgment and may be decisive in a marginal case, but it does not automatically establish the statutory bar. Delay attributable to the requested person cannot ordinarily be relied upon. The relevant question is principally the effect of time, including prejudice to the defence, hardship and any false sense of security.
3. The Senior District Judge was entitled to find that officials dealing with the appellant in Croatia and at its embassy did not know, and had no reason to know, that he was wanted for war crimes. The court respected those factual findings. The appellant’s peaceful life in the United Kingdom had to be weighed against the strong public interest in the trial of alleged war crimes. The balance favoured extradition provided a fair retrial was available.
4. Section 91 creates a stand-alone protection, but the threshold is very high. Psychiatric illness, suicide risk and likely deterioration do not necessarily make extradition unjust or oppressive. The court considered the availability of treatment, the procedure for determining fitness to stand trial, the seriousness of the allegations and the public interest. Croatia’s assurances and evidence of medical provision were sufficient.
5. The appellant had an unconditional right to a retrial under Article 412 of the Croatian Criminal Procedure Act if claimed within one year of return. That procedure was distinct from the separate renewal procedure under Articles 497 to 508. The retrial would carry the rights required by section 85(8), including legal assistance, examination of prosecution witnesses and calling defence witnesses. Croatia’s Convention status, domestic safeguards and appellate procedures supported the conclusion that a fair trial could be provided.
6. Past discrimination against ethnic Serbs did not establish that the appellant would presently receive an unfair trial. The material showed substantial improvement in Croatia’s legal system. The speciality objection, based on other cases, was abandoned and was in any event without merit.

• Divisional Court, Administrative Court: on the earlier appeal, reported at [2007] EWCA 1770 (Admin), remitted the matter to the Senior District Judge for reconsideration of culpable delay and whether extradition would be unjust or oppressive.
• Senior District Judge: on 30 May 2008 sent the case to the Secretary of State under section 87(3) of the Extradition Act 2003.
• Secretary of State: ordered extradition on 22 July 2008.
• High Court (Administrative Court): dismissed the present appeal and upheld both orders.