Zdinjak v Republic of Croatia

For the purposes of the double-jeopardy bar in section 80 of the Extradition Act 2003, the rule includes both the strict pleas of autrefois acquit or convict and the wider jurisdiction to prevent a second prosecution based on substantially the same facts. The fact that the earlier conviction was entered in absentia, or concerned an ordinary crime rather than a war crime, does not by itself remove the protection. International criminal tribunal provisions cannot be read into section 80 to create an exception which Parliament has not enacted. A real risk of a flagrant denial of justice is required under article 6. Long delay will not ordinarily bar extradition to a Council of Europe state unless it makes extradition unjust or oppressive.

The claimant appealed under section 103(1) of the Extradition Act 2003 against District Judge Coleman’s decision to send his case to the Secretary of State under section 87(3). The Secretary of State ordered extradition to Croatia.

The claimant had been convicted in absentia in Croatia in 1994 of armed rebellion and again in 2009 of war crimes against the civilian population. Both prosecutions concerned substantially the same events in Miklusevci. He resisted extradition on double jeopardy, extraneous considerations, passage of time, physical and mental condition, abuse of process and article 6 grounds.

1. Double jeopardy. Section 80 of the Extradition Act 2003 incorporated both the strict pleas in bar and the broader abuse-of-process jurisdiction identified in Connolly v Director of Public Prosecutions [1964] AC 1254 and Fofana [2006] EWHC (Admin) 744. The 1994 and 2009 prosecutions were based on substantially the same facts.
2. R v Thomas [1985] QB 604 was distinguishable. The claimant had been in Croatia during the first proceedings and had been amenable to arrest there, so the Croatian authorities had not established that he had never been in jeopardy.
3. International humanitarian law and the statutes of international tribunals did not create an exception to section 80. The statutory language made no distinction between ordinary crimes and war crimes. The rule in article 4(1) of Protocol No 7 to the Convention also supported its application to successive proceedings within the same state.
4. The appeal therefore succeeded on double jeopardy. Section 80 barred extradition. The court rejected the separate bad-faith abuse-of-process argument.
5. The challenge under section 81 failed. General evidence of shortcomings in Croatia’s judicial system did not establish that the request was racially or politically motivated, or that the claimant would suffer the specified prejudice. The court relied on Travica [2004] EWHC (Admin) 2747 and Spanovic [2009] EWHC (Admin) 723.
6. Article 6 required a real risk of a flagrant denial of justice, meaning a risk of destruction of the essence of the right. That threshold was not met: EM (Lebanon) [2008] 3 WLR 931. The medical evidence and Croatian assurances did not establish oppression under section 91. Nor did the very long delay satisfy section 82, applying Goodyear v Gomes [2009] 1 WLR 1038.
7. The extradition order was quashed and the claimant was discharged. A certificate was granted, but leave to appeal was refused. Legal aid was to be subject to detailed assessment.

1. High Court (Administrative Court): District Judge Coleman sent the case to the Secretary of State under section 87(3) of the Extradition Act 2003. The Secretary of State ordered extradition on 3 November 2011.
2. High Court (Administrative Court): appeal allowed under [2012] EWHC 1554 (Admin) because extradition was barred by double jeopardy. The order was quashed and the claimant discharged.