Criminal Practice — Extradition Ordered for Bosnian Torturer

Nezirovic v. Holt (Lawyers Weekly No. 15-01-0205, 18 pp.) (Keenan, J.) No. 14-6468, Feb. 25, 2015; USDC at Roanoke, Va. (Urbanski, J.) 4^th Cir.

Holding: A Bosnian citizen can be extradited from the U.S. for his crimes of torture of civilians when he served as a guard at an internment camp for Serbians in 1992; the 4^th Circuit upholds denial of his petition for a writ of habeas corpus because he is not exempt under the “political offense” statute of limitations in the controlling extradition treaty.

A magistrate judge conducting extradition proceedings is required to evaluate whether the evidence is sufficient to sustain the charge under the terms of the terms of the treaty. If the magistrate judge determines the requirements have been met and the applicable treaty does not otherwise bar extradition, the magistrate judge issues to the U.S. Secretary of State a certification of extraditability.

An individual subject to such certification may challenge the magistrate judge’s finding only by filing a petition for a writ of habeas corpus. Habeas corpus is available only to inquire whether the magistrate judge had jurisdiction, whether the offense charged is within the treaty and whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty of the asserted crimes. The Secretary of State makes the final determination whether to extradite the fugitive to the requesting country.

The U.S. and Serbia ratified the treaty at issue in this case in 1902. Although not initially listed in the treaty as an offense for which extradition was available, the offense of torture became an extraditable crime when the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment was incorporated into the treaty in 1994.

Here, appellant does not dispute that he is the person sought by Bosnian authorities for violation of certain laws of Bosnia and Herzegovina, and that the conduct alleged by the Bosnian authorities would have been criminal if committed in the U.S. Nor does he dispute that, subject to the treaty exceptions he argues here, the statements of the 21 witnesses are sufficient to establish probable cause to support a finding that there have been violations of the laws of Bosnia and Herzegovina. Instead, appellant alleges two treaty provisions prevent his extradition for the alleged offenses.

The first provision appellant cites prohibits extradition for offenses that are time-barred in the surrendering country. We apply the statute of limitations applicable to the substantive offense that is most closely analogous to the charged offense. There is no statute of limitations under the analogous U.S. Torture Act when, as here, the acts of torture resulted in, or created a foreseeable risk of, death or serious bodily injury to another person. Appellant fails to identify any specific language in the treaty granting any ex post facto protections to fugitives. The treaty is silent regarding whether the surrendering country’s statute of limitations should be applied based on the date of the alleged crime or on the date of the extradition request.

Under these circumstances, we apply the indefinite limitations period from the Torture Act that was in place at the time of the extradition request. We conclude the request for extradition is not time-barred under Article VIII of the treaty.

The second provision on which appellant relies exempts from extradition “political offenses.” Appellant cannot demonstrate that his offenses were political in nature when viewed objectively. The magistrate judge found that his victims were civilians and his acts of torture against his prisoners were not done in furtherance of his military duty to keep them “locked up,” because the alleged conduct of beating, degrading and humiliating prisoners went well beyond his duties to guard the prisoners. The torture of prisoners cannot be justified on the basis that such torture has occurred in the context of a political disturbance.  We conclude the political offense exception does not preclude appellant’s extradition under the treaty.

Denial of habeas petition affirmed.