Author: Nyman Gibson Miralis
Case study: Extradition
Keywords: Extradition request, section 7(c) extradition objection, punished for political opinions, Extradition Act, eligibility for extradition to Croatia, eligibility for surrender, section 7(c) causal connection, unavailability of mitigating factor.
When an extradition request arises in a post-conflict context, Australian magistrates tread carefully in the face of any extradition objections. In the matter of Republic of Croatia v Snedden (2010) 241CLR 461, sensitive issues arose regarding Mr Snedden’s alleged involvement in Croatia’s Homeland War.
The High Court ultimately examined the applicability of section 7(c) of the Extradition Act 1988 (Cth), asking: could Mr Snedden show a direct causal connection between his political opinions and his punishment on return to Croatia?
Eligible for surrender?
In Snedden, Croatia requested the extradition of Daniel Snedden (formerly known as Dragan Vasiljkovic) from Australia so that he could be prosecuted for crimes committed during Croatia’s Homeland War.
Australia’s attorney general formally accepted the extradition request. At the third stage of the extradition process a magistrate determines under section 19 of the Act whether a person is eligible for surrender to the requesting country. The magistrate must be satisfied that there is no ‘extradition objection’.
Establishing an extradition objection
Under section 7(c) of the Act, an extradition objection may be established if on surrender to the extradition country, a person may be punished by reason of their political opinions. Mr Snedden led evidence that Croatian courts treated those who had served in the Croatian armed forces as a mitigating factor against punishment.
Mr Snedden, who fought on the Serbian side, argued that the fact that the mitigating factor was not available to him constituted an extradition objection under section 7(c). The magistrate disagreed and determined he was eligible for extradition.
On appeal: the causal connection
The majority of the High Court – Justices Gummow, Hayne, Crennan, Kiefel and Bell, with Chief Justice French presiding – accepted that the operation of section 7(c) required a causal connection between the punishment Mr Snedden would be subjected to and his political opinions. Mr Snedden would have to show that he would be punished because of his political opinions.
The question on appeal was whether Mr Snedden’s ineligibility for the stated mitigating factor established the causal connection required under section 7(c), thus constituting an extradition objection.
Key arguments in the High Court
Croatia contended that there needed to be a direct causal connection between the punishment and a person’s political opinions. The bare fact that the mitigating factor was not available to Mr Snedden did not establish a direct causal connection. Croatia also argued that application of the mitigating factor was not dependent on the political opinions of those who served in the Croatian forces, but on whether or not a person had served in the Croatian forces.
Conversely, Mr Snedden argued that the causal connection was established because it was his political opinions that precluded him from joining the Croatian forces.
No presence of mitigating factor
The majority held that Mr Snedden’s differential treatment was not causally connected to his political opinions. The unavailability of the mitigating factor applied to any person who had not served in the Croatian forces, irrespective of their political opinions. The majority also held that the unavailability of the mitigating factor did not necessarily amount to punishment – the extradition objection had not been made out. The appeal was dismissed and Mr Snedden was extradited to Croatia on July 8 2015.
Direct connections and specific court practices
Chief Justice French agreed with the majority’s orders, further rejecting Mr Snedden’s argument that even a risk that he would be subjected to greater punishment satisfied the causal connection required by section 7(c). His Honour emphasised that the causal connection must be direct.
Justice Heydon also agreed with the majority’s orders but on the basis that Mr Sneddon had not proved that Croatian courts had approved a continued practice of taking into account the mitigating factor. His Honour further held that the Full Court of the Federal Court had erred in relying on Croatia’s failure to present evidence before the Federal Court to contradict evidence regarding the mitigating factor.
Justice Heydon noted that the Extradition Act 1988 (Cth) provides that an appeal court is to have regard only to the material that was before the magistrate.
The case of Snedden reminds us that establishing a successful objection to extradition is no easy task. Regardless of the issues surrounding post-conflict Croatia, the High Court of Australia made clear that the section 7 (c) causal connection must be direct and unambiguous. In the face of such precise and uncompromising case law, strong expertise on the legalities of extradition becomes essential.
How can Nyman Gibson Miralis assist you?
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