The legal processes surrounding the attempt by Belgrade to get former BH Presidency member Ejup Ganic extradited from London to Serbia to face war crimes charges rumble on.

The latest hearing has ended. According to the Sarajevo media, judgement is expected on 27 July.

Needless to say, media reports of the detailed legal issues at stake have been fitful. Some attention has focused on the various claims made by the Ganic team:

  • that Serbia’s application was flawed on its face or substantively
  • that it has no substantive merit and/or presents no evidence which has not been presented in other courts and dismissed as inadequate
  • that Ganic can not expect a fair trial in Belgrade

Lawyers representing Serbia have replied:

  • that there is enough evidence to launch a substantive prosecution in Belgrade
  • and that the Hague Tribunal and other courts are cooperating well with the war crimes courts in Belgrade, and indeed congratulating Belgrade on its work in this difficult area – a fair trial will be assured

My barrister training back in the mists of time taught me one thing: to look at the merits of the case in hand.

The point here (as far as I can see – I may be wrong) is that this is not a case about war crimes. It is about extradition law.

The London courts are not expected or even empowered under the relevant law and guidlelines to delve far into the substance of the allegations against Mr Ganic.

They are dealing with allegations made by state A and against a citizen of state B. Their task is primarily to ascertain whether as a matter of law state A (here Serbia) has met the standards required for Mr Ganic to be transferred to Belgrade.

In terms of where the matter stands procedurally, the Home Office guidelines for cases involving Category 2 territories (which both Serbia and Bosnia are) suggest that we have just had the ‘extradition hearing’.

This is interesting (emphasis added):

Some countries are not required to provide prima facie evidence in support of their request for extradition. These countries are (as of 1 January 2007):

Albania, Andorra, Armenia, Australia, Azerbaijan, Bosnia and Herzegovina, Canada, Croatia, Georgia, Iceland, Israel, Liechtenstein, Macedonia FYR, Moldova, Montenegro, New Zealand, Norway, Russian Federation, Serbia, South Africa, Switzerland, Turkey, Ukraine and the United States of America.

Then there’s this:

The judge must satisfy himself that the request meets the requirements of the 2003 Act, including dual criminality and where appropriate, prima facie evidence of guilt; and that none of the bars to extradition apply (the rule against double jeopardy; extraneous considerations; passage of time or hostage-taking considerations).

Finally, he is required to decide whether the person’s extradition would be compatible with the convention rights within the meaning of the Human Rights Act 1998.

If he decides all of these questions in the affirmative, he must send the case to the Secretary of State for the latter’s decision whether the person is to be extradited. Otherwise, he must discharge the person.

In other words, Serbia does not have to clear too high a legal hurdle on the substance of its extradition request, since Serbia (like Bosnia and Herzegovina) is among the countries whose word and processes are deemed by English law to be respectable enough not to merit deeper investigation.

If the judge decides in favour of extradition, the case goes to the Secretary of State, but only for further consideration under three headings. The Secretary of State is not to look at the wider merits of the issue:

Secretary of State

Where a case is sent to the Secretary of State she (sic) must consider whether surrender is prohibited because:

  1. the person could face the death penalty: This is an absolute prohibition unless the Secretary of State receives an adequate written assurance from the requesting state that the death penalty will not be imposed, or will not be carried out, if imposed
  2. there are no speciality arrangements with the requesting country: The condition of “speciality” requires that the person must be dealt with in the requesting state only for the offences in respect of which the person is extradited (except in certain limited circumstances)
  3. the person was earlier extradited to the UK: this might require the Secretary of State to obtain the consent of the earlier extraditing country, before the person can be extradited on to the requesting state…

If the Secretary of State does find that surrender is prohibited, she must order the discharge of the person. If none of the three prohibitions apply, or appropriate assurances have been given, the Secretary of State must order the person to be extradited.

In the Ganic case the three rather technical prohibitions applied at the political level do not (I assume) apply. So if the Secretary of State is in due course presented with a ruling from the judge confirming Ganic’s extradition to Serbia, on the face of it that ruling will have to be upheld.

If the Secretary of State does order extradition Ganic can appeal, just as Serbia can appeal against a decision in favour of Ganic by either the judge or the Secretary of State.

And who knows, maybe wily lawyers on either side will come up with other proceedings (eg based on UK or EU Human Rights norms) to add new complications.

In short, plenty of legal juice – and juicy fees – remain to be squeezed before Mr Ganic very finally gets on a plane bound for either Belgrade.

Or Sarajevo.