Bosnia

The case concerned an extradition request by Bosnia and Herzegovina for the prosecution of an Afghan national accused of murder, allegedly committed against a Pakistani national. The Court of Appeal of Cagliari granted extradition, subject to two conditions: that the requested person should not be detained in the territory of Republika Srpska and that the Minister of Justice of Bosnia and Herzegovina should provide a guarantee that he would not be repatriated or removed to Afghanistan. The requested person challenged the decision, arguing that reports by the Council of Europe’s Committee for the Prevention of Torture disclosed serious detention concerns in Bosnia and Herzegovina, that his subsidiary protection status in Italy barred surrender because of the risk of return to Afghanistan, and that the Court of Appeal had not sufficiently assessed fair trial guarantees. The Italian Supreme Court rejected the appeal. As to detention conditions, it held that the critical findings relied on by the defence concerned specific police units in Republika Srpska and did not establish a generalized risk in the Bosnian detention system; in any event, the Court of Appeal had expressly excluded detention in Republika Srpska. The Court further held that, absent concrete evidence of a real Article 3 risk, the executing court was not required to conduct exploratory enquiries. As to subsidiary protection, the Court held that recognition of international protection by an administrative authority does not automatically bind the extradition court, although it may constitute a reliable evidentiary element. In the present case, the requested person had not explained why the administrative findings should have led the Court of Appeal to refuse extradition, and the protection risk was addressed by the condition prohibiting repatriation or removal to Afghanistan. The fair trial complaint was also rejected as generic, since it did not identify any specific rule or guarantee of Bosnian law that would be contrary to fundamental rights. The appeal was therefore dismissed and the conditional extradition order upheld.

For the mandatory ground for refusal of extradition based on the purpose of political persecution (disguised as a request for surrender for an ordinary offence) to apply, the person concerned must put forward concrete elements from which it can be inferred that surrender would lead to a violation of fundamental rights or, in any event, to persecution on grounds of race, religion, or political opinions. Accordingly, generic fears of being subjected to inhuman or degrading treatment—based on personal or emotional relationships with third parties—are insufficient, where such circumstances bear no connection to the criminal proceedings in respect of which the sentence to be enforced was imposed.

Risk of inhuman or degrading treatment: it is for the requested person to put forward elements and circumstances which the court of appeal must assess, including, where appropriate, by seeking supplementary information, in order to determine whether, in the specific case, the person concerned will, upon surrender, be subjected to inhuman or degrading treatment. therefore, the court of appeal cannot merely rely on unspecified information drawn from internet sources, nor can it dismiss as generic or evasive the replies provided by the bosnian governmental authority, which instead appear sufficiently detailed as regards the detention regime and its characteristics, the likely course of execution of the sentence, and the prison conditions that will be applied to the requested person in the facility to which they will be assigned.

Secisions on the revocation or substitution of coercive measures ordered for extradition purposes pursuant to article 716 of the italian code of criminal procedure, following arrest by the judicial police, fall within the jurisdiction of the court of appeal, sitting in a panel, after the scheduling of a specific hearing, and not of a single judge delegated by the president of the court of appeal.

The case concerned a review under section 21 of the Australian Extradition Act 1988 of a magistrate’s determination that the applicant was eligible for surrender to Bosnia and Herzegovina. The applicant relied on the extradition objection in section 7(c), arguing that, if extradited, he might be punished, detained or restricted in his liberty by reason of his political opinions or religion, in light of serious mistreatment previously suffered from other prisoners while detained in Bihac prison. The Federal Court accepted that the applicant’s account of past prisoner violence was reliable and that the violence had been connected to his actual or perceived political opinions, but held that the word “punished” in section 7(c) does not extend to harm inflicted by fellow prisoners unless the requesting State is involved in, complicit in, or condones both the harm and the discriminatory reasons for it. The Court further held that the existence of a duty of care owed by prison authorities to prisoners did not, of itself, transform failures of supervision or protection into State complicity or condonation for the purposes of section 7(c). Since the required extradition objection was not established, the Court confirmed the applicant’s eligibility for surrender, while noting that the risk of future harm should be brought to the Attorney-General’s attention at the executive surrender stage.