In re Kavic, Bjelanovic and Arsenijevic

THE FACTS. - This was a request by Yugoslavia for the extradition of three Yugoslav nationals, members of the crew of a Yugoslav passenger plane, who had diverted the plane from its lawful destination in Yugoslavia to Switzerland, and had there sought asylum. During the flight the other members of the crew were subjected to constraint, and extradition was requested for that offence as well as for the offences of endangering the safety of public transport and of wrongful appropriation of property. It was contended on behalf of the accused that extradition should be refused on the grounds, inter alia, that the offence was not committed on Yugoslav territory, and that it was a political offence.

Held: that extradition could not be granted. The offences in question had a political character. The Court said, in part:

"The question whether the request for extradition must be granted, must be decided in conformity with the Federal Law concerning Extradition of January 22, 1892, and the Extradition Treaty between Switzerland and Serbia of November 28, 1897, since the Kingdom of Yugoslavia and now the Federal Republic of Yugoslavia are the successors of the Kingdom of Serbia, and have taken over international conventions concluded by it….

"The accused contend that, according to the principle of territoriality, extradition cannot be granted, since the offences in question were not committed on or over Yugoslav territory, but on or over that of Switzerland, and of Austria and Italy….

"(a)       This contention is unfounded in so far as it is attempted to deduce from the preamble to Article 1 of the Extradition Treaty that extradition can be granted only for offences committed in Yugoslavia. An earlier decision of this Tribunal (A.T.F., 34, I, P. 781) taking this view in reference to an identical provision in the Swiss-Italian Extradition Treaty, was essentially based on the fact of the lack of competence of Italian courts to deal with offences committed outside Italy. Yugoslav law, on the other hand, provides for the competence of Yugoslav courts also in respect of offences committed by Yugoslav nationals abroad, if the offender is arrested in Yugoslavia, or extradited….

"(b)       On the other hand, the question arises whether extradition must not be refused on the ground that the offences in question were committed on Swiss territory, to which, both according to international and to municipal law, the airspace above it belongs (Article 1 of the Convention of December 7, 1944, concerning International Civil Aviation; and Article II, paragraph 1, of the Federal Law concerning Aviation of December 21, 1948). The principle that extradition is not granted for offences committed on Swiss territory is laid down in Article 12 of the Extradition Law; it is valid even in relation to States with whom an extradition treaty is in force which does not contain that principle. It applies not only to offences committed exclusively in Switzerland, but also to offences committed both in Switzerland and in the requesting State, e.g. when the action was carried out in Switzerland and had its effect in the other State, or when acts committed in both countries are considered by criminal law to form one entity. The question whether extradition must be denied on this ground can, however, be left open, since, as will be seen below, it is excluded on another ground.

"In accordance with Article 10 of the Extradition Law and Article VI of the Extradition Treaty, extradition is not granted for political offences. This applies not only to offences directed against the State, which are described as purely political offences - and which, in any case, are not amongst the extraditable offences listed - but also to so-called relative political offences, which consist in the commission of a common offence but which, by virtue of the circumstances and, in particular, the motive, of their commission, acquire a political colouring. Moreover, there are common offences which are committed not for their own sake, but for the purpose of preparing or ensuring the success of purely political offences, and common offences which also constitute a purely political offence (Idealkonkurrenz)….

"(a)       All the offences with which the accused are charged were means to effectuate their escape abroad, and coincided completely with that escape. The question must therefore be examined whether that escape constituted a purely political offence; if so, extradition must be refused on the ground that the offences for which it is requested are not only connected with a purely political offence, but also constitute such an offence (Idealkonkurrenz)…. [The Court then examined Yugoslav legislation concerning the illegal crossing of its frontiers, and came to the conclusion that the escape did not constitute a purely political offence.]

"(b)       The purpose and motive of the acts with which the accused are charged was to enable them to flee from a country with whose régime they were not in agreement and where they felt themselves to be watched and repressed….This fact gives both the flight and the offences committed to make it possible a distinctly political colouring.

''That is not, however, enough to exclude the possibility of extradition for these offences; it is also necessary that their political character should outweigh their common characteristics. At the time of the adoption of the Extradition Law it was decided, after long discussion, not to define the concept of relative political offences, but to leave the Court to appreciate the character of an offence by reference to all the circumstances (Message of the Federal Council of June 9, 1890; BBI, 1890, III, P. 352). The earlier jurisprudence of the Federal Tribunal laid decisive emphasis on the basic idea of the Law, namely, that asylum should be granted to the alien worthy of sympathy, who had fought for his political convictions and had been prosecuted for so doing (A.T.F., 32, I, P. 539). Later, the Tribunal gave a more restrictive interpretation to the concept of relative political offences, and required, in particular, that the act should be related to a general activity directly aimed at the realization of political aims, and should have been committed in the framework of a fight for political power (A.T.F., 59, I, p. 146; ibid., 77, I, p. 62). This applies to the flight of a political opponent from the country only if it is intended to continue the fight for power from abroad…. That restrictive interpretation does not, however, bear re-examination; it does not meet the intention of the law, nor take account of recent historical developments, such as the growth of totalitarian States. In such States all political opposition is suppressed and a fight for power is, if not impossible from the start, at least practically without any chance of success. Those who do not wish to submit to the régime have no alternative but to escape it by flight abroad…. This more passive attitude for the purpose of escaping political constraint is no less worthy of asylum than active participation in the fight for political power used to be in what were earlier considered to be normal circumstances. The spirit of justice undoubtedly ascribes a political character to such a flight abroad, and a liberalization of the practice of the Court, with a view to adjusting it to recent developments, appears justified. In matters of extradition in particular, the Court must not abandon that spirit in favour of legalistic constructions, and must take account of historical and political developments; in the Message of the Federal Council cited above the competence of the Federal Tribunal and its freedom of appreciation is explained on the ground that it offered 'the best guarantee that the decision would always reflect the sentiment of justice inherent in the people, and would not be prejudiced by considerations alien to the realm of law'. Recent practice has been too restrictive in making the relative, political character of an offence dependent on its commission in the framework of a fight for power. Such a character must also be attributed to offences which were committed in order to escape the constraint of a State which makes all opposition and, therefore, the fight for power impossible.

"In this connection there can also be applied the principle that the relation between the purpose and the means adopted for its achievement must be such that the ideals connected with the purpose are sufficiently strong to excuse, if not justify, the injury to private property, and to make the offender appear worthy of asylum (A.T.F., 56, I, p. 462). Freedom from the constraint of a totalitarian State must be regarded as an ideal in this sense. In the present case the required relationship undoubtedly exists; for, on the one hand, the offences against the other members of the crew were not very serious, and, on the other, the political freedom and even existence of the accused was at stake, and could only be achieved through the commission of these offences."