Ahmetašević case

Court	District Court of The Hague (Extradition Division), The Netherlands
Case number	LJN: BQ4586, In camera number 08/3524
Decision title	Judgment
Decision date	5 June 2009
Parties	Senad Ahmetašević
Categories	War crimes
Keywords	Double criminality; war crimes; prisoner of war; fair trial
Links	Judgment: Ahmetasevic (original decision in Dutch) Judgment: Ahmetasevic (in English)
Other countries involved	Bosnia and Herzegovina

Summary

In November 1993, Senad Ahmetašević, former member of a National Defense unit in Bosnia and Herzegovina, killed a prisoner of war in the Omica Brdo region. On 13 March 2007, the Minister of Justice of Bosnia and Herzegovina requested the extradition of Ahmetašević who resided in the Netherlands at the time. Ahmetašević opposed the extradition. On 5 June 2009, the District Court of The Hague approved the request for extradition. The Court held that the requirements for extradition were met and that there was no fear that Ahmetašević would not enjoy fair trial rights in Bosnia and Herzegovina.

Procedural history

On 13 March 2007, the Minister of Justice of Bosnia and Herzegovina requested the extradition of Senad Ahmetašević from the Netherlands for the purpose of prosecution for the wilful killing of a prisoner of war in November 1993. In November 2008, Ahmetašević was arrested by Dutch police and subsequently detained.

On 12 January 2009, a hearing in which the presiding judge gave notice of the request for extradition was held. During this hearing, as well as during subsequent court hearings on 9 April 2009 and 25 May 2009, notice of the contents of the documents submitted by the Minister of Justice of Bosnia and Herzegovina was given.

Ahmetašević claimed that he could not be extradited to Bosnia and Herzegovina because there was no adequate evidence showing that he was the person subject of the request for extradition, and that there was also insufficient evidence for the offense for which extradition was requested. In addition, Ahmetašević argued that the extradition request was not issued within a reasonable period of time and that he would therefore not be guaranteed a fair trial provided for in Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR).

Related developments

On 24 May 2011, Senad Ahmetašević was found guilty by the Cantonal Court in Bihac for killing a prisoner of war in the Tomica Brdo region in Bosnia and Herzegovina in November 1993. Both the defence and the prosecution appealed the decision.

On 4 November 2011, the Supreme Court of the Federation of Bosnia and Herzegovina confirmed the Bihac Cantonal Court’s decision and sentenced Ahmetašević to eight years in prison for killing a prisoner of war.

Legally relevant facts

According to the double criminality requirement, a suspect can only be extradited to another country in order to stand trial for an alleged offense, if that offense constitutes a crime in both the extraditing country and the country requesting for extradition.

Core legal questions

Is there a criminal offense under Dutch law that is comparable to the wilful killing of a prisoner of war as war crime? (para. 6.2)
Were the fair trial rights as guaranteed by Article 6 ECHR violated?
Can the District Court allow the extradition of Senad Ahmetašević?

Specific legal rules and provisions

Hague Convention (IV) , 1907:

Article 23(c)

Geneva Convention (III), 1949:

Article 3(1), item A III

Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Council of Europe:

Article 6 - Right to a fair trial

European Convention on Extradition, 1957, Council of Europe:

Article 2

Extradition Act, 1967, The Netherlands [in Dutch only]

Article 5

Criminal Code of the Federation of Bosnia and Herzegovina, 1998

Article 156

International Crimes Act, 2003, The Netherlands

Section 6(1)

Court's holding and analysis

The District Court first determined whether the requirement of double criminality is met by analysing whether there is a comparable offense under Dutch law to the willful killing of a prisoner of war constituting a war crime (para. 6.2). The Court held that there is a comparable punishable offense under the Dutch International Crimes Act (para. 6.4).

On the basis of the documents provided by the authorities of Bosnia and Herzegovina, the Court rejected Ahmetašević’s argument that he is not the person referred to in the request for extradition (para. 6.6.2).

Furthermore, with respect to the claim of Ahmetašević that there was insufficient evidence for the offense, the Court held that it could not decide upon this claim but that it would be dealt with in the (potential) criminal case in Bosnia and Herzegovina (para. 6.6.2).

The Court also rejected Ahmetašević’s claim that fair trial rights as guaranteed by Article 6 ECHR were violated because the authorities of Bosnia and Herzegovina issued a late request for extradition. First, the Court held that Article 6 ECHR did not apply to the extradition procedure (para. 6.6.4). Second, the Court held that it had no jurisdiction to decide whether rights guaranteed by the ECHR were violated because both the Netherlands and Bosnia and Herzegovina are signatories to the ECHR and that therefore the latter as requesting state must adhere to the ECHR (para. 6.6.5).

The Court ruled that Ahmetašević could be extradited to Bosnia and Herzegovina for the alleged killing of a prisoner of war.