The opinion of the court was delivered by: Barbara S. Jones, United States District Judge
Muhamed Sacirbegovic, also known as Muhamed Sacirbey ("Sacirbey"), petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking relief from a certification of extraditability issued by the Honorable Frank Maas, United States Magistrate Judge for the Southern District of New York.
Following a hearing, Judge Maas determined that Sacirbey was extraditable to the Federation of Bosnia and Herzogovina ("BiH") based on his alleged violation of Abuse of Official Position or Authority ("abuse of authority"), under former Article 358 of the BiH criminal code.*fn1
Sacirbey claims that the certificate of extraditability should be vacated on the grounds that he has not been charged with an extraditable offense under the governing treaty, and that his extradition would violate his right to due process. For the reasons below, Sacirbey's petition is DENIED.
Sacirbey was born in 1956 in Sarajevo, Yugoslavia. He became a naturalized United States citizen in 1973. From 1992 until late 2000, Sacirbey served as ambassador to the United Nations for BiH.*fn2 As ambassador, he had signature authority over the financial account of BiH's Permanent Mission to the United Nations ("Mission"). See In re Sacirbegovic, No. 03 Cr. Misc. 01 (FM), 2005 WL 107094, (S.D.N.Y. Jan. 19, 2005) (the "Extradition Order"), at ** 3-4.
In 1993, Sacirbey successfully advocated for the creation of the International Tribunal for the Former Yugoslavia ("ICTY"). From 1993 until 2001, he served as BiH's agent before the International Court of Justice ("ICJ"). In that capacity, he managed BiH's case against Serbia for alleged war crimes committed during the 1992-1995 conflict between BiH and Yugoslavia. See id., at ** 6-7 (citations omitted).
Sacirbey also served as BiH's foreign minister from early 1995 until early 1996, during which time he played an important role in the negotiation of the Dayton Peace Accords, which provided the framework for peace in BiH.*fn3
See id., * 7 (citations omitted).
B. Sacirbey's Alleged Wrongdoing
On April 11, 2001, the Cantonal Prosecutor's Office in Sarajevo
submitted a Demand for Investigation (the "Demand") to the Cantonal
Court. (See Demand, Sacirbey Appendix ("App.") Ex. 18.) The Demand
alleges that Sacirbey had abused his official position as BiH's
ambassador in violation of Article 358 of the BiH Criminal
Code.*fn4 (Id.) In support of that charge, the Demand
alleges that "there is a well founded suspicion" that during the relevant
time, Sacirbey had "taken advantage of his official position or
authority in the performance of his duties for the illegal use of the
funds of [the] Mission and of the General Consulate of [BiH] in New
York, USA, as a result of which he has withdrawn cash by means of
issuing checks and bank orders for cash payable to him or by means of
transferring funds to his own private account, due to which he caused
the total shortage in the amount of US $610,982.46." (Id.)*fn5
The Demand further alleges that $1.8 million was missing from
an investment account over which Sacirbey also had signature
On August 20, 2001, the Cantonal Court responded to the Demand by issuing a Decision to Investigate Sacirbey. (See Decision to Investigate, App. Ex. 18.) The Decision to Investigate concluded that there was "a founded suspicion" that Sacirbey, by making "illegal use of the funds of [the] Mission and of the General Consulate of [BiH]," committed "the criminal act of abuse of official position or authority, which is punishable pursuant to Article 358 . . . ." (Id.)
On December 5, 2001, the Cantonal Court issued a Decision for Detention and an International Arrest Warrant for Sacirbey. (See App. Exs. 20-21.)
1. BiH's Extradition Request
On January 29, 2002, the BiH Ministry of Civil Affairs and Communication submitted to the Unites States Department of Justice a request for Sacirbey's extradition (the "Request"). (See Request, App. Ex. 17.) The Request relies on an extradition treaty executed in 1902 by the United States and the Kingdom of Serbia (the "Treaty"). (Id.) Article I of the Treaty provides:
The Government of the United States and the Government of Servia [as it was then transliterated] mutually agree to deliver up persons who, having been charged with or convicted of any of the crimes and offenses specified in the following article, committed within the jurisdiction of one of the high contracting parties, shall seek an asylum or be found within the territories of the other: Provided, that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his or her apprehension and commitment for trial if the crime or offense had been committed there. (See Treaty, Art. I, App. Ex. 6, at Ex. A).
Honoring BiH's Request, the Department of Justice on March 17, 2003, filed in this Court a Complaint for Arrest with a View Towards Extradition. (See Complaint, App. Ex. 6.)*fn7
2. The Extradition Hearing
On December 23, 2003, Judge Maas held an evidentiary hearing to determine whether Sacirbey could be extradited pursuant to the Complaint filed against him.
The Government's case consisted entirely of documentary evidence, including: (i) the Cantonal Court's August 20, 2001 Decision to Investigate (App. Ex. 19); (ii) the Cantonal Court's decisions concerning Sacirbey's detention and arrest (App. Exs. 20-21); and (iii) the sworn witness statements of Hazima Razanica ("Razanica"), Haris Lukovac ("Lukovac"), and Ivika Misic ("Misic") (App. Exs. 22-24). See Extradition Order, 2005 WL 107094, at ** 3-5.
Razanica, a Finance Officer at the Ministry of Foreign Affairs responsible for auditing the Mission's books, allegedly discovered that Sacirbey had made various expenditures on his personal credit card and had collected advance sums of consular monies without accounting for them. During Razanica's visit to the Mission in 2000, she allegedly learned that the Mission was not able to account for its regular expenses due to a lack of funds. According to Razanica, Sacirbey also told Razanica that he would not show her the necessary documents and alleged authorization for his expenditures, but would show these documents to BiH officials in Sarajevo to whom he answered. Sacirbey also allegedly told Razanica that he lacked documentation relating to certain expenditures such as legal fees, which he would attempt to obtain and provide to those officials in Sarajevo. (See Razanica Statement, App. Ex. 22.)
Lukovak, Assistant to the Minister of Foreign Affairs, also visited the Mission in 2000 for the purpose of inspecting the Mission's books. Lukovac met with Sacirbey, who allegedly stated that he could account for all of the expenditures. Sacirbey also allegedly told Lukovac that Sacirbey would have difficulty obtaining documentation for fees paid to certain Hague Tribunal lawyers and lobbyists, and that he would provide whatever documentation he could within thirty days. Sacirbey also allegedly said that he "would be able to provide . . . a certain sum of money" to the Mission. After Lukovac's visit, he arranged to provide 15,000 Deutsche Marks ("DM") to the Mission, for use to settle some of its outstanding expenses. Lukovac was later advised by a Mission bookkeeper, however, that Sacirbey allegedly had diverted the funds. Lukovac also claims that he had conferred with BiH President Izetbegovic, who stated that he had not authorized Sacirbey's expenditures for BiH's legal representation at the Hague Tribunal. (See Lukovac Statement, App. Ex. 23.)
Misic, a member of a three-member commission assigned to investigate the matter further, summarized the commission's findings that: (i) there were a series of omissions in the Mission's accounting books, such as irregularities in the disposal of funds and excessive and unnecessary expenses; (ii) the Mission had huge debt liabilities; and (iii) the Mission did not transfer any money collected as consular fees (referred to herein as "taxes"), which should have been regularly remitted to the Ministry of Treasury. Misic further alleged that Sacirbey "did not collect any documents to prove huge expenses," even though he had promised to do so. According to Misic, Sacirbey also informed the commission that he would be unable to provide documentation for certain large cash payments to lawyers and lobbyists in the Hague. (See Misic Statement, App. Ex. 24.)
Sacirbey's case was comprised of: (i) his own testimony; (ii) the testimony of Paul Robert Williams, a former State Department employee and current law professor at American University; and (iii) declarations of Michael Hartmann, an American attorney currently employed by the United Nations as a prosecutor in Kosovo, who was proffered as an expert on Bosnian criminal law (see App. Exs. 30-31.)
Sacirbey testified that he contributed between $600,000 and $800,000 of his own money to the Mission between 1992 and 1995 because financial support from Sarajevo for the Mission's work was haphazard at best. Sacirbey further testified that he was entitled to receive a salary as ambassador, but never collected it. Sacirbey stated that his authority to spend money for the Mission came "directly from President Izetbegovic . . . [who] said basically in very broad terms, we authorize this." See Extradition Order, 2005 WL 107094, at * 7 (citing hearing transcript).
Sacirbey also testified that his role as BiH's agent before the ICJ brought him into conflict with members of the BiH government, and that his opponents labeled him as a "criminal" and an "embezzler." In Sacirbey's view, the extradition request was an outgrowth of his support of the war crimes case. Id., at ** 7-8 (citing hearing transcript).
Sacirbey also testified that he had certain enemies as a result of his relationship with President Izetbegovic. Indeed, Sacirbey testified that Misic had told him that Sacirbey was being targeted in an effort to secure his cooperation in making a case against President Izetbegovic, which Sacirbey declined to do. Based on this conversation, Sacirbey considered the present extradition proceeding part of the effort to "go after President Izetbegovic." Id., at * 8 (citing hearing transcript).
Sacirbey also testified about the political implications of the United Nations investigation into the massacre of Bosnian Muslims at Srebrenica, which "met all sorts of opposition . . . from the Bosnian Serbs . . . [and also] from western capitals, including Washington." Sacirbey further testified that while he was serving as United States Ambassador to the United Nations, Richard C. Holbrooke, a United States diplomat who helped broker the Dayton Peace Accords, pressured Sacirbey and others to abandon the ICJ genocide case and "came down very hard" on Sacirbey at Dayton for "call[ing] for Milosevic's indictment." Sacirbey theorized that Holbrooke and others close to him might have played a role in the commencement of this proceeding against Sacirbey. Id. (citing hearing transcript).
Sacirbey also testified that he provided President Izetbegovic with a yearly accounting of the expenses incurred in connection with the genocide case before the ICJ, although he expressed uncertainty as to whether President Izetbegovic had received complete documentation concerning the expenditures. He also testified that the Mission's back-up set of documents was sent to President Izetbegovic and that Sacirbey had not kept any duplicates. Id. (citing hearing transcript).
Williams, who was called to testify on Sacirbey's behalf, stated that Sacirbey's work with the ICJ was opposed by Momcilo Krajisnik and others in the international community, including Slobodan Milosevic, the former President of the Federal Republic of Yugoslavia, who wanted the case before the ICJ dismissed. Williams further contended that there were United States officials who shared that goal because they feared that the ICJ might conclude, as Sacirbey alleged, that certain of the participants in the Dayton talks -- including the United States -- were willing to overlook past acts of genocide against Bosnians in order to secure an agreement concerning BiH's governance. Indeed, as Williams noted, Sacirbey and others contended that certain United States allies had failed to prevent a massacre in the town of Sresvernizca in 1995 in furtherance of that goal. Williams suggested that the charges against Sacirbey may have been brought in an effort to discredit Sacirbey. As Williams explained, after Sacirbey left office, the party controlling ...