How an Australian citizen landed himself in jail without any charges
"Any Australian can lose his liberty, be put in custody along with other criminals, can be removed from this country for however long it takes in another country that the government has accepted as an extradition country and it is said that that is not punishment and he never has an opportunity for a judicial officer of this nation to have a look, even on the papers, as to whether or not there is sufficient [evidence to send him] there..." (Justice Michael Kirby, 2006)
Daniel Snedden, who came to Australia from the former Yugoslavia as a youngster with his family, was arrested and jailed in early 2006 in response to an extradition demand by Croatia on the discretion of the then Attorney-General Philip Ruddock.
Daniel, who was called Dragan Vasiljkovic in his native country before he came to Australia, had committed no crime in Australia, nor did Croatia bring any charges against him at that time or in the three years following.
This page is an initial sketch of some of the issues around "administrative detention" in Australia under the powers of the Extradition Act, and it shows some news items since Project SafeCom became involved with his case.
February 27, 2009
An Australian facing extradition to Croatia over alleged war crimes has complained to human rights organisations, claiming the law fails to protect citizens wanted by former foe nations that may be biased against them.
Dragan Vasiljkovic, now known as Daniel Snedden, has been detained without charge in a maximum-security Sydney jail for three years during his legal fight against extradition.
Mr Snedden, 54, who led a Serb paramilitary unit during the war in Croatia in the early 1990s, is wanted by Croatia for questioning over allegations he beat a prisoner of war and ordered troops to fire on civilians.
Mr Snedden, known in the Balkans as Captain Dragan, is appealing to the full bench of the Federal Court against Justice Dennis Cowdroy's ruling earlier this month that he should be extradited as evidence had shown "that the Croatian judiciary is capable of providing a fair trial".
In a separate development, Mr Snedden has lodged complaints with the Australian Human Rights Commission and the National Human Rights Consultation, claiming the Extradition Act does not adequately protect Australian citizens from unfair extradition requests.
"There is a case here to fill the gap in the law by saying that in those cases Australia will conduct a court hearing, where Croatian authorities will be invited to run the case on Australian soil," said Jack Smit, human rights lobbyist from Project SafeCom.
"That way, we protect people from being unduly extradited."
Mr Smit said a successful extradition of Mr Snedden could open the floodgates to other, potentially legally unsound extradition requests of Australian citizens.
The human rights commission is an independent statutory organisation that reports to Federal Parliament and the Attorney-General.
The National Human Rights Consultation, which is run by an independent committee, receives written submissions and holds round-table community discussions on human rights. It is due to report to the Federal Government by August 31.
An unrelated defamation hearing scheduled for April in the NSW Supreme Court will hear from Mr Snedden's alleged accusers via video link. Last year, a jury found The Australian had defamed him.
At the further hearing, the newspaper will provide evidence to support a claim the published material was true. If the newspaper is unsuccessful, Mr Snedden may be awarded damages.
Serbs for Justice and Democracy
News September 26th, 2008
On 17 September a delegation consisting of His Grace Bishop Irinej, Dr. Mark Marinkovic, Ilija Glisic, and Mr Jack Smit from Project SafeCom, met with key parliamentarians in Canberra.
The purpose of the meetings was to further inform more politicians about the plight of Dragan Vasiljkovic (Daniel Snedden), who is most commonly known as Kapetan Dragan. The delegation raised basic issues consisting of:
Imprisonment for almost three years now, of an Australian citizen without charges being filed by Croatia or Australia.
The request for extradition to Croatia only lists that they want Dragan Vasiljkovic in their custody while they investigate allegations against him.
The effects of incarceration for so long without knowing when there might be an end to that incarceration.
Continued intimidation in Croatia against Orthodox Serbs, and the Orthodox Church, witnessed in person by His Grace [Bishop Irenej].
The inability of Australia to guarantee the safety and rights of Dragan Vasiljkovic once in the custody of Croatia.
The discretionary nature of the arrest and detention by former Attorney-General Philip Ruddock, when there were other options open to him when the person involved doesn't even have charges pressed against him.
The Extradition Act, and its lack of security for citizens of Australia, which makes this a wider Australian issue, rather than a Serbian issue.
His Grace Bishop Irinej pointed out the humanitarian efforts of The Fonde Kapetana Dragana (Captain Dragan Foundation), and Dragan's standing to the Serbian people. The delegation left by asking for the parliamentarians' assistance in this situation - and further, for a review of The Extradition Act. In general, the meetings were good, and the delegation felt they were well received and their points given a fair audience.
During September 2008, Project SafeCom's Jack Smit joined the Sydney group Serbs for Justice and Democracy in a visit to Parliament House in Canberra. Below are some photos of the visit and meetings with several Parliamentarians.
Click on the thumbnails below to open the larger images.
the Great Hall
@ Tony Zappia MP
and Julia Irwin MP
@ Melissa Parke MP
The Age, with AAP
September 17, 2008 - 3:15pm
Australia's Serbian Orthodox bishop has called for the release of alleged war criminal Dragan Vasiljkovic from a Sydney prison.
The 53-year-old has been in Sydney's Parklea prison since his arrest in January 2006.
Vasiljkovic, also known as Daniel Snedden or Captain Dragan, is wanted by Croatia for war crimes, including torture, against the Croatian people between 1991 and 1993.
"He is not a threat to Australia nor will he leave the country, I stand behind this statement," Bishop Irinej told reporters.
"The preferred outcome would be, in the first place, to free him from prison."
Vasiljkovic migrated to Australia with his mother when he was 12, returning to Serbia in 1991 to take command of a paramilitary unit.
He is accused of killing civilians and instructing others to commit murder during his time as a commander of Serbian paramilitary forces.
Vasiljkovic is also alleged to have fired on a civilian city and kicked a person in the head.
The offences carry a maximum penalty of 20 years jail.
He was jailed pending extradition, which he and Serbian support groups have been fighting.
© 2008 AAP
In 2006 Daniel Snedden gained permission to test his jailing by Ruddock in Australia's High Court. While he was unsuccesful in the challenge, the decision was a divided one amongst the judges.
Justice Michael Kirby was one of the dissenting judges. Below is a segment of the High Court discussions, taken from the transcript.
Some snippets, taken from discussions during the High Court challenge of the validity of Mr Snedden's detention, centering around remarks by "the arch-dissenter" amongst the judges, Justice Michael Kirby.
MR T.E.F. HUGHES, QC: May it please the Court, I appear with my learned friend, MR K.P. SMARK, for the plaintiff. (instructed by Albert A. Macri Partners)
MR H.C. BURMESTER, QC: If it please the Court, I appear with my learned friend, MR J.G. RENWICK, for the first and second defendants. (instructed by Australian Government Solicitor)
GLEESON CJ: Yes, Mr Hughes.
MR HUGHES: In this case, your Honours, we challenge the constitutional validity of the combined operation of the Extradition Act 1988 and the Extradition (Croatia) Regulations in their application to the plaintiff as an Australian citizen. We do so on the principal ground that in their combined operation the Act, particularly section 19(5), and the Regulations provide to Croatia, as an extradition country within the meaning of the Act, the opportunity to secure the involuntary detention and removal from Australia of the plaintiff without any requirement of providing some evidence pointing prima facie to his guilt of the accusations levelled against him of criminal conduct against the laws of Croatia.
We say that in that operation, with respect to the plaintiff, the Act and the regulations are invalid as being wholly disproportionate to the achievement of any objective within the scope of the external affairs power.
KIRBY J: Any Australian can lose his liberty, be put in custody along with other criminals, can be removed from this country for however long it takes in another country that the government has accepted as an extradition country and it is said that that is not punishment and he never has an opportunity for a judicial officer of this nation to have a look, even on the papers, as to whether or not there is sufficient there to send him. (sic)
MR BURMESTER: That is correct, your Honour.
KIRBY J: It cannot be done if it is the United States requesting you, but it can be done if it is Croatia.
MR BURMESTER: Even with the United States the material that is looked at is limited. It does require additional material but, in our submission, that cannot be a constitutional yardstick for the requirement of a prima facie case.
KIRBY J: The Government of the Commonwealth has decided that Croatia will be in that category of countries which, without a treaty, Australia will accept as having, by inference, a judicial system which is adequate for the removal of Australian citizens and people under our protection to another country without the necessity of establishing a prima facie case. So it has gone through that test. It is not allowed for every country but it is allowed for quite a lot and, presumably, on some criterion of minimum standards of the judiciary of that country.
MR HUGHES: That, with respect, is speculative.
KIRBY J: It is not final because the final decision lies in us, but it is the decision that has been made by the Government of the Commonwealth.
MR HUGHES: Yes. It is a political decision.
KIRBY J: But governments throughout history have made accusations. You do not have to accept that they are true just because a government makes it. That is why we normally have judicial officers who are separate from Executive Governments. It is really one of the most important features of the English legal system, that the job of the Executive Government is to get the person quickly before the judicial branch and the judicial branch then decides, according to whatever is the appropriate level, whether a basis has been made out. It is not normally made out just by an accusation.
KIRBY J: Why not require that the sworn material on which this investigating magistrate has considered there is a well-founded suspicion because that is what appears on 25 at 25, why not require by our law that that be placed before a judicial officer here so that the person is under the protection of the law and the Constitution?
MR BURMESTER: Well, your Honour, in 1985 the Parliament made a deliberate decision that it should abandon what had been the norm up until then of a requirement of a prima facie case. If I could hand up to your Honours some extracts from the Extradition (Foreign States) Amendment Act 1985, which your Honours have or - your Honours have that, I am sorry. The amending Act is set out and if I could take you past that to the second reading speech of Mr Lionel Bowen and one will see the second paragraph of his second reading speech says:
The first amendment will enable Australia to conclude extradition arrangements with countries which do not require the requesting country to furnish evidence of guilt but rather information as to the allegations against the fugitive. This amendment is of particular significance to civil law countries whose systems have difficulty in adapting to the provision of pre-trial evidence. The extradition arrangements of most European countries which are reflected in the European Convention on Extradition do not require the production of prima facie evidence.
GLEESON CJ: That is because in an inquisitorial system they do not have a climactic trial at which guilt or innocence is decided. They have an investigative process. Now, it may be good or it may be bad, but the system is just different.
KIRBY J: The trouble for you, Mr Burmester, is you are in our system.
MR BURMESTER: But, your Honour, in order to take advantage of the ability to have extradition relationships with other countries with different legal systems to ours the decision was taken in 1985 to allow extradition without prima facie evidence.
KIRBY J: But somebody has given this magistrate in Croatia the material on which the allegations are made. So why should an Australian citizen have to go back without having that subject of the scrutiny of his own country, because they are making their request to this country? I mean, these are very grave allegations and they need to be dealt with, but the question is whether this procedure is constitutionally compatible with chapter III, which is there for the protection of the States and the Commonwealth, but also of the nationals of this country.
KIRBY J: People do not normally lose their liberty in this country except by orders of a court exercising judicial power. It may be a funny old thing and a rather peculiar thing in this day and age, but that is an aspect of our constitutional law. I am sure governments do not like it necessarily.
MR BURMESTER: One can accept as a broad proposition that citizens would not normally be detained without some exercise of judicial power unless it is for a clear non-punitive purpose.
KIRBY J: Well, it must seem rather punitive to the present plaintiff at the moment when he is sitting in a cell, and a criminal cell; it is not a house of detention where he has special privileges and he is looked after in a particular way apt to the fact that he is by our law still innocent. We have not thrown out the presumption of innocence yet in Australia, I hope.
MR BURMESTER: Your Honour, detention is not in all cases punitive just because it is detention. One has to look very closely at the purpose and the way in which that purpose is implemented and whether the intention in all the circumstances and having regard to the purpose of the detention is in fact non-punitive. But, in our submission, this type of detention where a person is awaiting surrender for the purpose of a criminal trial can be seen as similar to a person on remand following initial arrest or awaiting committal where the testing of evidence is not yet taking place or may not take place until the actual trial and where the detention is clearly for that limited purpose of removing the person to face trial in another country.
The fact that Australia has chosen to surrender the person for trial in another country, instead of, for instance, choosing to put the person on trial in Australia, is not something that, as a matter of constitutional law, is prevented. If the detention is limited, as it is, namely until eligibility for surrender is determined, then, in our submission, one cannot contend that it is significantly different from detention awaiting trial or that it in any way goes beyond what can be seen to be a legitimate non-punitive purpose.
KIRBY J: Do you accept Mr Hughes' complaint that the plaintiff is kept in a criminal prison and is dealt with in all apparent ways as a criminal?