Factual findings
111 The first respondent relied on the following evidence given to the Magistrate by the applicant:
'how many times did you report these assaults to the authorities?---I reported it a number of times but (indistinct) when I suffered a physical beating however when those people who are responsible for having done were called to report about that, they would just deny it.'---'I want to ask you details about the first time you reported. I want to understand what actually happened. When you went to report it, who did you go to?---The person in charge who was around, walking around and looking, he asked me what happened, I told him what happened, and then he said he was going to report it to the high authorities. Is that what happened?---So, yes, and I was called to - told directly to the manager of the position, high position, and I spoke to him and he asked me questions and I told him what happened, I told him who did it to me and he said he was going to call those responsible and tell what happened.
Were you there when that happened?---That was in the office so it was me first and then he said he was going to call those responsible. Do you know if he did call the responsible persons?---They did go there, they did not admit of having done anything but what followed after that was that blanketing and then I was told, "Now you can't report anything because you [can't] see."'---'do you remember whether you told the guard about that incident and what they said to you, if anything?---Well, we were - in that particular incident, I was sitting in the TV room and then during the news the man sitting next to me, he actually hit me with his elbow like that and I fell off the chair. So I walked out of the room and there was an officer and I told the officer what happened, the officer went in and he asked - inquired about it and others said, "No, no, nothing happened, didn't happen to, no-one did anything." The problem in prison is you will never have witnesses who would say that they witnessed something because they are scared for their own life particularly if someone who endangers (indistinct) because they know if they say anything they would be next' …
'Did you see where the guards were during that incident?---Well, shower time is usually after lunch but those people who assault they also know as to where the guard was at that particular moment so if they wanted to assault them they would do any place where guards were not present.' 'Did the guards ever come to your assistance when you were being blanketed at night?---(Through Interpreter) When blanketing is happening no-one can do anything about it but after that I would go out, go to the toilet or to wash my face and if I say to the guard, "I've been blanketed again," they said, "Well, why don't you look after yourself?" Because no-one can help with that.'
112 In my opinion, this does not show, as the first respondent contended, that the prison authorities took steps to investigate the allegations. Taken as a whole, it shows a disdain, or disinterest in the applicant's complaints and in what had happened to him, and might continue to happen to him, at the hands of other prisoners. This evidence also reveals the retribution exacted by the other prisoners after the applicant complained.
113 The first respondent relied on one part of the applicant's evidence to a considerable extent:
… do you know if any of the men who attacked you were ever punished?---Yeah, they could be locked in the solitary cell or would not get weekend leave.
114 As the applicant's counsel pointed out, it is necessary to read this answer in the context in which it was given. Some of the applicant's evidence before this answer made it clear that, so far as he was concerned, none of the prisoners had been punished for what they did to him. After he gave this answer, his then counsel sought to ask some further questions, to which counsel for Bosnia and Herzegovina objected. Before the Magistrate could rule on that objection, there was an intercession by the interpreter, which resulted in the interpreter completing what the applicant had said after the evidence I have extracted above. The complete answer included the following:
I thought I was asked how people would be punished in case they did something, that was my understanding of the question asked and the answer I gave earlier.
115 That evidence is consistent with the interpreter's use of the verb "could" in the previous answer.
116 Then there were the following questions and answers:
And what I'm asking you is whether or not the guards ever did anything, as far as you're aware, to find out who did it or to punish them? Was there ever any consequence that you're aware of from your complaint?---(Through Interpreter) The guard (indistinct) asked the question, "Did anyone do this?" and they would just say, "No," and then he would just caution them or warn them not to do such things, and that was the end - I mean the guard warned people in that cell and that would have been the end of it.
And after that morning, did it happen again?---Yes, normally. This goes on all this beating. It all happens because there are no witnesses. It's a different story if there is a stabbing or someone killed then the matter has to go further but no-one admits anything and it just keeps on going.
Was that your experience, that it kept on going all of the time you were there?---Yeah, that kept happening throughout the entire period.
117 The only cross-examination of the applicant concerned whom he had told about what happened to him in Bihac prison, although no submission of recent invention was ultimately made to the Magistrate. After a series of objections and argument, the critical question and answer on this was as follows:
Since 2014 have you told anyone, except for your lawyers, about the occasions on which you complained to prison guards in the Bihac Prison?---Well, I did not tell anyone in my case because - and also I don't remember having told anyone, I didn't feel I needed to tell anyone other than my solicitors.
Thank you, Your Honour, no further questions.
118 The applicant's account of what happened to him was not challenged by Bosnia and Herzegovina as to its accuracy and reliability. The single answer the first respondent sought to rely on was, in my opinion, taken out of its context in submissions. The applicant's evidence, as a whole, was not that any prisoner had in fact been disciplined or reprimanded for what they did. I have set out the summary of his evidence as put by his counsel on the review at [36] above. In the circumstances, there is no reason to consider that evidence to be unreliable and I proceed on the basis that his account should be accepted. The applicant's evidence shows that on several occasions he was seriously mistreated by other prisoners by reason of, at least, his political opinions as I have outlined them at [36] above. Although his marriage to an Orthodox Christian woman and his daughter having a Christian name were also identified as reasons, it is not clear that these matters fit easily within "his … religion" in s 7(c). There is no evidence the applicant himself is a Christian, or that he was perceived to be one in the prison. In submissions, the Court was not directed to any evidence that the applicant otherwise had religious beliefs which caused other prisoners to single him out for mistreatment.
119 On the applicant's own evidence, I accept that there were, at the time he escaped custody in 2007, substantial grounds for believing that if he were to be surrendered to Bosnia and Herzegovina, and placed back into a prison in Bosnia and Herzegovina, he would be seriously mistreated by other prisoners by reason of his political opinions, actual or perceived.
120 Were there, in 2015, still substantial grounds for that belief?
121 Bosnia and Herzegovina submitted that less weight should be given to the applicant's evidence because it related to events in 2007, and the situation in Bosnia and Herzegovina, and in its prisons in particular, was much changed by 2014.
122 The first respondent largely relied on reports by the US State Department dated 24 May 2012 and 27 February 2014, both of which note that the state body responsible for monitoring prison conditions visited and monitored conditions in several prisons, including Bihac prison. In its submissions, the first respondent placed significance on the fact that the two reports highlight that the monitoring body had raised concerns about the conditions in other prisons, including, in some instances, in relation to inter-prisoner violence, but did not raise any issues about Bihac prison:
In a report of the US State Department dated 24 May 2012, the US State Department notes that 'the Council of Ministers' commission monitoring conditions in prisons visited prisons in Zenica, Doboj, Tuzla and Bihac.' The report notes that 'There were also significant problems with prisoner-on-prisoner violence or intimidation at Zenica and Foca prisons' but does not note that there were any problems with inter-prisoner violence at Bihac prison …
In a report of the US State Department dated 27 February 2014, the US State Department notes that 'the state-level parliament's Commission for Monitoring Conditions in Prisons' visited prisons in Mostar, Trebinje, Zenica, Banja Luka, Bihac, Doboj, Orasje, Foca, Tuzla and Bijeljina. While the report notes issues with the conditions of imprisonment at Zenica and Trebinje, and noted a concern about prisoner hygiene in relation to unspecified prisons, the report does not note any concern about Bihac prison, and no generalized concern about inter-prisoner violence in the prisons that had been visited.
(Footnotes omitted.)
123 It was at this point Bosnia and Herzegovina also sought to rely on the correspondence admitted before the Magistrate, to which the applicant objected under the Evidence Act. I have ruled that the correspondence should properly be before the Court on the s 21 review. However, in my opinion, it is not possible to place any real weight on it, in the absence of an opportunity for the applicant to cross-examine the authors of the correspondence, or at least someone called on behalf of Bosnia and Herzegovina to depose to the truth of what is in that correspondence. This was the issue at the centre of the applicant's extradition objection, and this material remains wholly untested, by reason of a forensic choice made by Bosnia and Herzegovina. In my opinion, it is not possible to give the evidence any real weight, in relation to the determination of the extradition objection. The situation may be different if aspects of this correspondence are subsequently put to the Attorney-General under s 22, and in effect become an assurance relevant to the Attorney-General's residual discretion under s 22(3)(f).
124 I am not satisfied, on the material before the Court, that there is sufficient probative and reliable material for the Court to be persuaded that circumstances in prisons in Bosnia and Herzegovina have changed so much that there is no real possibility the applicant will be subjected to the kinds of harm I have accepted he was subjected to in 2007 at the hands of other prisoners, and for the reasons I identified: namely, his actual or imputed political opinions. The assurance given by Bosnia and Herzegovina was general, unsworn and untested and is insufficiently probative to change my view. The assurance was also, of course, self-serving in the sense of being advanced for the purpose of securing the applicant's surrender. That is one factor which made all the stronger the need for it, and the other material submitted by the requesting state, to be tested.
125 Having made these factual findings on the evidence on the review, I turn to consider how those findings should be applied, to s 7(c), according to both the construction I accept is correct (the first respondent's) and, in case I am wrong, the construction I have found to be incorrect (the applicant's).