A federal magistrate ruled Friday that there is "overwhelming probable cause" to believe that Andrija Artukovic ordered mass murders of Serbs and Jews while he was a Croatian government official during World War II.
But U.S. Magistrate Volney V. Brown Jr. raised the possibility that he may not order the extradition of Artukovic to Yugoslavia because of a deficiency in the Yugoslav murder indictment against Artukovic.
Brown, citing several alleged incidents of mass murder involving Artukovic, said he could not find a specific mention of them in the indictment that is the basis of Yugoslavia's extradition request for the return of Artukovic.
His ruling surprised defense lawyers, who praised it, and brought strong objections from Assistant U.S. Atty. David Nimmer, who urged Brown not to impose a "technical requirement of U.S. law" on Yugoslavia.
As Brown began his ruling from the bench at the conclusion of Artukovic's extradition hearing, it appeared that a final decision on whether to extradite the 85-year-old former Croatian interior minister was about to be announced.
Instead, Brown gave both Nimmer and Artukovic's lawyers until Monday afternoon to research the legal question of whether the Yugoslav indictment must specifically mention the alleged incidents on which he based his opinion that there is probable cause to sustain the extradition request.
In announcing his decision that there is sufficient reason to believe that Artukovic was involved in mass murders, Brown cited two affidavits attached to the indictment that were part of Yugoslavia's extradition request.
But he first announced that much of the evidence presented in the Yugoslav request "does not begin to rise to the level of probable cause," and he singled out Yugoslav evidence of racist statements allegedly made by Artukovic during World War II as not being extraditable offenses.
The first affidavit cited by Brown that supported Yugoslavia's request for extradition was a statement by Franjo Truhar, once a Croatian police officer in the town of Zemun, who said that he had unsuccessfully attempted to intercede with Artukovic for mercy on behalf of the wife of a man named Jesa Vidic, who had been imprisoned in a Croatian concentration camp.
Reading from Truhar's 1952 affidavit, Brown quoted the former Croatian official as recounting that he personally delivered on behalf of Vidic's wife an offer to Artukovic of a bribe of 150 acres of land if he would free her husband and permit him to resettle in Serbia.
Truhar said in his statement: "I brought this request in person to Artukovic in Zagreb, and handed it to him, to which he answered me, 'What did you bring this petition to me for? I will kill him and take not 150, but 300 acres of land.' Later, Artukovic himself sent the order for Vidic to be be killed, which was also carried out."
Brown, after reading the testimony, said it is "ample probable cause" to establish that Artukovic had committed the crime of murder.
He then turned to an affidavit by Avdic Bajro, a former Yugoslav convict who declared in 1984 that he had witnessed Artukovic order several mass murders during the early years of World War II.
Artukovic's defense lawyers, headed by Gary B. Fleischman, had focused much of their defense effort in the first three days of the extradition hearing to discrediting the testimony of Bajro, who claimed that he was a motorcycle escort for Artukovic and Croatian Chief of State Ante Pavelic at the age of 17.
"The new affidavit is troubling," Brown said. "The affiant may have reason to be prevaricating. But I must find that it has sufficient credibility to at least be grounds for probable cause."
Brown then read to a packed courtroom, including Artukovic's wife and children, several passages from Bajro's testimony, beginning with the account of an alleged atrocity in 1941 in which Artukovic was charged with ordering the machine-gun slaughter of several hundred Jewish and Serbian women and children who had been ordered to a concentration camp that was already overcrowded.
The magistrate quoted the Yugoslav witness: "I heard when Artukovic told that the back part of the autocade of trucks must be disposed of because it would be too much for the camp. So women, children and men were taken out of the trucks, in my estimate some 400 to 500 persons, and by machine-gun fire were killed by Ustashas at the order of Artukovic, while the others were taken to Kerestinec camp."
After reading more of the testimony, Brown called the affidavit a first-person account of killing.
"It presents overwhelming probable cause to believe the defendant had several hundred persons killed," he said.
None of the incidents he cited, however, was listed in 40 pages of alleged murders and atrocities mentioned in the Yugoslav murder indictment, Brown then disclosed. He asked Nimmer to help him by pointing out where he might have overlooked something in the indictment.
'Not a Requirement'
"That is not a requirement of extradition," said Nimmer. "I strongly and urgently argue that the court is imposing a technical requirement on U.S. law of specificity on an indictment handed down in Yugoslav law. That would be a massive departure from extradition law. Don't make Yugoslavia indict the way the United States would."
Nimmer, upset by the decision, refused to talk to reporters immediately after the hearing was recessed, motioning them away.