STATE v. DIRECTOR OF PRISONS; EX PARTE SCHUMANN [1966] GLR 703

Division: COURT OF APPEAL

Date: 4 NOVEMBER 1966

Before: AKUFO-ADDO C.J., AZU CRABBE AND LASSEY JJ.A.

CASES REFERRED TO

(1) R. v. Brixton Prison (Governor); Ex parte Kolczynski [1955] 1 Q.B. 540; [1955] 2 W.L.R. 116; [1955] 1 All E.R. 31; 119 J.P. 68; 99 S.J. 61, D.C.

(2) Re Castioni [1891] 1 Q.B. 149; 60 L.J.M.C. 22; 64 L.T. 344; 55 J.P. 328; 39 W.R. 202; 7 T.L.R. 50; 17 Cox C.C. 225.

(3) Re Meunier [1894] 2 Q.B. 415; 63 L.J.M.C. 198; 71 L.T. 403; 42 W.R. 637; 18 Cox C.C. 15; 10 R.

400. (4) In re Goering, digested in (1946) 13 I.L.R. 203.

(5) Attorney-General of Israel v. Eichmann (1961) 36 I.L.R. 5.

(6) Re Galwey [1896] 1 Q.B. 230; 65 L.J.M.C. 38; 73 L.T. 756; 44 W.R. 313; 12 T.L.R. 150; 40 S.J. 213; 18 Cox C.C. 213.

(7) R. v. Holloway Prison (Governor); Re Siletti (1902) 71 L.J.K.B. 935; 87 L.T. 332; 67 J.P. 67; 51 W.R. 191; 18 T.L.R. 771; 46 S.J. 686; 20 Cox C.C. 353.

(8) R. v. Brixton Prison (Governor); Ex parte Percival [1907] 1 K.B. 696; 76 L.J.K.B. 619; 96 L.T. 545; 71 J.P. 148; 23 T.L.R. 238; 21 Cox C.C. 387.

(9) R. v. Brixton Prison (Governor); Ex parte Servini [1914] 1 K.B. 77; 83 L.J.K.B. 212; 109 L.T. 986; 78 J.P. 47; 30 T.L.R. 35; 58 S.J. 68; 23 Cox C.C. 713.

(10) R. v. Brixton Prison (Governor); Ex parte Shuter [1960] 2 Q.B. 89; [1959] 3 W.L.R. 603; 103 S.J. 636; 123 J.P. 459; [1959] 2 All E.R. 782, D.C.

(11) Schtraks v. Government of Israel [1964] A.C. 556; [1962] 3 W.L.R. 1013; 106 S.J. 833; [1962] 3 All E.R. 529, H.L. affirming sub nom. R. v. Brixton Prison; Ex parte Schtraks [1963] 1 Q.B. 55; [1962] 2 W.L.R. 976; 106 S.J. 372; sub nom. Re Schtraks (Shalom) 126 J.P. 277; [1962] 2 All E.R. 176, D.C.

(12) Ornelas v. Ruiz 161 U.S. 502; 6 S.Ct. 689; 40, L.Ed. 787 (1896).

(13) In re Ezeta 62 Fed. Rep. 972 (1894).

(14) Ramos v. Dias 179 F. Supp. 459; 28 I.L.R. 351 (1959).

(15) United States ex rel. Karadzole v. Artukovic 170 F. Supp. 383; 28 I.L.R. 326 (1959).

(16) Noblot Case, digested in 4 I.L.R. 350.

(17) Hungarian Deserter (Austria) Case, digested in (1963) 28 I.L.R. 343.

[p.706] of [1966] GLR 703

NATURE OF PROCEEDINGS

APPEAL from the dismissal of an application for habeas corpus by Bannerman J. in the High Court, Accra, by an applicant who had been committed to prison pending extradition to the Federal Republic of Germany to stand trial for murders alleged to have been committed in that country. The facts are fully stated in the judgments.

COUNSEL

Darko (Amofa and Tagoe with him) for the appellant.

Fordjour, Senior State Attorney, for the respondent.

JUDGMENT OF AKUFO-ADDO C.J.

This is an appeal from the decision of the High Court, Accra, refusing to grant an application for a writ of habeas corpus made by the appellant Dr. Horst Schumann, a German national resident in Ghana and who was on 25 August 1966, committed to Ussher Fort Prison to await orders for his extradition to the Federal Republic of Germany to stand trial on a charge of murder. The charge of murder brought against the appellant by the Federal Republic of Germany arose out of the brutal excesses of the Nazi regime in the period of World War II in furthering their political ideology which called for, among other things, the extermination of the Jewish race.

The appellant has been resident in this country since 1959 and until 6 March 1966, has been in the employment of the government as a medical officer. He was arrested on a warrant issued by the District Magistrate, Accra, upon an order of the Government of Ghana made at the request of the Federal Republic of Germany and brought before the said district magistrate under the provisions of the Extradition Act, 1960,1 as amended by the Extradition Act, 1960 (Amendment) Decree, 1966.2 On 26 August 1966, as already stated, he was committed to the Ussher Fort Prison, where he now is, to await surrender by the government.

The appellant applied to the High Court, Accra, for the issue of’ a writ of habeas corpus directed to the Assistant Director (who is the keeper) of the Ussher Fort Prison for his release on the ground that his committal to prison by the district magistrate was wrong in law, that is, in breach of the requirements of the Extradition Act, 1960, and therefore his incarceration consequent upon that committal was unlawful. The appellant relied on a number of grounds in support of his application. These grounds, which in effect are the same as have been argued before us, appear in his affidavit sworn to in support of’ his application. They are: (1) that the appellant was not given an

[p.707] of [1966] GLR 703 opportunity to tender evidence to prove that the offence wherewith he was charged was of a political character as he was by law entitled to do so under section 9 (2) of Act 22; (2) that the appearance in the magistrate’s court of a state attorney representing the Government of the Federal Republic of Germany offended against natural justice and rendered the proceedings from the viewpoint of the appellant “unfair and oppressive”; (3) that the charge was bad for duplicity; and (4) that there was not sufficient evidence before the magistrate on which to find a prima facie case against the appellant. The High Court heard the application on 16 September 1966, and found against the appellant on all the points raised by him. The court therefore dismissed the application.

In this court the appellant’s counsel has advanced practically the same points as he did in the court below with the addition of a further ground alleging that the statements of the various witnesses in West Germany which formed the main evidence of the West German Government were unsworn and their admission as evidence rendered the proceedings a nullity. This latest point may be disposed of in a few words. Extradition proceedings are by our law governed by the same principles and rules of procedure as committal proceedings in an indictable offence (Act 22, s. 9 (1)), and the law does not require that committal proceedings shall be based on sworn statements of witnesses (see section 182 of the Criminal Procedure Code, 19603). Section 24 of Act 22 on which the appellant’s counsel relies does not, by the very plain language of that section, require that the written statements of witnesses used as evidence in extradition proceedings shall be sworn. Any interpretation of that section to the contrary is a misinterpretation. Moreover, the section refers specifically to proceedings relating to a convicted fugitive and not to an accused fugitive as is the case before us.

The only complaint of the appellant’s counsel which has engaged our serious attention is the one alleging that the appellant’s counsel was not given the opportunity to call evidence, although he (so he says) offered to tender that evidence, to prove that the offence charged was of a political character. And this because, while we do not sit on appeal from the findings of fact by the magistrate, the question of the political character of the offence in extradition proceedings is one that goes to the magistrate’s jurisdiction over the entire matter. If, therefore, there are any facts that go to challenge the magistrate’s jurisdiction, it becomes, in our view, our duty even at this stage to ascertain these facts. [p.708] of [1966] GLR 703 The learned judge of the High Court held that the appellant’s counsel precluded himself from calling any evidence and it was therefore not the fault of the magistrate that the accused was not called upon to make his defence. The reference in the learned judge’s decision was to a note recorded at the close of the case for the prosecution in the following terms: “Case for the State closed. Mr. Amofa informs court he does not intend to put his client in the box and asks for adjournment.” Mr. Amofa was the appellant’s counsel. This note was intepreted both by counsel for the prosecution and the learned judge as meaning that counsel expressed his intention not to call evidence and that he was going to rely entirely on his submissions. This interpretation we find somewhat unfortunate, for the fact that counsel was not putting his client in the witness-box did not mean that he was not offering any other evidence. Counsel for the appellant made his submissions of, in effect, “no case,” and among these submissions was one that the offence was of a political nature relying, as indeed he was entitled to do, on the evidence in support of the requisition. The magistrate, no doubt acting on the interpretation which he had placed on counsel’s statement as stated above, namely, that counsel was offering no evidence, proceeded to rule, inter alia, that the offence was not of a political character. Counsel denied that he expressed the intention not to offer evidence either by or for the appellant and he in effect attempted to question the veracity of the magistrate’s record. We have already, in our order of 26 October 1966, said that we consider this attempt to be scandalous and we accept the record as true. Counsel further submitted that the magistrate misunderstood his statement which was that he would submit that no prima facie case had been made against his client, and he expected therefore to be called upon for his defence after his submission had been rejected. Whatever confusion ensued as the result of the statement made by counsel for the appellant must be blamed entirely on counsel, who appeared from the record to be picking up his law ad hoc as the case proceeded. The eventual position in the district magistrate’s court was that the magistrate had not before him any evidence by or for the appellant on the issue of the offence being of a political character, and this position forms the basis of the appellant’s complaint before us.

As the question of the political character of the offence involved went to the very foundation of the magistrate’s jurisdiction (see Re Kolczynski4) and since the magistrate’s decision that the offence was not of a political character was subject to review on habeas corpus [p.709] of [1966] GLR 703 we thought it desirable that we should give the appellant the opportunity to adduce evidence before us to prove his contention that the offence was of a political character. We therefore on 26 October 1966, on our own motion, granted the appellant leave to tender the evidence aforesaid, such evidence to include the appellant’s own testimony if he so wished: see Re Castioni.5 The appellant gave evidence himself and called no other witnesses nor tendered any other evidence.

The appellant’s evidence, in sum, was that he committed the acts that form the basis of the charge of murder, but that he did so upon the specific command of Hitler, the head of the German State and Government; that it was explained to him that the acts, namely, the killing of incurable lunatics and the sterilisation of Jews were in accordance with Nazi political ideology which expressed itself in the notorious “euthanasia programme” and “the final solution of the Jewish problem,” a euphemism for the total extermination of the Jewish race “not only,” in the words of the appellant “from Germany, but also from Europe …”;that at the time he committed the acts he believed he was doing the right thing, first, because it was in obedience to the orders of Hitler and, secondly, because he believed then in the righteousness of the Nazi ideology and finally that he risked death or some severe punishment if he did not obey Hitler’s orders. Upon this evidence the appellant’s counsel argued that the offence was one of a political character for the appellant’s evidence summarised above contained, so counsel submitted, all the elements necessary to constitute the offence one of a political character. The offence, counsel submitted, was therefore not extraditable. Counsel for the State submitted that the principles relating to an offence of a political character have been examined and enunciated in the English cases of Re Meunier,6 Re Castioni7 and R. v. Brixton Prison (Governor); Ex parte Kolczynski8 and that none of the facts stated in the appellant’s evidence fell within these principles. In the cases of Re Meunier and Re Castioni, the principle is stated that to constitute an offence of a political nature, there must be some political disturbance or upheaval or there must be some physical struggle between two opposing political parties for the mastery of the government of the country, and that the crime in question must have been committed in furtherance of that disturbance or struggle. The principle was extended in the Kolczynski case to cover “offences committed in

[p.710] of [1966] GLR 703 association with a political object (e.g. anti-Communism), or with a view to avoiding political persecution or prosecution for political defaults.” See Introduction to International Law by J. G. Starke (5th ed.), pp. 294-295.

It is clear beyond argument that the appellant’s case is not covered by these principles. It is not his case that the poor helpless lunatics at the Munsungen Asylum or the Jews at Auschwitz had rebelled against the Nazi ideology and had thereby created some form of political disturbance which needed quelling, nor indeed does he claim to have committed the offence charged with a view to avoiding political persecution or prosecution. The fact, however, that the appellant cannot bring his case within the principles enunciated in the three cases above referred to would not, at any rate in theory, seem to conclude the matter against him, for I do not think that the principles embodied in these cases can be regarded as exhausting the category of “political crimes” for purposes of extradition. The appellant, however, has not put forward for consideration any other principle by which the political character of his acts may be ascertained, and I can think of no principle that places his acts in this category.

The appellant’s case, as is clear from his evidence and also from his counsel’s submission, rests essentially on two grounds. First, that he acted in obedience to superior orders, that is, orders from the state and his acts were in effect “acts of state” and that, therefore, he, as an individual, could not be punished for them; and, secondly, that the acts which constituted the offence with which he was charged were, at the time of their commission in Germany, not punishable at law. The appellant must be particularly aware of the invalidity of these defences, for he said in his evidence before us that he escaped from Germany in 1951 to avoid being tried for his acts, because, although he had these defences to put up, the German courts would not accept them. These defences appear to have been the stock defences of almost all the Nazi criminals in the numerous trials that followed in the wake of World War II, including the famous trials by the International Military Tribunal at Nuremberg. Needless to say these defences have invariably been rejected. The principle that an official of a state cannot hide his crimes behind the facade of the theory of “act of state” is too well established to require any further elaboration. It is perhaps enough to quote the view expressed by the International Military Tribunal at Nuremberg on the defence of “act of state” which that tribunal rejected in the case of In re Goering9 in the following terms: [p.711] of [1966] GLR 703

“It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an ‘act of state,’ those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected. That international law imposes duties and liabilities upon individuals as well as upon States has long been recognized.”

On the contention that the appellant’s acts were at the time of their commission not punishable in Germany, I can only refer to, and adopt, with respect, a dictum contained in the judgment (dated 12 December 1961) of the District Court of Jerusalem in the case of the Attorney-General of Israel v. Eichmann10 which is as follows:

“The courts in Germany, too, have rejected the contention that the crimes of the Nazis were not prohibited at the time and that their perpetrators did not have the requisite criminal intent. The judgment of the Supreme Federal Tribunal of January 29, 1952 (St/R 563/51) (BGH 562 234) declares that the expulsion of the Jews, the object of which was the death of the deportees was a continuous crime committed by the principal planners and executants, a matter of which all other executants must have been conscious, since it cannot be accepted that they were unaware of the basic principles on which human society is based and which are the common legacy of all civilized nations.”

After referring to another judgment in 1960 of the German Supreme Federal Tribunal which dealt with the murder of mentally deranged persons on the orders of Hitler, the dictum goes on to say11: “The judgment says, inter alia (pp. 277, 278) that in 1940 at the latest, it was clear to every person not too naive, and certainly to all who were part of the leadership establishment, that the Nazi regime did not shrink from the commission of crimes, and that whoever took part in these crimes could not argue that he had mistakenly assumed that a forbidden act was permissible when these crimes violated basic principles of the rule of law.”

Moreover we have it on record from the evidence of Dr. Jose Fabry, an official of the Ministry of Justice in West Germany, and formerly a public prosecutor, that murder has always been a crime in Germany and it was a crime during the entire period of the Nazi

[p.712] of [1966] GLR 703 regime. The fact that for political reasons murder of the type with which the appellant is charged was not punishable during the Nazi regime does not by any reason render its prosecution unlawful now. I am unable to accept as tenable any of the grounds advanced by the appellant’s counsel in support of his submission that the offence involved in these proceedings is of a political character. The offence of murder with which the appellant is charged is, having full regard to all the circumstances in which the offence was committed, no more of a political character than the offence of, say, robbery with violence or burglary committed by a political party activist in a desperate bid to seek means of replenishing the dwindling coffers of his political party.

Counsel for the appellant complains that the presence of a state attorney prosecuting, in effect, on behalf of the West German Government offended against the principles of international law and practice and that the proceedings in the magistrate’s court were, for that reason, “unfair and oppressive” and that these proceedings should therefore be declared a nullity. It is enough to say that according to the law of this country criminal proceedings such as these proceedings could only be initiated either by or on behalf of the Attorney-General, that is, the state is the prosecutor, and there seems to be no reason why the state should not be represented by a state attorney. Counsel has not been able to refer us to any authority which makes such a representation bad in law, nor has he been able to satisfy us how his client was in any way prejudiced.

I do not think it necessary to deal with the other grounds argued by counsel for the appellant as these grounds are singularly without any merit in them. These other grounds do not in any way relate to matters that affect the jurisdiction of the magistrate, nor indeed to any breaches of the Extradition Act, 1960. It should be pointed out that our duty in the hearing of this appeal is to determine whether the magistrate had jurisdiction to make the order of committal which he made and whether there was evidence before him to justify his conclusion of fact. I am satisfied that there was ample evidence before the magistrate to justify his findings, and having decided that the offence with which the appellant is charged is not of a political character, it only remains for me to dismiss the appeal. The appeal is accordingly dismissed. The appellant shall continue to remain in prison until his surrender by the National Liberation Council.

JUDGMENT OF AZU-CRABBE J.A.

I agree that this appeal should be dismissed and only desire to make some few observations on the main points raised in the appeal. In consequence of the request by the diplomatic [p.713] of [1966] GLR 703 representative of Federal Republic of Germany made to the Government of the Republic of Ghana for the extradition of the appellant, the appellant was brought before the District Magistrate, Accra, and was on 25 August 1966 committed to prison to await his extradition to the Federal Republic of Germany. He then applied for an order of habeas corpus to the High Court, but his application was refused. He now appeals to this court against that refusal.

Extradition of fugitive criminals in Ghana is governed by the Extradition Act, 1960,12 as amended by the Extradition Act, 1960(Amendment) Decree, 1966.13 Under section 30 of the principal Act a “fugitive criminal” is defined as any person accused or convicted of an extradition crime committed within the jurisdiction of any other country who is in or is suspected of being in Ghana. An extradition crime is defined in section 29 of the same Act as a crime which, if committed within the jurisdiction of Ghana would be an indictable offence described in the First Schedule of the Act. Briefly, the procedure under the Act begins with a requisition for the surrender of the fugitive criminal addressed, for the time being at any rate, to the National Liberation Council member responsible for the Ministry of the Interior, who then requires a district magistrate to issue a warrant for the arrest of the fugitive criminal. The warrant is issued upon such evidence as would justify the issue of a warrant if the crime had been committed in Ghana. The fugitive criminal having been apprehended, he is brought before a district magistrate within 24 hours and the district magistrate hears the case in the same manner and exercises the same jurisdiction and powers as early as may be as if the proceedings were for committal for trial for an indictable offence under the Criminal Procedure Code, 1960.14 The main function of the district magistrate is to satisfy himself (1) that the offence alleged is an extraditable offence, that is, an offence listed in the First Schedule to the Act; (2) that the prisoner is satisfactorily identified as the perpetrator of the offence alleged; (3) that all documents are properly authenticated as required by the Act and (4) whether by the law of Ghana the evidence is sufficient to establish a prima facie case such as would justify a committal to the High Court. The district magistrate has a further duty to receive any evidence tendered to show that the offence is of a political character, or that the offence is being used as an excuse to arrest the fugitive and to punish him for a previous offence of a political character. Finally, the district magistrate has to consider whether or not the offence alleged is of a political character. The onus is on the fugitive to prove that his [p.714] of [1966] GLR 703 extradition is sought so that he can be tried or punished for an offence of a political character. Provided the requirements of the Act are satisfied the district magistrate will proceed to make an order committing the fugitive to prison, unless there is any reason to the contrary.

Section 12 of Act 22 gives to a fugitive criminal the right to apply for an order of habeas corpus to any judge of the High Court for his release. However, proceedings by way of habeas corpus are not appeal proceedings, neither does the High Court re-hear the whole case that was before the district magistrate. The sole function of the High Court, quite apart from any consideration as to whether or not the offence alleged is of a political character, is to see whether the prisoner is lawfully detained. In Re Galwey15 Lord Russell C.J. stated the functions of the Divisional Court in an application for habeas corpus under the English Extradition Act, 1870,16 thus:

“[W]e should, after the order of committal, be entitled to review the magistrate’s decision, not in the sense of entertaining an appeal from it, but in the sense of determining whether there was evidence enough to give him jurisdiction to make the order of committal: I mean evidence of the offence and of other necessary conditions for the application of the Act when the chief magistrate made the order of committal under which the prisoner is now in custody. It seems to me that the only ground on which this habeas corpus can be successfully maintained is that the committal order was made without jurisdiction and was illegal.” In R. v. Holloway Prison (Governor); Re Siletti,17 Bigham J. stated the circumstances in which the High Court can interfere with a magistrate’s order of committal upon an application for habeas corpus. He said: “Then, if he applies for a habeas corpus and obtains the rule, the question arises what points may be taken upon the argument of the rule. For my part, I think the only question that this Court can entertain is the question of jurisdiction, and, applying that observation to this particular Act, all that the accused person may say is that the crime with which he was charged was not a crime within the meaning of the Extradition Act—that is to say, that it did not come within the class of offences contemplated, or that it was an offence of a political character, and therefore was outside the Act altogether. He may also say that there was absolutely no evidence upon which the magistrate could exercise his [p.715] of [1966] GLR 703 discretion as to whether he would commit or not. These things he may say: but I am clearly of opinion that there is one thing he cannot say—namely, that there is evidence one way and the other, and that this Court ought to enter into the consideration as to whether the magistrate has exercised his discretion as to it properly. That he cannot say.”

In his judgment, Darling J. explained the word “jurisdiction” in the English Act. He said18: “[J]urisdiction is not quite the right word to use. It is used by my brother Bigham, as I understand it, to cover a good deal more than is usually meant when we use the word jurisdiction in ordinary cases. It is used to cover want of jurisdiction in the magistrate—that is, want of that which would properly be called jurisdiction. It is also used to cover the case of there being no evidence against the accused at all, and where there was, in the opinion of this Court, no evidence against the accused, not even a prima facie case against him, in such a case as that this Court would go into the matter, and on ascertaining that there was no evidence, would make the rule absolute for a habeas corpus.”

It seems to me therefore that in the High Court proceedings before Bannerman J. the appellant could contend, in order to succeed in his application for an order of habeas corpus, that the district magistrate’s order of committal was wrongly made either (1) because there was evidence that the offence was of a political character, or (2) that it was not an extradition crime, or (3) that a prima facie case was not made out. I think the appellant could also contend that the requirements of Act 22 were not complied with, and therefore, the order of committal was invalid. But an order for habeas corpus cannot be granted merely on the ground of a technical defect in the proceedings: see R. v. Brixton Prison (Governor); Ex parte Percival,19 R. v. Brixton Prison (Governor); Ex parte Servini20 and R. v. Brixton Prison (Governor); Ex parte Shuter.21

The appellant’s application for habeas corpus before the High Court was based on several grounds alleged in an affidavit supporting his application. Each of these grounds was fully considered by the learned judge and they were all rejected. In this appeal these grounds alleged in the affidavit have been substantially re-stated in the additional grounds of appeal filed on behalf of the appellant. In an appeal from a refusal to grant an application for an order for habeas corpus [p.716] of [1966] GLR 703 this court does not have wider powers than the High Court. Like the High Court, the function of this court is to consider whether there was material on which a reasonable magistrate would have been entitled to commit the prisoner. It is not open either to the High Court or this court to re-try the case and then substitute its own discretion for that of the district magistrate. However, the issue whether the offence charged is an offence of a political character is an independent and substantive issue which can be raised at any stage in the extradition proceedings: per Viscount Radcliffe in Schtraks v. Government of Israel.22 Any fresh evidence led on this issue is received by the court not to impeach the magistrate’s exercise of his discretionary powers, but to determine whether he had jurisdiction to make the order of committal. In this appeal it is not disputed that the offence for which extradition of the appellant is sought is murder, which is listed in the First Schedule to Act 22. The charge against the appellant is therefore prima facie extraditable. The next important question is: Was there sufficient material before the district magistrate to justify committal? The following facts proved before the district magistrate and upon which the committal order was founded are culled from his ruling:

“The particulars of the charges are that from 1939 to 1941, the accused acting in concert with others, and as director of the killing institutions at Grafeneck and Sonnenstein maliciously killed at least 30,000 human beings, inmates of medical establishments in respective concentration camps. Again, from 1942 till 1944 the accused, in common with others, killed a large number of prisoners in the concentration camp at Auschwitz by unskillful performance of X-ray therapy and operations in experiments for finding out a quick and simple method suitable for mass sterilization … Exhibit B1 also reveals that shortly before the outbreak of World War II Hitler gave the order to his escort physician and others to organize the extermination of the Lebensunwerten Lebens (‘of life unworthy to live’) according to the National-Socialist Point of View. Various types of patients in medical establishments fell in this class for extermination. The mass killings of about 30,000 human beings for which the accused is sought form part of the so-called mercy killings. It is further alleged that in 1941 the then Reich leader S. S. Himmler and his staff were occupied with the question of prevention of propagation of the Erbuntuchtigen (incapable of inheriting) and rassich Minderwertigen (individuals of racial inferior value) in [p.717] of [1966] GLR 703 ccordance with National-Socialist or Nazi ideology. In the foreground stood first of all the elimination of the entire Jewish population in Germany and in the territories occupied by the German Armed Forces. A programme for mass sterilization was worked out and experiments in Rontgen castration was carried out. Material for Rontgen castration was installed at Auschwitz concentration camp and the accused was induced to experiment on both males and females. There is abundant evidence in the depositions of the accused’s active participation in the mass killings in the gas chamber and also of the fatal experiments he carried out, the details of which are blood-chilling.”

The evidence before the learned district magistrate was uncontradicted, because immediately the case for the requesting state was concluded counsel for the appellant informed the learned district magistrate that he was not putting his client into the witness-box to give evidence on his behalf and asked for an adjournment. When the court sat again at a subsequent date counsel for the appellant submitted that the alleged offence with which his client was charged was of a political character and that the offence was statute-barred, even if it was extraditable. Counsel relied on section 2 (2) of Act 22 as substituted by N.L.C.D. 65, para. 1 which deals with restrictions on surrender of fugitive criminals. Subsection (2) of the section reads:

“A fugitive criminal shall not be surrendered if the offence in respect of which his surrender is requested is one of a political character, or if it appears to the Court or the National Liberation Council that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character.” This subsection contains two limbs, each dealing with different acts or circumstances. The first limb prevents the surrender of a fugitive criminal if the evidence establishes the crime to have been committed in circumstances clothing it with a political character; the second limb prevents his surrender, although the offence is not of a political character, if the fugitive can show to the satisfaction of the court or the National Liberation Council that the requesting state really requires his surrender so that it may try him for another offence which is of a political character, or at least punish him on his conviction of the non-political offence as though he had been tried for the political offence: see R. v. Brixton Prison (Governor); Ex parte Kolczynski.23 Since the appellant gave no evidence the only evidence before the learned district magistrate therefore was that of the

[p.718] of [1966] GLR 703 requisitioning state. But as Lord Goddard C.J. pointed out in the Kolczynski case,24 “the political character of the offence may emerge either from the evidence in support of the requisition or from the evidence adduced in answer.” So that notwithstanding the appellant’s failure to give evidence the learned district magistrate was still under a duty to consider on the evidence before him, whether or not the offence alleged was of a political nature. He decided that it was not, because as he said: “It is quite clear from the depositions that these crimes were committed against weak and innocuous human beings who had no political ambitions. I consider the alleged offences crimes against humanity which, like war crimes, invite the disposition of states to treat them as extradition crimes.”

In this appeal several points have been raised, but I propose to confine my observations only to the following: (1) failure of the committing magistrate to comply with the mandatory provisions of section 9

(1) and (2) of Act 22 by not allowing the appellant to give evidence on his own behalf; (2) representation by the senior state attorney on behalf of the Federal Republic of Germany; (3) the allegation that both the district magistrate and the judge erred in holding that whether or not a crime is of a political nature is a question of law; and finally (4) the allegation that the judge erred in holding that the offence is not of a political character.

Section 9 of Act 22 merely declares the method by which the magistrate is to hear a case. By subsection

(1) he is required to hear the case in the same manner as if the fugitive criminal were brought before him charged with an indictable offence in Ghana. This method includes, according to subsection (2), the reception of evidence from both sides, if tendered, to show that the crime is an offence of a political character or is not an extraditable crime. In my view, there is nothing mandatory about subsection (2) of section 9, because the magistrate cannot compel the fugitive criminal to give evidence if he does not wish to, especially if the fugitive criminal may take the view, albeit erroneously, that the political character of the offence is inferrable from the evidence tendered in support of the charge. In this case we have said in our earlier ruling that the appellant was entitled to lead evidence for the reasons given in that ruling, and therefore nothing now turns on this point.

On the question of representation of the Federal Republic of Germany, counsel for the appellant contended that the appearance of the senior state attorney at the district court was contrary to [p.719] of [1966] GLR 703 international practice, since there was no evidence that the Federal Republic of Germany had requested the law officers of Ghana to represent it in the extradition proceedings. Counsel submitted that this representation by a law officer of this country had occasioned a miscarriage of justice, though he was not able to tell us how the appellant was prejudiced by this fact. Our Extradition Act, 1960, makes no provision for representation on behalf of the requesting state, or assisting the magistrate. It seems that in the absence of specific treaty making provisions for representation, there is no obligation on the requested state to arrange for representation for the requesting state. In England when there is no provision under a treaty the case is sometimes taken over by the Director of Public Prosecutions: see [1955] Criminal Law Review, p. 76. In this case Mr. Fordjour, senior state attorney, who also appeared at the district court, informed us that there existed an arrangement for representation between the Government of Ghana and the Government of the Federal Republic of Germany. I think such an arrangement for representation in court can be inferred from the Schedule to the Extradition Act, 1960 (Extension of Application to Federal Republic of Germany) Order, 1966,25 in which a right is conferred on the government of the requested state to claim a refund of all fees of’ solicitors and of counsel employed by the requested state on its territory by reason of the extradition. In Re Castioni,26 the Solicitor-General of United Kingdom appeared “by arrangement” for the Swiss Government. That the Government of the Federal Republic of Germany as a requisitioning state could have a right of audience in the district court cannot be doubted: see the Kolczynski case (supra). But the Federal Republic of Germany could have appeared in the same way as a complainant would in a private prosecution, but under section 57 of the Criminal Procedure Code, 1960, the public prosecutor could intervene and assume the conduct of the prosecution. It seems to me that the representation of the senior state attorney is justified if not only for the reason that there was an arrangement, by section 57 of Act 30, and I do not think that there is any substance in this point which was taken by counsel for the appellant.

The point taken by counsel that both the district magistrate and the learned judge regarded the question whether or not a crime is of a political nature is one of law is not quite correct. That statement can be attributed only to the district magistrate. With all due respect to the district magistrate, I think that that statement was wrong. In my view the question whether a crime charged is of a political nature [p.720] of [1966] GLR 703 is one of mixed law and fact, though it is essentially a question of fact. In Onlelas v. Ruiz,27 the Supreme Court of the United States said that whether the crime charged is of a political character is “a question of mixed law and fact, but chiefly of fact.” In my view the erroneous view which the district magistrate expressed does not affect this appeal, since it was a statement made after the order for committal had been made, and when he was overruling the submission of counsel for the appellant that the appellant had right to give evidence.

The crucial question in this case is whether the offence charged is of a “political character.” This is the first case of extradition to come before the superior courts of this country, and owing therefore to the lack of any local authorities on the point I think we can look at cases decided in other jurisdictions to see how the subject has generally been treated. The issue whether an ordinary or a common offence was to be regarded as a political offence for the purposes of the law of extradition first came up before the English court in Re Castioni.28 The court took care to point out that they did not consider it necessary or desirable to put into language in the shape of an exhaustive definition exactly the whole state of things, or every state of things, which might bring a particular case within the description of an offence of a political character; but it approved the definition of political offences given by Sir James Stephen (as he then was) who said at p. 71 in his History of the Criminal Law, Vol. 2 that “fugitive criminals are not to be surrendered for extradition crimes if these crimes were incidental to and formed a part of political disturbances.” In the course of his judgment Denman J. made this classic observations29: “[T]o bring the case within the words of the Act … it must at least be shewn that the act is done in furtherance of, done with the intention of assistance, as a sort of overt act in the course of acting in a political matter, a political rising or a dispute between two parties in the State.” The concept that the test of a political offence is an act committed in the course of a struggle for power between two parties in a state was applied to the facts of another English case, Re Meunier, Cave J. said30:

“[I]n order to constitute an offence of a political character, there must be two or more parties in the State, each seeking to impose the Government of their own choice on the other . . . if the offence is committed by one side or the other in pursuance of that object, it is a political offence, otherwise not.” [p.721] of [1966] GLR 703

The courts in the United States of America have followed the definition of a “political offence” by the English courts. In In re Ezeta,31 the court quoted with approval extracts from the judgments of the English case of Re Castioni32 and established a definition of a political offence which has been consistently followed in the American courts: see also Ramos v. Dias33 and United States ex rel. Karadzole v. Artukovic.34

The concept that political offences are acts done in the struggle for power between two parties in the state has been accepted also by the Swiss courts. For in the Noblot Case,35 where extradition was requested on a charge of forgery of a bill of lading, the prisoner contended that he had not forged the document from any pecuniary motives, but from political motives—to damage the work of the Dawes Plan. The Swiss Federal Court held that the prisoner should be surrendered because as the court was reported to have said,36

“in order to recognise the political character of a crime of this description, it is necessary that the act in question should have been directed against the political regime of the State either in an effort to secure power in the State, or as an isolated incident in such a struggle.”

Re Castioni was recently reconsidered by the English courts in Re Kolczynski where Cassels J. said37: “The words ‘offence of a political character’ must always be considered according to the circumstances existing at the time when they have to be considered. The present time is very different from 1890 when Castioni’s case was decided.”

In his judgment Lord Goddard C.J. said that the court should give “a wider and more generous meaning” to the words, “offence of a political character” and held that “the revolt of the crew was to prevent themselves being prosecuted for a political offence and … therefore the offence had a political character.”38 It seems to have been established by the Kolczynski case that an act committed solely on the ground of fear of prosecution for a political offence or of political persecution will be sufficient to give the crime a political colouring, if such fear led immediately or directly to the commission of the crime for which extradition is sought. There must exist a direct connection of the criminal act with a political object.

[p.722] of [1966] GLR 703

In Re Shalom Schtraks,39 the applicant contended that the crimes he had committed arose out of a conflict between the orthodox and the governing secular religious factions in the state which was of a political character. Lord Parker C.J. suggested a definition of a crime of a political nature which he thought was wider than anything before offered. He said: “A crime of a political character is a crime committed as part of a political movement with the object of influencing the policy of the governing party of the state.”40 This definition still recognises the principle of the earlier cases that for an offence to qualify as a political crime it was necessary that the offence be committed in furtherance of a political struggle.

When Schtraks v. Government of Israel reached the House of Lords all the previous English cases were examined and their lordships, though they recognised the difficulty of formulating any satisfactory definition of the term “a crime of a political character,” made certain pronouncements which are certainly illuminating. Lord Reid said41: “So it appears to me that the motive and purpose of the accused in committing the offence must be relevant, and may be decisive.”41 It seems to me, therefore, that an act which is clearly motivated by political considerations or interests must be classified as a political offence. The exact nature of the purpose of the crime which is required to make the offence a political crime was explained in the Austrian Supreme Court judgment in the case of Hungarian Deserter (Austria) Case42. The court is reported to have said:

“The political motive of a criminal offence does not in itself prove that the offence is political. The crime becomes a political offence only where it serves a political purpose; i.e., where the offence is intended to bring about a change of political circumstances, and not where it serves a personal purpose, albeit one influenced by political motives.”

The motive of the accused must, however, be direct.

In the Schtraks case (supra) Viscount Radcliffe said that the phrase “offence of a political character” represents an idea which is capable of description. He observed43:

“In my opinion the idea that lies behind the phrase ‘offence of a political character’ is that the fugitive is at odds with the state that applies for his extradition on some issue connected with the political control or government of the country. The

[p.723] of [1966] GLR 703 analogy of ‘political’ in this context is with ‘political’ in such phrase as ‘political refugee’, ‘political asylum’ or ‘political prisoner.’ It does indicate, I think, that the requesting state is after him for reasons other than the enforcement of the criminal law in its ordinary, what I may call its common or international, aspect.” The weight of authority inclines me to the view that a crime can be classified as a political offence if it is committed in the course of a dispute, not necessarily a civil commotion, between the ruling party in the state, on the one hand, and another political party or movement within the state, on the other hand, with the view solely to advance the cause or further the purpose of the political party or movement concerned. It is in the light of these various definitions that I shall consider the facts of this case in order to determine whether the various acts committed by the appellant fall within any of these well-known and accepted definitions. The evidence before the district magistrate shows that the appellant, acting in concert with other people, systematically and maliciously killed at least 30,000 human beings in medical institutions and concentration camps. In his evidence the appellant did not deny that he committed these heinous and wicked crimes, but he added more horrific details to show the calculated and cold-blooded manner in which the offences were committed. He admitted that none of his victims held any political views antagonistic to the ruling Nazi party. He also proudly admitted his membership of the Nazi party and his belief in the ideology of that party. His victims he described as, “People who did not know the world in which they lived. They did not understand politics.” He said that the only object of killing the inmates of the lunatic asylum was to make room for wounded soldiers returning from the war front. The appellant said that he committed these atrocities on the direct orders of the Chancery of Hitler, and that he acted in the way he did in furtherance of the Nazi party programme and to “avoid being under close observation resulting in death or any other extreme punishment.” The appellant said that he did everything under political pressure, and that if he had refused he would have been sent to a concentration camp where he was afraid to go.

It is clear, as the evidence seems to me, that the dominant motive of the appellant in killing those thousands of lunatics and Jews was anything but political. There was no political rivalry in Nazi Germany, and the appellant has not contended that fear of prosecution for a political offence or political persecution led him to commit the offences with which he is charged. Finally, the appellant admitted before us that he is not at odds with the present Government of the [p.724] of [1966] GLR 703

Federal Republic of Germany on “some issue connected with the political control of government of the country.” In my judgment, the appellant is a “fugitive from justice” and must be surrendered for trial. For the above reasons I would, therefore, dismiss the appeal.

JUDGMENT OF LASSEY J.A.

I also agree that the appeal be dismissed. These extradition proceedings which have seldom come before the courts of this country raised certain matters of principle and procedure. Firstly, whether or not it is proper and in accordance with accepted standards in international practice for the state in which the fugitive has sought asylum to provide legal representation for the requesting state in the prosecution of the extradition proceedings in the committal court; and secondly, what is the appropriate procedure which ought to be followed by the magistrate in extradition proceedings in the committal court. But I agree so fully with what my lord the Chief Justice and my brother Azu Crabbe have said about these matters that I have nothing of substance to add.

The only point of interest and some importance in respect of which I wish to say something of my own concerns the arguments addressed to us at the hearing of this appeal as to whether or not the offences charged are of a political character. In this regard I feel some sympathy with the appellant, not because in actual fact the killings complained of in these proceedings are not inhuman, atrocious and heinous in themselves, but because different views may be taken by different people with different political thinking or systems as regards the political events which led up to the commission of the offence in Germany at the time. The helpful arguments of both counsel who relied on several decided cases which do not give any exhaustive definition of the words “of a political character” have further revealed in my own mind the difficulties involved in any attempt in giving a precise definition of the phrase “of a political character.” There is no doubt in my mind that the earlier decisions of the courts on this vexed legal point narrowed down to some extent the scope of what might be correctly termed offences “of a political nature” because in those days the evolution of different political parties with conflicting political ideologies was not as rapid as in the present days, and the tendency to commit offences connected with the execution of different ideological policies of the existing political parties was not so frequent as it is today. However, in the present case before us, the evidence adduced both by the requesting state and the appellant himself shows that the mass killings complained of are the ordinary crimes against the person known to the municipal laws of the Federal Republic of Germany, but there is no doubt also that those killings were done in circumstances which were not entirely

[p.725] of [1966] GLR 703 without some political significance. The evidence on the whole satisfied me that the offences charged in these extradition proceedings were committed on the orders of the ruling political party in Germany at the time and that they were so committed in fulfilment of the political programme or ambitions of the ruling political party, namely, the Nazi party in Germany, prior to and during the period of the Second World War.

The crucial question here is this: In those circumstances is it necessary to widen the scope or meaning of these magic words “of a political character” if only for reasons of humanity? I desire to answer this by saying that in order to determine the political character of the particular offence so as to make it not extraditable there must necessarily be present at the time of the commission of the particular crime some element of organised or violent opposition or resistance to the execution of the planned policy of the ruling political party and the offence must be committed in the conflict which might result between the opposing parties. In this context any such offence committed either by the agents of the ruling political party seeking to carry out their principal’s orders or by the agents of those who dislike or resist the carrying into effect of the particular political policy may be brought under the category of an offence “of a political nature or character” and therefore excusable in extradition proceedings. This in my view should be one of the tests in determining whether in the particular circumstances an offence committed against the municipal laws of a state by a national who has sought asylum or refuge in another state is of a political nature or not.

Merely carrying out wicked or inhuman orders or plans of a governing political party by state agents against the persons or properties of individuals or groups of individuals who manifestly do not demonstrate any organised violent resistance to the execution of those plans would not stamp the offences committed in such a situation with political character so as to afford the perpetrators an excuse from due prosecution. It is absolutely absurd to me to hold that a charge for what is clearly murder committed in one territory in response to the superior orders of a ruling political party against helpless victims in a lunatic asylum should not lie and the offender not be extradited because it was done in obedience to superior orders of a governing political party.

In my view neither the helpless lunatics in the mental institution at Musingen nor the Jews in Auschwitz appeared to have offered any organised resistance to the Nazi party in Germany, notwithstanding the possibility that as individuals they might not have liked the policy of the Nazi regime which was out to exterminate them from the face of the earth. The offences charged against the appellant were not [p.726] of [1966] GLR 703 committed against the numerous victims in the course of any open conflict or rebellion between the agents of the Nazi party and the lunatics in Musingen Institute or the Jews in Auschwitz. These offences are clearly extraditable.

Finally, in extradition cases like the present one it is often very easy for the fugitive offender who is charged and sought to be extradited to excuse his individual conduct by pleading by way of defence that he was forced to commit the offences charged in deference to the commands of his superior officers; howsoever that plea or defence may on the particular facts be offensive and repugnant to any civilized morality like our own, it is certainly according to our rules of procedure and practice a matter for the consideration of the trial court in Germany. If German municipal law exonerates the agent of a crime from responsibility because he was justified in obeying and executing orders from above, which are manifestly illegal and therefore punishable, it is up to the appellant to avail himself of that defence in the appropriate tribunal in Germany and not in the courts in Ghana.

DECISION

Appeal dismissed.

T. G. K.