Extraterritorial Prosecution for Murder

by Roger Alford

There is an interesting story in today’s New York Times about the prosecution of a man in Montenegro for a murder he allegedly committed in New York in 1990. According to the report, authorities in 1990 found Mary Beal in pieces, stuffed in garbage bags that were strewn in Brooklyn near the foot of the Brooklyn Bridge, the police soon identified the man they believed killed her. Droplets of blood were found in his home. The taxi he drove for a living had suddenly disappeared. And he had his wood floors sanded down. After seventeen years on the run, last Saturday the police in Montenegro arrested the man, whom they identified as Smailj Tulja, 66, in his home in the outskirts of the capital, Podgorica.

And then there is this paragraph:

The United States does not have an extradition treaty with Montenegro, but law enforcement officials say prosecutors in Montenegro have agreed to try Mr. Tulja for Ms. Beal’s murder. A prosecutor from the Brooklyn district attorney’s office will probably travel there to lend assistance in the case next month, according to Kyle Reeves, an assistant district attorney in Brooklyn.


Is it just me or does this criminal prosecution not sound quite unusual? What are we to make of the application of these constitutional provisions to this case:

The Trial of all Crimes … shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed. Article III, §2

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury…. Fifth Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…. Sixth Amendment


Perhaps one might draw a distinction from the fact that Mr. Tulja apparently is not an American citizen, but I’m not sure why that would make a difference given these circumstances. Can prosecutors avoid these constitutional protections by trying him in a foreign court?

And then on the other side of the coin, why is a court in Montenegro prosecuting someone for a single murder that occurred in New York? I can hardly imagine that it is an international law violation, and if not, then on what grounds does a Montenegran criminal court have jurisdiction over extraterritorial crimes of this sort?

I’m not a criminal law expert, so perhaps others can help me out.

http://opiniojuris.org/2007/02/23/extraterritorial-prosecution-for-murder/

One Response

  1. Roger,

    The situation actually seems to be rather clear, at least from a European perspective. International law allows a state to exercise its criminal jurisdiction over its own nationals, wherever they might commit the crime, if the state in which the crime was committed is unable to conduct a trial (the so-called active personality principle). This is precisely the case here, because of a lack of an extradition treaty.

    Both the Criminal Code of Montenegro and the previously valid Criminal Code of the Federal Republic of Yugoslavia (Arts. 136 and 106, respectively) prescribe that the criminal law of Montenegro (Yugoslavia) may be applied to a Montenegrin national who commits a crime abroad, but is apprehended on Montenegrin territory and is not extradited to the foreign country concerned.

    Accordingly, the prosecution in this case will NOT be conducted by a US prosecutor, but by a public prosecutor of Montenegro, and pursuant to Montenegrin law. The US prosecutor will be there to assist and observe, and the NY Times article says as much. US constitutional guarantees therefore just don’t come into play at all. It is the Montenegrin constitution and laws which apply, together with international human rights law.

    Incidentally, Montenegro could exercise criminal jurisdiction even if a foreigner commits a crime against a foreigner outside Montenegrin territory, as long as that is a crime against international law, and the suspect is apprehended in Montenegrin territory, per the principle of universal jurisdiction which has existed in Yugoslav law for decades. Unlike the repealed Belgian law, however, universal jurisdiction in absentia is not possible. Regards,

    Marko

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