Ender Ozbek v Government of Turkey
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans |
| Judgment Date | 17 December 2019 |
| Neutral Citation | [2019] EWHC 3670 (Admin) |
| Date | 17 December 2019 |
| Docket Number | No. CO/1364/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3670 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Lord Justice Dingemans
Mr Justice Lane
No. CO/1364/2019
and
Mr J. Atlee (instructed by Atlee Green & Associates) appeared on behalf of the Applicant.
Mr B. Seifert (instructed by Crown Prosecution Service) appeared on behalf of the Respondent.
Introduction
This is the hearing of an appeal against the judgment of District Judge (Magistrates' Court) John Zani (“the Judge”) dated 7 February 2019. It raises issues about the prison conditions in which the appellant Ender Ozbek (“Mr Ozbek”) will be held if extradited because of overcrowding, and the effect of an assurance provided by the Ministry of Justice of the Republic of Turkey dated 16 January 2019.
The Respondent, Government of Turkey, sought the extradition of Mr Ozbek in respect of a conviction for rape of a minor (aged 14). The Judge found that the case was not one that had “any political or terrorism undertones”, and this was common ground before us. Turkey is a category 2 territory for the purpose of the Extradition Act 2003 (“the 2003 Act”).
Following a trial at which he was convicted, Mr Ozbek was sentenced in Turkey on 12 June 2008 to prison for 6 years 11 months and 10 days. This is translated to a period of imprisonment of 2 years, 9 months and 13 days' imprisonment pursuant to the “Law No. 947 on Execution of Prison Sentences and Sanctions”
Mr Ozbek appealed his conviction in Turkey, but the appeal was dismissed by the Court of Cassation on 20 December 2012. Mr Ozbek was told about this result and decided not to return to Turkey as he was, by then, living in the United Kingdom. On 22 February 2013 a search was made for Mr Ozbek in Turkey, but he was not found – and he has not served any part of his period of imprisonment in Turkey.
On 14 April 2018, Mr Ozbek was arrested on a warrant issued under s.71 of the 2003 Act at Stansted Airport. He was taken to Westminster Magistrates' Court and did not consent to his extradition. A hearing was ordered and bail was refused. We were told in submissions today that Mr Ozbek has, as at today's date, served 612 days of his sentence and some 407 days are outstanding.
An extradition request was made on 20 April 2018 and on 25 May 2018 a certificate was issued by the Secretary of State for the Home Department (“the Secretary of State”) pursuant to s.70 of the 2003 Act.
Extradition was resisted on human rights grounds pursuant to s.87 of the 2003 Act. It was said that Mr Ozbek's extradition would be incompatible with the European Convention on Human Rights (“ECHR”) to which domestic effect has been given by the Human Rights Act 1998 because: first, the prison conditions infringed Art.3 of the European Convention on Human Rights; and secondly, there was an impermissible interference with Mr Ozbek's rights to a private and family life under Art.8 of the European Convention on Human Rights.
The proceedings below and the judgment of the Judge
The substantive hearing took place on 25 January 2019. Just over a week before the hearing, a written assurance dated 16 January 2019 was provided by the Turkish authorities. This set out that Mr Ozbek would be held in Yalvac Type T Closed Prison (“Yalvac prison”). The assurance noted that the capacity of Yalvac prison was 400 persons and there were 177 detainees as at 14 January 2019. The assurance provided at p.16:
“In conclusion, we hereby assure you that, in case Ender Ozbek is extradited to Turkey, he will be accommodated in humane conditions, the prison designated for him to serve his sentence, meets the international design and material standards for prisons and the prison is not overcrowded. We guarantee that in no way are any inhumane and ill-treatments allowed in Turkey during serving imprisonment sentences for any crime types”.
The Judge heard evidence from Mr Ozbek about his concerns in relations to his treatment in prison on return.
The Judge also heard evidence from Professor Roy Morgan, Professor Emeritus of Criminal Justice at the University of Bristol who is a well-known expert on prison conditions and who has in the past visited prisons in Turkey. Professor Morgan noted that Turkey had, since 2015, ceased to give permission to the Committee for the Prevention of Torture (“CPT”) permission to publish reports following inspections of prisons in Turkey. He noted that there had been an improvement in cooperation by Turkey with the CPT between 1997 and 2015 before this new period of apparent disengagement. In oral evidence, Professor Morgan noted that there had been a visit by the UN Special Rapporteur in December 2016 and confirmed that there had been no pilot judgments against Turkey in the European Court of Human Rights. However, he also reported on the fact that non-governmental organisations were being prevented from visiting Turkish prisons. There was overcrowding at between 125 and 200 per cent of capacity in some prisons and there was a programme of prison building which was being undertaken.
There was also evidence from a Turkish qualified lawyer who practised in England and Turkey but the Judge, for detailed reasons set out in the judgment and which it is not necessary to repeat, did not place any weight on that evidence.
In his judgment the Judge found that Turkey was aware of its obligations under the ECHR, and that this was not a case with political or terrorism undertones. The Judge found that Mr Ozbek would be held in Yalvac prison, then housing 177 prisoners with capacity for 400 prisoners. The Judge found that:
“… the Turkish authorities have also confirmed in writing that [Mr Ozbek] will be kept in Art.3 compliant conditions and again, absent clear and compelling evidence to the contrary, this court should proceed on the basis that Turkey will abide by its convention obligations and the specific terms of the written assurance”.
The Judge found that the Turkish authorities had measures to protect Mr Ozbek in the event of any vulnerabilities because of his conviction for a sexual offence. A separate challenge under Art.8 of the ECHR was dismissed.
The Judge therefore did not find that Mr Ozbek's extradition would be incompatible with his human rights and made an order sending the case to the interested party, the Secretary of State, pursuant to s.87(3) of the 2003 Act.
On 28 March 2019 the Secretary of State ordered Mr Ozbek's extradition pursuant to s.93(4) of the 2003 Act.
The appeal
Mr Ozbek sought permission to appeal on the grounds that his extradition would infringe his rights under Art.3 and Art.8 of the European Convention on Human Rights. He was granted permission after a renewed oral hearing only on the ground relating to Art.3 of the European Convention on Human Rights and the reliability of any assurances given.
Mr Atlee submitted that the Judge was wrong to ignore Professor Morgan's concerns about overcrowding in Turkish prisons. He said that the assurance provided in this case was inadequate and that, particularly in the light of the continuing evidence of problems disclosed by the fresh evidence, the Court should seek further assurances from Turkey or remit the matter so that the District Judge should seek further assurances. Mr Seifert said that the Judge had heard Professor Morgan's evidence and properly reflected it in the judgment. The Judge had taken the right approach to the assurance and that the assurance was sufficient, and the position disclosed by the fresh evidence was only what had been disclosed before, so that it should not even formally be admitted. We are grateful to Mr Atlee and Mr Seifert for their helpful and succinct written and oral submissions.
It is apparent that it will be necessary to consider:
(1) the legal approach to appeals in extradition cases;
(2) the relevant principles relating to Art.3 of the European Convention on Human Rights;
(3) the relevant principles relating to assurances;
(4) the relevant principles relating to the admission of fresh evidence on appeal; and
(5) whether the appeal ought to be allowed because the Judge was wrong to find that Mr Ozbek' s extradition was compatible with his rights under Art.3 of the European Convention on Human Rights.
The approach to appeals in extradition cases
It is established that, when considering what approach to take to a challenge to a District Judge's findings about real risks of infringement of human rights, the Court must have “a very high respect for the findings of fact”, “we must also have respect for the DJ's evaluation of the expert evidence”, and “the decision of the DJ can only be successfully challenged if it is demonstrated that...
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