Government of Turkey v Ozgur Tanis
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dingemans,Mr Justice Johnson |
| Judgment Date | 21 June 2021 |
| Neutral Citation | [2021] EWHC 1675 (Admin) |
| Date | 21 June 2021 |
| Docket Number | Case No: CO/3765/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1675 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Dingemans
Mr Justice Johnson
Case No: CO/3765/2020
Nicholas Hearn and Hannah Burton (instructed by CPS) for the Appellant
Joel Bennathan QC and Claire Stevenson (instructed by Morgan Has Solicitors) for the Respondent
Hearing date: 10 June 2021
Approved Judgment
The appellant seeks the extradition of the respondent to face trial on an allegation of attempting “to separate a part of the territory of the State under the sovereignty of the State from the Administration of the State”. On 5 October 2020 DJ Zani refused the extradition request and ordered that the respondent be discharged, on the grounds that:
(1) The appellant might be prejudiced at his trial by reason of his apparent links to and/or espoused support for the Kurdistan Workers' Party (“the PKK”), such that extradition was barred by section 81(b) Extradition Act 2003;
(2) Extradition would not be compatible with the prohibition of inhuman or degrading treatment or punishment under Article 3 of the European Convention on Human Rights (“ECHR”), having regard to the risk of (a) long term solitary confinement, and (b) a whole life sentence without a right of review;
(3) Extradition would not be compatible with the right to a fair trial under Article 6 ECHR.
DJ Zani dismissed other challenges to extradition, including the respondent's contention that extradition would be unjust or oppressive by reason of the passage of time since he is alleged to have committed the extradition offence.
The appellant appeals against DJ Zani's order discharging the respondent. The respondent seeks to cross-appeal on the ground that the District Judge should have found that extradition was barred by reason of the passage of time.
The extradition request and further information
On 28 May 2019, the appellant requested the extradition of the respondent for the offence identified in paragraph 1 above. The offence was said to have comprised two separate incidents:
(1) On 10 October 1997, the respondent blocked a highway by cutting down trees, stopping traffic at gun point, forcing victims to get out of their cars, “controlled their identity cards and… made propaganda about the illegal terrorist organization [and] grabbed the money, identity cards, driving licences and other documents of the victims”, and
(2) On 3 April 1999, the respondent participated in the strangulation of two people with a rope, thereby killing them.
The evidence against the respondent is said to derive from 4 members of the PKK. The request states that the sentence prescribed for the offence is “aggravated life imprisonment.”
The respondent served expert evidence which suggested that, amongst other matters, the respondent would not receive a fair trial in Turkey, that he would be at risk of a sentence of “aggravated life imprisonment” and that this would potentially result in him spending many years in solitary confinement. In January 2020 the appellant was asked for further information, including as to whether an assurance would be given about prison conditions, what “aggravated life imprisonment… means in practical terms [including whether the respondent would be] subjected to solitary confinement as a matter of course”, whether there is any data to show the acquittal rates for persons alleged to be members of the PKK, and what response the appellant wished to make to the expert evidence that had been served by the respondent.
The appellant provided further information in response to this request. It was denied that the respondent would be exposed to ill-treatment in Turkey. It was said that none of the accused persons that had been tried for similar offences had sought legal remedies for ill-treatment. It was denied that the respondent would “be exposed to unjust trial and abuse due to his Kurdish ethnicity” and it was said that because every terrorist organisation might have members from different ethnic origins, the suggestion “is clearly unacceptable.” A copy of Article 25 of The Law on Execution of Penalties and Security Measures no 5275 was provided. It came into force on 1 June 2005. It states:
“ Execution of aggravated life imprisonment
(1) The main principles of the regime for the execution of aggravated life imprisonment are set out below: a) The convict shall be accommodated in a single room. b) He shall have the right to walk and do exercises in the open air for one hour a day. c) Depending on risk and security considerations and on his effort and good behaviour in rehabilitation and treatment activities, the time for which he goes out and does physical exercises in the open air may be extended and he may be allowed, to a limited extent, to have contacts with convicts who stay in the same unit with him. d) He may carry out an artistic or occupational activity which is possible where he lives and which is considered appropriate by the administrative committee. e) In circumstances where it is considered appropriate by the administrative committee of the institution and once every fifteen days, he may make a telephone call to the persons specified in (t) below for up to ten minutes. t) He may be visited by his spouse, descendants and ascendants, siblings and guardian for up to one hour a day and with intervals of fifteen days, on the days, at the times and under the conditions specified. g) He may in no case be employed outside the penal execution institution or granted a leave. h) He may not participate in any sport and rehabilitation activity other than those specified in the internal regulations of the institution. i) The execution of his sentence may not be suspended in any manner. All health measures to be implemented for the convict shall be implemented in the penal execution institution except for medical tests and requirements or, if this is not possible, in the single-person and high-security convict room of a fully-equipped State or university hospital.”
An assurance was provided that the respondent would, if extradited, be kept in a newly established prison, “Yalvaç T Type Closed Prison”, and details were provided as to the facilities in the prison and the cell space that would be available. The assurance was in terms that have previously been accepted by the courts – see Osbek v Turkey [2019] EWHC 3670 (Admin) at [37].
The appellant did not directly answer the questions about aggravated life imprisonment and solitary confinement, beyond providing a copy of Article 25. Nor did the appellant answer the question about acquittal rates for members of the PKK.
The evidence before District Judge Zani
The extradition hearing was due to be heard in April 2020 but was adjourned because of the covid-19 pandemic. The hearing took place in September 2020.
The District Judge heard evidence from the respondent, and three expert witnesses called on behalf of the respondent: Professor Bowring and Mr Park (in relation to human rights in Turkey), and Professor Morgan (in relation to prison conditions in Turkey). The District Judge also received supporting evidence from members of the respondent's family, and from his solicitor. The respondent additionally relied on extensive documentary evidence (which was drawn on by the expert witnesses), including reports from the Council of Europe's Committee for the Prevention of Torture (“CPT”) and the US State Department.
The respondent's account is that he was born in South East Turkey in 1976. He is of Kurdish ethnicity and an Alevi Muslim. The family moved to Istanbul when the respondent was still young. His parents and sister still live in Turkey. His brother has been recognised as a political refugee in Germany, and is now a German national. When the respondent was at school, he came into contact with PKK supporters. He became involved in Kurdish left wing politics, and this got him into trouble with the authorities. In July 1998 he was detained by anti-terrorist police for two days and was accused of undertaking “separatist activities” in Istanbul. The police, he says, tortured him and threatened to kill him if he continued with his activities. He left Turkey for Germany in November 1998. He applied for asylum, but this was refused. He came to the UK in December 1998. He was subsequently naturalised as a British citizen on 16 August 2010. Whilst in the UK he has studied, married and had a family, and he now works in the catering industry. He has not committed any offences in the UK. The respondent says that his name has been “falsely implicated” in the alleged offences, and that he had sought asylum in the UK at the time of the alleged offences.
Professor Bowring is a professor of law and a barrister. He has given expert evidence in relation to human rights in Turkey on many occasions. His evidence is that the respondent's sympathy with the Kurdish population generally, and the PKK, means that the prospects of him being able to have a fair trial in Turkey are very remote indeed, and that he will be at increased likelihood of ill-treatment (or even threat to life) in custody. He says that since 15 July 2016 over 4,000 judges and prosecutors have been dismissed or moved, and over 1,300 lawyers have been placed under criminal prosecution. He considers that this amounts to an “assault on the ability of advocates to represent their clients, and on the independence of the judiciary” such that “there is no longer the rule of law in Turkey.” Further, the evidence (including from bodies such as the US State Department) of persecution of Turkey's Kurds is such that there is “a considerable risk that [the respondent] will not be able to receive a fair trial in Turkey.”
Professor Morgan...
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