Ibrahim KOC v Turkish Judicial Authority
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 12 May 2021 |
| Neutral Citation | [2021] EWHC 1234 (Admin) |
| Date | 12 May 2021 |
| Docket Number | Case No: CO/1297/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1234 (Admin)
Mr Justice Fordham
Case No: CO/1297/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Saoirse Townshend (instructed by Sonn Macmillan Walker) for the appellant
Stuart Allen (instructed by the Crown Prosecution Service) for the respondent]
Hearing date: 28.4.21 and 29.4.21
Final Judgment
Introduction
This is an extradition case about serious offending, a trial in absence, a significant passage of time, and a family in extreme difficulties. Permission to appeal was granted on all grounds by Chamberlain J on 2 October 2020. Neither party resists applications made by the other to adduce fresh evidence: I grant those applications and will consider all the material. The Appellant is aged 37 and is wanted for extradition to Turkey. That is in conjunction with an Extradition Request (“the Request”) issued on 21 November 2018 and certified by the Home Secretary on 15 February 2019. For reasons set out in a judgment dated 28 January 2020, DJ Zani (“the Judge”) sent the case to the Home Secretary who on 25 March 2020 ordered the Appellant's extradition. The Request relates to a conviction and sentence imposed by the criminal court in Turkey by a verdict on 9 June 2008, but whose effective date was not until 6 April 2015. By that verdict the Appellant and 3 co-accused were sentenced to 18 years custody for offences of robbery (12 years) and kidnapping (6 years). The legal effect of that sentence under Turkish law, as explained in the Request, was that the Appellant has 7 years 2 months 16 days to serve but would (if of good conduct) be released after 5 years 2 months 16 days (with the further 2 years on probation). Unchallenged fresh evidence before this Court, which I accept, explains that changes in Turkish law as a result of the pandemic would now mean release (if of good conduct) after approximately 3 years 3 months 22 days in custody (with 17 months on post-release supervision). The mode of hearing was a remote hearing by Microsoft Teams. Both Counsel were satisfied, as was I, that that mode of hearing involved no prejudice to the interests of any person. By having a remote hearing we eliminated any risk to any person from having to travel to or be present in a court room. I am satisfied that the mode of hearing was justified and appropriate. The open justice principle was secured. The case and its start time were published on the cause list, together with an email address usable by any member of the press or public who wished to observe the hearing. The hearing was recorded. In this judgment, Deborah, Tammy, Tanya, Beth and Kevin are not the individuals' real names.
Factual Overview
The factual overview in this section gives a contextual framework for understanding the case and the issues. I am satisfied that its contents have a solid evidential platform, are consistent with the findings of the Judge, and are not the subject of any material dispute. On 21 September 2002 Sedat Kurt reported at a Turkish police station that he had been robbed and kidnapped over the course of 3 days (19 to 21 September 2002). Later that day the Appellant and 3 others were arrested. Items were seized including a flick-knife from the Appellant. The Appellant was detained over the next 4 days, was questioned, gave a statement to the police, and gave his family address. Meanwhile, Mr Kurt gave identification evidence. On 24 September 2002 the Appellant appeared in court. He was released. On 30 September 2002 an indictment was filed and on 11 October 2002 a preliminary proceedings report was completed. The Appellant was summoned to appear at court on 17 December 2002, which he did. At that hearing the Appellant gave a statement to the judge. He confirmed his address. Asked whether he wished to do so, the Appellant stated a preference for the purposes of Article 226 of the Criminal Procedure Code (exemption from the obligation to be present during subsequent hearings), which was granted. The Appellant's statements in September 2002 and December 2002 were to the effect that he had been present but had not participated in any robbery or kidnapping carried out by the other co-accused. The Appellant had no legal representation at any of these stages.
On 13 January 2003 Mr Kurt had petitioned to withdraw his complaint, but the case was not discontinued. In April 2005 an expert report confirmed that the flick-knife was an illegal knife. At a hearing on 18 July 2005 the Turkish court assigned counsel to represent the Appellant pursuant to Article 150 of the Code. The court-assigned counsel was Advocate Gunes. She attended a hearing on 10 November 2005. She did not attend a hearing on 10 April 2008 at which Mr Kurt gave evidence. At a hearing on 9 June 2008 the court gave its verdict: convicting all 4 of the defendants and giving each the same sentence. Advocate Gunes attended that hearing (9 June 2008) and on 25 June 2008 received a notification of the conviction and sentence. She then filed an appeal on the Appellant's behalf, as a consequence of which the conviction file was delivered (15 July 2008) to the Court of Cassation Chief Prosecutor's Office (CPO) for appellate review. A notification relating to the appeal was sent to Advocate Gunes on 20 May 2010. On 14 June 2012 a decision was taken to return the appeal file, on the basis that it was unclear whether the Appellant was aware of and supported the appeal. On 23 August 2012 (as recorded in the court file) documents relating to the appeal were served on the address which the Appellant had given in 2002. On 6 April 2015 the verdict (of 9 June 2008) was approved by the Court of Cassation: this became the “effective date” of the verdict. Finalisation statements were issued on 12 May 2015 and arrest warrants for the Appellant were issued on 13 May 2015. In April 2015 the Turkish Police had visited the then family home – an address which does not appear to be the same as the Appellant gave in 2002 – looking for the Appellant, and were told that he was abroad. The family made contact with the Appellant and together they instructed a new lawyer (Advocate Akgun) who filed an application for an appeal on 29 May 2015. That application was rejected without consideration. On 31 May 2018 the Appellant instructed another new lawyer (Advocate Say) who filed a fresh application for an appeal on 24 August 2018 which was rejected on 3 December 2018. A Turkish domestic warrant of arrest was issued on 24 September 2018 and steps were taken culminating in the Request (21 November 2018).
The Appellant had left Turkey for Germany in April 2004. There was no control measure or security measure applicable to him which prevented him from doing so. No condition was imposed on him requiring him to remain in contact or to notify any change of address. There was no obligation on him to appear at court. In May 2004 the Appellant came to the United Kingdom, having obtained a visa. By October 2004 he was registering with the Inland Revenue here and in December 2004 made a business visa application. In 2005 he met his partner Deborah, a British citizen. In November 2005 the Appellant made an application for National Insurance. In 2006 he moved in with Deborah and Tammy, Deborah's 2-year-old daughter (born August 2003) from a previous relationship. In the years to come the Appellant became Tammy's stepfather. In May 2007 the business visa application was refused and the Appellant was subsequently for a short time held in immigration detention until released on bail with the help of immigration lawyers. In May 2008 the Appellant and Deborah had a daughter, Tanya, whose birth the Appellant registered with the UK authorities. In July 2009 they suffered a terrible bereavement: the death within a few hours of Beth, a daughter born prematurely. The death was registered by the Appellant. Deborah and the Appellant were married later in 2009, which was also registered. In 2012 the Appellant obtained a spouse visa giving a durable entitlement to stay in the UK. In February 2012 Deborah and the Appellant had a son, Kevin, again registered with the authorities by the Appellant. By 2013 the Appellant was self-employed and operating a solo food truck business. In May 2013 he visited the Turkish Consulate in London and successfully obtained a deferral of his Turkish military service: his UK address is clearly recorded in the Turkish official documentation. In July 2013 he returned to Turkey for 17 days. In April 2015 the Appellant's family contacted him about the police visit. That is when they together instructed Advocate Akgun. The Appellant has not returned to Turkey since 2015. In 2016 Tammy (aged 12) was diagnosed with a mental health condition by CAHMS. By November 2017 (aged 14) Tammy was suffering from an eating disorder, which led to her first admission to a psychiatric unit in August 2018 (aged 15). I will return to relevant events and evidence which post-date the Extradition Request (November 2018). Before I turn to the grounds of appeal, there are a number of topics which it will be helpful to identify and address.
The Offending and the Custodial Term
The Appellant maintained his innocence in the statements he gave in 2002 and he has continued to maintain it. He also says he was threatened, intimidated and beaten during his 4 days in custody in September 2002. As the Judge recorded: the Appellant in his statements “accepted presence but denied participation”; but that “version of events was clearly rejected by the trial court” in 2008, and the four defendants “received the same sentence, which appears to reflect equal culpability”. The Judge proceeded on the basis that the Appellant has been “convicted of very serious offences”. He also...
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