Nesin Kaderli v Chief Public Prosecutor's Office of Gebeze, Turkey
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 28 April 2021 |
| Neutral Citation | [2021] EWHC 1096 (Admin) |
| Date | 28 April 2021 |
| Docket Number | Case No: CO/1759/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2021] EWHC 1096 (Admin)
Mr Justice Chamberlain
Case No: CO/1759/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Southey QC and Malcolm Hawkes (instructed by Taylor Rose MW Solicitors) for the Appellant
Alexander dos Santos and Hannah Hinton (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 15 April 2021
Approved Judgment
Introduction
The appellant, Nesin Kaderli, is sought by Turkey to serve a prison sentence imposed following his conviction for the rape of a girl who was initially believed to be under 15, but was found by the Turkish court to be 17. He appeals pursuant to s. 103 of the Extradition Act 2003 (“the 2003 Act”) against a decision of 16 March 2020 by District Judge Goldspring to send his case to the Secretary of State, who ordered his extradition. Permission to appeal was refused on the papers. However, at a hearing on 27 October 2020, Fordham J granted permission to appeal on two grounds, 1 and 2 below, and ordered that a third, ground 3 below, be considered on a “rolled up” basis.
The grounds of appeal are that the judge erred in concluding that extradition was not barred by:
(a) s. 87 of the 2003 Act – because there is a real risk that he will be imprisoned in Turkey on the basis of a trial that was flagrantly unfair (ground 1);
(b) s. 81 of the 2003 Act – because it appears that if extradited he might be punished by reason of the fact that he refused to pay a bribe to the prosecutor, which refusal constitutes an imputed political opinion (ground 2);
(c) s. 85 of the 2003 Act – because the respondent has not proved that the appellant was convicted in his presence, nor that he would be entitled to a retrial (ground 3).
The evidence about the Turkish proceedings
The Turkish proceedings arise from incidents on 3 and 4 April 2007. A girl ran away from home and made her way to Gebze District by minibus. She alighted near a petrol station in the early hours of the morning of 3 April. She met a man who worked there, Ferdun Mutlu. He arranged for another man, Rasim Basaran, to take her to a nearby office where she could sleep. Later that morning, Mr Mutlu joined her there. They had consensual anal sex. Mr Basaran drove them to Darica, on the seaside. In the evening of 3 April, Mr Mutlu and the girl had anal sex again. She left and returned to Gebze by minibus, arriving in the early hours of the morning of 4 April. She was intoxicated and had no money.
The appellant was working as a taxi driver. The girl got into his taxi at approximately 0130 hours. She told the police and prosecutor that he drove her to a wooded area, made her get into the back of the taxi, took her clothes off and started kissing her chest and neck harshly. He threatened her with a gun, which he fired twice into the air. He then raped her anally, using force, before taking her back to the service station at around 0400.
The girl was medically examined at the Institute of Forensic Medicine. She had injuries consistent with anal intercourse and bruises and lesions to her neck, chest and lips consistent with physical abuse. The victim identified the appellant at an identification parade. A gun matching the description provided by the victim was found at the appellant's address.
The appellant was arrested by the police on 8 April 2007 and taken into custody. He was charged with sexual assault of a minor under the age of 15, contrary to Article 103/1-a of the Turkish Criminal Code. What happened next has to be pieced together from further information documents provided by the Chief Judge of the 1 st High Criminal Court of Gebze (on 17 January 2020) and by a liaison judge on behalf of the Turkish Justice Minister and the judicial authorities (on 17 July 2019, 18 October 2019 and 22 January 2020).
As is common in civil jurisdictions, trials in Turkey can involve many separate hearings, weeks or months apart. The first hearing of the trial took place on 31 July 2007. The appellant was not present, having “run away from the corridor”. A warrant was issued for his arrest. Mr Mutlu pleaded not guilty and provided a defence statement. The victim's father also provided a statement saying that he did not want to press charges against any of the appellants.
There was a further hearing on 28 August 2007. The appellant did not attend and is described as being “on the run from police”. On 2 October 2007, there was a hearing, not at Gebze but about 50 km away at Uskudar, Istanbul. At this hearing, the girl's father said that he did not want to press charges. There were further hearings on 22 November 2007 and 28 February 2008. In both cases, the appellant is recorded as being “on the run from police”. However, the records of the Gebze Chief Public Prosecutor's Office indicate that the appellant had been arrested on 24 February 2008.
A hearing on 29 February 2008 is described as the “main trial session” for the appellant. He was brought before the court at Gebze. Counsel was appointed by the Bar Association to represent him. He pleaded not guilty and provided a defence statement in the presence of his counsel.
On the same date, in a trial session in Uskudar, Istanbul, the girl said: “I repeat the statement I gave at the prosecution, I am not complainant, I don't want to intervene in the case”. The Chief Judge's information states that:
“because the accused person has been an escapee for a while during the trial process, and because the victim resides outside the jurisdiction of this court, the statement of the victim has been taken by another court, through request for legal assistance. The accused person did not attend the hearing of the assisting court. Therefore the accused person did not in fact use his right to pose questions to the victim.”
There were three further hearings, on 27 March, 26 June and 3 July 2008. There is conflicting information about whether the appellant attended those hearings. The Chief Judge's information is that he did not; and at the hearing on 27 March 2008 he was not represented by counsel. The Chief Judge adds that his counsel attended each hearing on which essential proceeds [sc. proceedings] have been carried out”. The Justice Minister's information, by contrast, is that the appellant did attend all these hearings.
On 15 July 2008, the girl sent a letter to the court purporting to withdraw her complaint and saying that her earlier statements about the appellant had been untrue and caused by the drugs she was taking at the time.
There were two further hearings, on 6 November and 25 December 2008. The appellant did not attend either of them. His counsel was present at the second, when the court announced his conviction and sentence.
The court consisted of three judges. Reasonably detailed reasons were given. The court recorded the evidence given by the girl. In her “prosecution statement”, she had said that she had sexual intercourse with Mr Mutlu twice – the first time at about 09:30 on 3 April 2007 “upon my request”; the second time on the evening of the same day “without my consent but without any use of violence”. As to the allegation against the appellant, she had described being threatened with a black gun and then anally raped.
The judgment was based on “the allegation, defences, declarations of the victim and complainants, doctor reports, Forensic Medicine report, city police minutes and the whole content of the file considered together”. The factual findings were that “the accused took the victim to a woodsy desolate place and there, he took out a gun which was understood to be blank, and asked the victim to get undressed; when the victim refused, he fired twice in the air; scared upon that, the victim gave up her resistance; [the appellant] had anal intercourse with the victim there”. The judgment refers to “her psychological report”, what the victim had “told all the officials since the beginning”, “her statement” and “the declaration of the victim”. It appears that the court accepted this evidence as true notwithstanding her letter of retraction.
The original charges against all three co-defendants had been under Article 103/1-a and 103/2 of the Turkish Criminal Code. Article 103/1-a makes criminal “all kinds of sexual attempt[s] against children who are under the age of fifteen or against those [who have] attained the age of fifteen but lack [the] ability to understand the legal consequences of such act[s]”. Article 103/2 provides that “[i]n case of performance of sexual abuse by inserting an organ or instrument into a body, the offender is sentenced to imprisonment from eight years to fifteen years”.
The court recorded that during the course of the proceedings, “the age of the victim happened to be subject of doubt”. In order to address that doubt, a report to determine her true age was obtained from a hospital. The author or authors of the report determined that the girl was 17 years old. The court accepted this finding. It followed that the charges under Article 103/1-a were not made out. However, Article 103/1-b made criminal “[a]buse of other children sexually by force, fraud, threat of fraud”. In context, “other” must be a reference to children who are 15 or over and have the ability to understanding the legal consequences of their acts.
As to Messrs Mutlu and Basaran, the court said this:
“Considering her corrected age, as it was understood that the victim had sexual intercourse with the accused Ferdun Mutlu with her consent and she was not complainant, it was necessary to abate the criminal case brought against that accused and the criminal case brought against the accused Rasim Basaran for aiding that offence by...
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