Nesin Kaderli v Chief Public Prosecutor's Office of Gebze, Turkey
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 06 January 2022 |
| Neutral Citation | [2022] EWHC 13 (Admin) |
| Docket Number | Case No: CO/1759/2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 13 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Chamberlain
Case No: CO/1759/2020
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: 5 October 2021
Approved Judgment
Introduction
This judgment follows a second hearing in this appeal. The first hearing took place on 15 April 2021. I handed down my first judgment on 28 April 2021: [2021] EWHC 1096 (Admin).
The first hearing and judgment
At the first hearing, three grounds were advanced by the appellant by way of appeal 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 the appellant's case to the Secretary of State.
I dismissed Grounds 1 and 2 for the reasons set out at [49]–[63] and [64]–[66] respectively. The issues the subject of the second hearing arise from Ground 3 in this way:
(a) Under s. 85 of the 2003 Act, the judge is required to ask (i) “whether the person was convicted in his presence” (s. 85(1)); (ii) if not, “whether the person deliberately absented himself from his trial” (s. 85(3)); and (iii) if not, “whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial” (s. 85(5)). This latter question can only be answered in the affirmative if the person would have “(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required” and “(b) the right to examine or have examined witnesses against him and to obtain the examination of witnesses on his behalf under the same conditions as witnesses against him” (s. 85(8)). This reflects the language of Article 6(3)(c) and (d) of the European Convention on Human Rights (ECHR).
(b) In each case, it is for the requesting state to prove to the criminal standard that the answer is “Yes”. If it cannot prove that the answer to at least one of these questions is “Yes”, the judge must order the person's discharge: s. 85(7): see [68] of my judgment.
(c) The judge dealt with those questions briefly, holding at [223] of his judgment that the appellant “was present at some hearings but when he was not it was [because] he chose to deliberately absent himself”. This was wrong for the reasons I set out at [70] of my judgment: it could not account for what happened on 29 February 2008. On that day, two hearings took place, in different locations. At one of these, the appellant was produced from custody. At the other, the main prosecution witness gave evidence, confirming the contents of her written statement. Neither the appellant, nor his lawyer, attended that hearing.
(d) At [74], I held that, on the material then before me, it was not possible to say that the appellant would be entitled to a retrial and therefore not possible to answer any of the questions in s. 85(5) in the affirmative.
(e) In those circumstances, I held at [76] that the appropriate course was to adopt the procedure used in Grecu v Cornetu Court (Romania) [2017] EWHC 1427 (Admin), [49]–[51] and Zelenko v Latvia [2019] EWHC 3840 (Admin), [25]–[26]. I granted permission to appeal on Ground 3 and adjourned the appeal without making a final order, so as to allow a final opportunity to the Turkish authorities to: (i) supply an undertaking that the appellant will be offered a retrial; and (ii) identify the domestic legal provisions under which this undertaking will be given effect.
Events since the first hearing
Since my first judgment was handed down, the respondent has provided a judgment from Presiding Judge Mustafa Paksoy, sitting with other two members of the 1st High Criminal Court of Gebze, dated 5 May 2021, along with a covering letter dated 18 May 2021. The respondent says the judgment contains a guarantee that the appellant will be entitled to a retrial, which satisfies the requirement in s. 85(5) of the 2003 Act. The material part of the judgment reads as follows:
“Nesin Kaderli, son of Cemal and Nediye, born on 05/01/1976 in Haskova whose TR ID No is 23102274674, who was convicted to an imprisonment of 6 years and 8 months with the decision Docket Numbered 2007/145 and Decision Numbered 2008/417 of our Court, SHALL BE ENTITLED TO THE RIGHT TO A RETRIAL pursuant to ‘Article 3 of 2nd Additional Protocol to European Convention on Extradition’ in the event that he was extradited to our country for his imprisonment of 6 years and 8 months for the offence of sexual abuse of children with the writ dated 25/12/2008 and Docket Numbered 2007/145 and Decision Numbered 2008/417 of our Court.”
This was supplemented by further information dated 18 May 2021 from Judge Abdullah Aydin on behalf of the Minister Deputy Director General of the Ministry of Foreign Affairs, which included this:
“1) Concerning the fulfilment of the retrial guarantee;
The right to retrial is set out in par. I of Art. 3 of the Second Additional Protocol to the European Convention on Extradition, to which our country and the UK are parties. The approval of the Second Additional Protocol to the European Convention on Extradition, was ratified by Law No. 3732 of 08/05/1991 and the text of the Convention was published in the Official Gazette No. 21002, dated 25/09/199l.
Article 3 of Ratification Law No. 3 732 regulates how the guarantee for retrial is to be provided and what actions are to be taken in case the person is extradited:
If a person — about whom there is a judgment in absentia given by a Turkish court — is found in one of the countries which are party to the Convention and if the said country requests a guarantee for the person — requested to be extradited — about the right of re-trial in accordance with the first sub-paragraph of the Article 3 of the Protocol, without taking into consideration whether the decision is final or not, the competent court shall render a decision on re-trial of the person in question, and after the person is extradited, s/he shall be subject to this decision. Following the extradition, the judgment in absentia shall be served to the extradited person and if s/he does not object to this decision within seven (7) days since the date of service, the judgment in absentia shall be executed without retrying.
If the person is extradited in accordance with the aforementioned regulations, the execution of the proceedings regarding the retrial is exclusively within the jurisdiction of the court and these transactions are carried out in accordance with the general provisions of the Criminal Procedure Code, Law No. 5271, at the discretion of the court.
2) Concerning the representation of the person by a legal counsel:
In the trial process, conducted under Art. 150 of the Code of Criminal Procedure, the accused person is required to appoint a legal counsel for himself. If the suspect or the accused declares that he cannot afford an attorney, one will be is appointed for him upon his request.
3) Concerning the issue of the accused posing questions to the witness:
According to Art. 36 of the Constitution, ‘Everyone has the right to claim and defend as a complainant or an accused and to a fair trial before the judicial authorities by employing legal remedies’.
According to Art. 147 of the Code of Criminal Procedure, during the questioning, the accused is reminded that he may want to collect concrete evidence in order to disperse the suspicions, and he is given the opportunity to eliminate the reasons of suspicion against him and to put forward points in his favor.
According to Art. 201 of the Code of Criminal Procedure, the public prosecutor, attorney or the legal counsel, attending the hearing, may pose directly questions to the accused, the participant, witnesses, experts and other persons, invited to the hearing in accordance with the discipline of the hearing. The accused and the participant can also ask questions through the president of the court or the judge. When the question is challenged, the presiding judge decides whether the question should be sustained or not.”
The respondent filed written submissions inviting the court to dismiss the appeal on the basis that a sufficient assurance had now been given to allow the court to answer the question posed by s. 85(5) in the affirmative. The appellant responded and applied for permission to adduce fresh evidence, namely: (i) the expert report of Ms Saniye Karakas, dated 20 June 2021; (ii) a European Parliament Resolution of 19 May 2021; and (iii) Transparency International's Corruption Perception Index 2020. There were then further written submissions from the respondent and appellant.
On 27 July 2021, I ordered that a further oral hearing be listed and permitted the respondent to file evidence responding to the evidence of Ms Karakas and to the appellant's written submissions. The appellant was also entitled to file evidence in reply.
On 9 August 2021, the CPS served a request for further information. The respondent provided a response on 27 August 2021.
On 30 September 2021, the appellant made an application seeking the permission of the court to adduce as further fresh evidence on this appeal the report of Ms Begüm Gedik, a Turkish attorney-at-law, dated 24 September 2021.
On 5 October 2021, at the hearing, the appellant sought permission to adduce further fresh evidence, namely a trial observation report concerning the trial of Adnan Oktar, drafted by Lionel Blackman and Sarah Heritage from the Solicitors' International Human...
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