Public Prosecutor of Hamburg v Altun
| Jurisdiction | England & Wales |
| Judge | Davis J,Ouseley J |
| Judgment Date | 02 March 2011 |
| Neutral Citation | [2011] EWHC 397 (Admin) |
| Docket Number | CO/6401/2010,Case No: CO/6401/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 March 2011 |
[2011] EWHC 397 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Before: The Honourable Mr Justice Ouseley
and
The Honourable Mr Justice Davis
Case No: CO/6401/2010
Mr John RWD Jones (instructed by the Crown Prosecution Service) for the Appellant
Mr Nicholas Yeo (instructed by Stokoe Solicitors) for the Respondent
Hearing date: Thursday 10 th February 2011
MR JUSTICE OUSELEY :
The Hamburg Public Prosecutor's Office appeals against the order of District Judge Evans on 2 June 2010 at the City of Westminster Magistrates Court, whereby he discharged the Respondent whose extradition was sought on a European Arrest Warrant, an accusation warrant, for trial in Germany for a series of armed robberies which he committed in Germany in 1996.
The Respondent is a 36 year old Turkish national, a Kurd, who was granted indefinite leave to remain as a refugee on 19 January 2005, having arrived in the UK in 2004.
District Judge Evans ordered his discharge under section 12 of the Extradition Act 2003 on the grounds of double jeopardy, since he had been convicted in Turkey of those offences. The District Judge concluded that the Respondent was not convicted in Turkey until 26 April 2005 after he had left Turkey to come to the United Kingdom, and after his refugee status prevented his extradition to Turkey. The unusual feature of the case concerns the effect on double jeopardy of an amnesty in Turkey from which the Respondent benefited both before and after he left. The Respondent also seeks to argue, without a Respondent's notice, that the District Judge should have discharged him on the grounds of res iudicata/abuse of process, since a previous European Arrest Warrant issued by the same prosecutor in respect of the same offences, had led to a decision by District Judge Workman in March 2006 also discharging the Respondent on the grounds of double jeopardy.
The Facts
The offences described in the European Arrest Warrant were committed in Germany between February and June 1996. They are serious offences of armed robbery with a gun or knife, at gambling establishments, in the course of which individuals were attacked.
The Respondent, who later admitted his role in these robberies, fled back to Turkey from Germany in 1996 to avoid prosecution. Turkey did not permit the extradition of its nationals, but was willing to prosecute its nationals for offences committed abroad. Germany asked Turkey to prosecute the Respondent for the robberies and provided some evidence with which it could do so, though it appears that the Turkish authorities may not have fully informed the German authorities of what it was doing. There may have been a want of judicial formality in Germany's request.
On 11 May 2001, the Respondent was arrested in Turkey and remanded in custody. At a court hearing on 21 June 2001 he admitted four of the robberies and was again remanded in custody. On 7 June 2002, at the next court hearing, he admitted all the offences as described in the indictment. His lawyer argued that the maximum sentence for these robberies in German law was 15 years. That is not disputed. He would have been liable to a life sentence had he committed those robberies in Turkey. When Turkey assumed jurisdiction to try a national for an offence committed abroad, its law prohibited a sentence greater than the maximum which could have been imposed in the country where the offences were committed. Again that is not disputed.
The Respondent's lawyer argued at this June 2002 hearing that the consequence of a new Turkish sentencing provision, colloquially described as an amnesty and which I shall explain in more detail later, was that even if the Respondent were sentenced to the maximum of 15 years, he would have to be released straight away. It appears from the court record that the court did not rule on that argument but sought further information from Germany. The Respondent remained in custody, and did so after the next court hearing on 5 July 2002; further information was still awaited from Germany. However on 19 July 2002, after having spent 434 days or just over 14 months in custody, the Respondent was released.
The next hearing after 5 July 2002 was on 11 October 2002. There is no further record until 2 July 2004, when documents were still awaited from Germany. No one was then present and the hearing was again further adjourned until October 2004. There is no suggestion that the Respondent ought to have been present at any of those hearings after release on 19 July 2002.
Precisely what happened after that is unclear. On 26 April 2005 the Court of Major Criminal Offences in Kayseri sentenced the Respondent to 15 years imprisonment for these offences. District Judge Evans found that it was at that hearing, after the Respondent had entered the United Kingdom and had been accepted as a refugee, that he was actually convicted by the Turkish court of the offences he had admitted on 7 June 2002. Mr Nicholas Yeo, for the Respondent, says that 7 June 2002 was the date of conviction. An appeal against sentence was entered because of changes in Turkish law not connected with the amnesty, which may have led to the sentence being reduced on 3 February 2006 to 8 years. (Germany contended in the European Arrest Warrant that, as of June 2007, there was a further appeal against that sentence pending in Turkey).
District Judge Evans understandably found the subsequent Turkish court documents not altogether easy to follow. Nor have I. He focused particularly on whether there was a final and enforceable judgment, and did so because he thought the crucial question in relation to double jeopardy was whether the sentence in Turkey had been fully and completely executed. I shall return to that.
My analysis does not contradict that of District Judge Evans, but with further assistance on the documents, I conclude that, as a matter of form, the sentence of 15 years became final with effect from 11 November 2008, but the effect of the early release and amnesty provisions in combination was that there was no time to be served in custody, so that date was also treated as the Respondent's conditional release date. The sole condition of his release was that he commit no further offences in Turkey until September 2022, the full release date. As I understand it, were he to commit another offence during that period, he would be at risk of imprisonment for the robberies.
The Certificate for Expiration Date of Sentence details the 434 days spent in custody on remand as a deduction from sentence. There is a further conditional release date in 2015 which is neither explained nor apparently relevant. I cannot reconcile the 15 years sentence referred to in that Certificate with the evidence of an 8 year sentence being passed on appeal unless the 15 year sentence were re-imposed on a further appeal, but nothing appears to turn on that. This all appears very much to have been a matter of paper keeping, since it was the prosecution which made the application to the court for conditional release, when conditional release on the papers had already occurred.
However all that may be, District Judge Evans had a document dated 9 April 2010 from the Ministry of Justice in Ankara, which recounted some of the dates which I have referred to, but concluded quite clearly: "In this connection please be informed that the (defendant) is not wanted by our authorities".
The sentencing provisions in Turkey are not altogether clear, save that it applied the German maximum of 15 years, not its own higher maximum. It also appears to be the case that sixty percent of a Turkish custodial sentence is not actually served in custody, but on conditional release. Only forty percent is served in custody. There is a stray reference to fifty percent in District Judge Evans' judgment which appears to arise from an endeavour to understand the relevance of a particular date. At all events, a 15 year sentence would only have required the Respondent to serve 6 years before conditional release.
The impact of the amnesty is then very significant. Following serious prison disturbances largely caused by severe overcrowding, the Turkish Parliament introduced by legislation what can be called an amnesty to reduce the prison population significantly. The language of the relevant legislation as in force from 23 May 2002 appears to take 10 years off the total sentence for a wide range of serious offences committed before 1999. The Respondent's offences fell into the relevant categories. However, the way in which the legislation appears to be implemented, and its meaning may have been lost in translation, is that the 10 years is taken off the normal custodial part of the sentence, in this case therefore off the 6 years rather than off the 15 years.
This explains the submissions of the Respondent's lawyer to the court in June and July 2002 and the Respondent's release on 19 July 2002: even if he were to receive the maximum sentence of 15 years, he would have had no time to serve. The language of the Turkish lawyer in documents he has sent to the Respondent is unclear at times, but there was no question either of the Respondent having been released on bail or of him being required to serve any period at all in addition to the 434 days, notwithstanding an apparent 15 year sentence. The remarkable effect of this amnesty can be seen by contemplating that, if arrested in June 2002, the...
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