R (Atilla) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE JACK,Lord Justice Keene,LORD JUSTICE KEENE,Mr Justice Jack |
| Judgment Date | 10 May 2006 |
| Neutral Citation | [2006] EWHC 1203 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 May 2006 |
| Docket Number | CO/1462/2006 |
[2006] EWHC 1203 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Keene
Mr Justice Jack
CO/1462/2006
MR JOHN HARDY (instructed by Messrs Needleman Treon) appeared on behalf of the CLAIMANT
MR HUGO KEITH (instructed by the Treasury Solicitor) appeared on behalf of the DEFENDANT
The underlying issue between Mr Orhan Atilla and the Home Department is whether Mr Atilla should be expedited to Turkey under the provisions of the Extradition Act 1989. That is the appropriate Act rather than the Extradition Act 2003 because the extradition proceedings are of long standing and, under the transitional provisions of the 2003 Act, the 1989 Act continues to apply. Mr Atilla was until 1994 the manager of a bank in Bursa. He is accused of having embezzled large sums and of threatening to shoot a bank inspector. He arrived in the United Kingdom from Turkey on 19th October 1994 and was first arrested on a provisional warrant on 26th June 1996.
The present position is that, in a letter dated 23rd January 2006, the Secretary of State declined to reverse his decision made in October 2004 to order Mr Atilla to be returned to Turkey pursuant to section 12 of the Act. In these proceedings for judicial review Mr Atilla seeks to have the decision reached in that letter quashed.
The issue addressed in that letter is whether prosecution for the offences of which Mr Atilla stands accused has become barred under Turkish law by the passage of time. The letter examines the material available to the Secretary of State on that and concludes that prosecution will not be barred until 26th June 2006, so Mr Atilla should be returned to Turkey. It is that conclusion as to the barring of criminal proceedings which is the subject of attack.
It is common ground between the parties that by section 4(1) of the Act and paragraph 2(1) of the European Convention on Extradition Order 2001, SI 2001 No 962, the restrictions set out in the Convention apply, including that in Article 10. The Convention is reproduced in Schedule 1 of the Order but there is no provision in the Order which states that the Convention shall be given legal effect or which even refers to the schedule, other than in its preamble. It appears that the reference in section 4 of the Act to "the limitations, restrictions, exceptions and qualifications, if any, contained in the Order" is to be read as incorporating such limitations, restrictions et cetera as are contained in the Convention because the Convention is set out as Schedule 1 to the Order. Article 10 of the Convention provides:
"Expedition shall not be granted when the person claimed has, according to the law of either the requesting or requested party, become immune by reason of lapse of time from prosecution or punishment."
The material before the Secretary of State came from three sources: the Turkish authorities; a Turkish lawyer, Mr Mehmet Erdogan, instructed by the Secretary of State to advise him; and two Turkish lawyers, Mr Yahya Simsek and Mr Serafettin Yavuz, instructed on behalf of Mr Atilla. I will attempt a summary.
In the extradition request dated 1st July 1996 Judge Mesuit Baykara, Chairman of the Second High Criminal Court in Bursa stated that the proceedings would be prescribed on 7th October 2004 in accordance with articles 102 and 104 of the Turkish Penal Code. That is ten years after the date of the alleged threats to shoot the bank inspector. It appeared that the period provided by section 102 was ten years for embezzlement because the offence of embezzlement carries heavy imprisonment of five to ten years.
It is not in dispute that article 104 provides for the interruption of the running of time by various events namely:
"… conviction of the accused, issuance of warrants of seizure or arrest, issuance of a subpoena, upon the questioning of the accused by judicial review authorities, rendition of a decision to initiate the final investigation or the submittal of an indictment by the public prosecutor to court".
Time then begins to run again but with the limitation that the total period may not exceed the period prescribed by article 102 by more than one half. That would give a total period here of 15 years if there was an appropriate event. The extradition request of 1st July 1996 did not avert to any effect which article 104 might have.
Mr Atilla was committed under section 9 of the Act on 22nd November 2001, and brought proceedings for habeas corpus, which were dismissed on 26th June 2002. The Secretary of State then made further enquiries of the Turkish authorities. By letter of 27th April 2004 from the Turkish Ministry of Justice he was informed that the period for embezzlement was ten years and that this had begun when the indictment was filed on 17th January 1995. That starting point appears to have been taken by reason of the operation of article 104. He was also informed that the period for the offence of threatening to shoot the bank inspector was five years, which had passed. The Secretary of State therefore determined that the period for embezzlement here expired on 17th January 2005 and that was the conclusion set out in his letter of 29th October 2004, which stated that an order had been signed for Mr Atilla's return to Turkey.
That decision resulted in an application for judicial review (which did not ultimately proceed). In consequence of the application the Secretary of State asked for an assurance from Turkey that the period for embezzlement expired on 17th January 2005 and not on 7th October 2004 as had first been stated by the Bursa court. That assurance was given in a letter from the Turkish Embassy dated 3rd December 2004. But a further letter from the Embassy dated 10th December 2004 stated that the period for the embezzlement charges starting on 17th January 1995 would not expire until 17th January 2010. It confirmed that the period for the threat was five years. Further clarification was sought. On 15th December the Turkish Embassy responded that the court at Bursa had concluded that the embezzlement carried a maximum sentence of 24 years, with a primary prescription period of 15 years, which had been interrupted by the indictment on 17th January 1995.
On 11th March 2005 a report by Mr Simsek and Mr Yavuz was served on behalf of Mr Atilla. This stated that, as the punishment for embezzlement was imprisonment for six to 12 years, the prescription period was ten years. It had been interrupted by the issue of a warrant inabsentia by the Bursa Magistrates Court and again, on 17th January 1995, by the presentation of the indictment. So it had expired on 17th January 2005.
In the light of these conflicting views the Secretary of State then sought the advice of Mr Erdogan, which he provided on 7th March 2005. Mr Erdogan concluded that the maximum punishment for simple embezzlement was six to 12 years as provided by article 202 but was 16 years for the aggravated offence of embezzlement from a state bank. Under article 102 the prescriptive period was therefore ten years. Mr Erdogan stated that the Bursa court had misapplied article 13, on which the court had relied in stating in 2004 that the maximum imprisonment was 24 years and so the period was 15 years. He advised that the period had been recommenced by the Turkish warrant of arrest on 25th October 1994, by the filing of the indictment on 17th January 1995, and by Mr Atilla's provisional arrest in the United Kingdom on 26th June 1996. So the ten years ran from the last date. Mr Erdogan made it clear that whether the arrest of Mr Atilla in this country restarted the period: was not free from difficulty. He based his view that it did on a decision of the General Council of the Criminal Bench of the Supreme Court of Appeal delivered on 28th March 2000, which had considered the effect of an arrest in France.
In a further opinion faxed to the department on 13th April 1995 Mr Simsek and Mr Yavuz stated that the arrest in the United Kingdom did not restart the period; the events referred to in article 104 must occur in Turkey. They were of the view that the decision of 28th March 2000 did not bind the Bursa court and was in any event distinguishable. They stated that there were earlier contrary decisions and that distinguished legal professors took the other view.
The difference between the Turkish lawyers instructed on behalf of the parties thus came to this one point: did Mr Atilla's arrest in England restart the period in which he might be prosecuted? If it did not, in the words of article 10 of the Convention. He was immune from prosecution by reason of lapse of time.
In May 2005 the department sent Mr Erdogan's opinion together with the further opinion of Mr Simsek and Mr Yavuz to the Turkish authorities. A reply was received from the Turkish Ministry of Justice dated 9th June 2005. The letter dealt solely with the issue of what was the maximum sentence on the charges of embezzlement faced by Mr Atilla. It stated that the minimum sentence was 12 years for "specialised embezzlement". Mr Erdogan had referred to aggravated embezzlement with a maximum of 16 years. The letter did not comment on that. Nor did it comment on the issue of restarting the prescription period by Mr Atilla's arrest in England. So the letter did not advance matters. The Turkish authorities have never sought to rely on Mr Atilla's arrest in the United Kingdom nor had they expressed any view either way on that point.
The Secretary of State's letter of 23rd January 2006...
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