Tahir Konuksever v The Government of Turkey
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin,Lord Justice Davis |
| Judgment Date | 31 July 2012 |
| Neutral Citation | [2012] EWHC 2166 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 July 2012 |
| Docket Number | CO/11466/11,Case No: CO/11466/11 |
[2012] EWHC 2166 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Davis
And
Mr Justice Irwin
Case No: CO/11466/11
Mr Ben Cooper (instructed by Kaim Todner Solicitors Ltd) for the Appellant
Ms Ally Wilkes (instructed by The Crown Prosecution Service) for the Respondent
Hearing dates: 31 May 2012
Introduction
The Appellant Tahir Konuksever is a Turkish citizen. His extradition has been requested by the Government of Turkey. Turkey is a Category 2 territory within the meaning of Section 69 of the Extradition Act 2013 ["The Act"]. Mr Konuksever ["the Appellant"] appeals pursuant to Section 103 of the Act against a decision of District Judge Nicholas Evans given following written and oral evidence and argument presented on 1 September 2011, in a written judgment delivered on 15 September 2011. The Secretary of State on 14 November 2011 ordered the Appellant's extradition.
Factual Background
The Appellant was born in 1972 and is of Kurdish ethnicity. According to the Proof of Evidence from the Appellant placed before the District Judge, the Appellant's grandfather moved the family from Eastern Turkey to Aksaray where both the Appellant and his father were born. As confirmed by Professor Bowring, this is a region of Turkey where Kurds are very much in the minority. The Appellant states the family has "suffered from persistent discrimination" due to their origins.
The Appellant married in 1989 and had a baby daughter. On his account his daughter died in March 1992 because she was "murdered by some locals shooting at our house". This account is in complete conflict with the judgment of the local Criminal Court of First Instance dated 12 March 1992 concerning the death of the child. According to the court record there was a finding based on the confession of the accused persons, including the Appellant, to the effect that the Appellant's young daughter died because her sibling "Safiye", took the Appellant's hunting rifle:
"which was hanged on the wall and started to tampering it; during tampering, the rifle went off and the bullet hit 1.5 year old Fatma Konuksever who was sleeping on the floor causing her death, upon this event, the accused Tahir Filiz and Fatmana Filiz Konuksever buried the deceased child without informing any authority and without permission."
The court record suggests the Appellant was convicted of causing injury by negligence and organising a burial of his daughter without permission. He was fined.
These events do not bear directly on the extradition, however they form the beginning of wide ranging conflict between the account given by the Appellant and the court record disclosed from Turkey.
On the afternoon of 22 February 2000, local police recorded a telephone call from an anonymous informant suggesting that this Appellant and his father Dursun Ali Konuksever "dealt with firearm trafficking and kept a long barrelled rifle and pistol at their house". At about 4.00pm that afternoon police attended at the house where the Appellant lived with his wife, his mother and father and his children. The police found a Kalashnikov rifle and a 7.65 mm calibre CSM pistol concealed in the Appellant's bedroom. Both the Appellant and his father were arrested.
According to the record, the Appellant gave an account which he formally confirmed in a preliminary court hearing on the following day. He claimed that the rifle and pistol were his and his father had no knowledge of the weapons. He claimed he had obtained the weapons in 1997 and that they were bought for his own protection and that of his family. He denied dealing in guns. According to the record, when he signed this account on the afternoon of 23 February he was already represented by a defence lawyer.
On the following day 24 February 2000 the Appellant attended at the Public Prosecutors office again represented by a lawyer. He gave an account consistent with that given the previous day, the account being reduced to writing. His lawyer is recorded as saying:
"My client confessed his offence sincerely according to his statement, his father had no connection with this event. I request my client be released pending trial…….."
As a result of this preliminary investigation the matter was submitted to the Chief Public Prosecutor's Office, having been signed by a Judge, a clerk defence counsel and the accused. The Appellant was remanded in custody.
By 7 March 2000, the Appellant was still in custody, by now at the Aksaray Penal Institution. He made formal appointment of a different defence attorney on that date. On 8 March, the file was delivered with an indictment to the Criminal Court of First Instance and on 10 March the Appellant was arraigned. At this stage the charge he faced was trafficking in firearms. He indicated his intention to defend that charge.
On 30 March, the Appellant was still in custody and was produced again before the court. The Appellant accepted the charges of possession of the weapons and his advocate confirmed that "he confessed his offence before the courts sincerely". However, he emphasised that the charge of trafficking was rejected. The advocate requested the release of the Appellant pending trial, the court ordered that the Appellant's wife should be deposed on the facts and remanded him in custody, whilst also ordering an expert report on the weapons.
The weapons were tested on 5 April and the results recorded in an expert report of 10 April. Both weapons were in good working order and both were successfully test fired, using ammunition which had been seized from the Appellant's house at the same time.
On the following day 11 April the Appellant again appeared before the court. His advocate indicated there was no challenge to the examination and the expert witness report. The Appellant's wife then gave evidence to the court. She confirmed that the Kalashnikov rifle and the pistol belonged to her husband. She confirmed that the weapons were always in the separate room used by her and her husband and there was no connection between them and the Appellant's father. She went on to confirm that the weapons had remained in the home and that her husband neither took them out nor did he buy or sell weapons at all. The Appellant's advocate submitted to the court there was no evidence to sustain the trafficking charge, and the court agreed. This more serious charge was dismissed. The uncontested charges of possession stood and the court went on to decree that:
"By taking into consideration the good behaviour of the accused during the trial and his help to the court by confessing his offence his penalty would be reduced to 4 years and 2 months imprisonment and "a heavy monetary fine of 76.050.000 TL"
The Appellant was then released from custody. As we understand it, this is likely to be a common procedure where appeal is as of right and there is no procedural requirement that the prison sentence should begin immediately.
On the same day the Appellant's advocate entered Notice of Appeal, the grounds being given in a document of 28 April. The appeal appears to have been directed to penalty, on the basis that the "penalisation" was in accordance with the wrong article of the code.
To be set alongside the court records are three medical certificates from February 2000, dated 22, 23 and 24 February successively. In each case doctors signed to say that there were "no marks of battery and coercion" on the Appellant's body on physical examination. The earliest of these from 22 February bears the appearance of being typewritten. Those of 23 and 24 February bear the appearance of being generated by word processor a point made the subject of adverse comment by the Appellant. In similar fashion, there is in the papers a certificate from the Director of the "closed prison of Ankara CPA" indicating in relation to the Appellant that he was a detainee at the prison from 24 February to 11 April 2000 and "no report indicating that the detainee was subjected to any battery or maltreatment was found".
In the Appellant's Proof of Evidence placed before the District Judge, he gives an account inconsistent with the court records. The relevant passages are as follows:
"In 2000 my father's house was raided by anti terrorism police. At this time I didn't live in my parent's house. Filiz and I and our five children lived in our own house some 200 metres away. They found a Kalashnikov and a pistol. I was immediately arrested and spent 4 days in custody from the Thursday to a Monday; remember it was a Thursday as it was the day before we go to the mosque. During this time I was tortured by the police who were interrogating me.
8. I find it very hard to talk about what happened to me and it also hard to remember everything as it is like going through it all over again. I have tried to lock it away as it is too painful to remember, I still have nightmares and when asked to talk about it I get very upset and angry and find it hard to cope with my life.
9. First I was beaten with a rifle butt, and kicked again and again. I had my toenails were pulled out. And because I was not talking I was taken to a different room and required to remove all of my clothes a metal harness was placed around my buttocks and genitals almost like a chastity belt and I was suspended by chains, attached to the ceiling and I was pulled up and down like a car being winched. I was then submerged in cold water, then I was connected to something...
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