The Government of the Republic of Türkiye v Cihan Demir

Hearing dates: 23 rd & 24 th July 2024

and applications to adduce further evidence and materials dated 6, 12, 15 and 16 August 2024

Approved Judgment

This judgment was handed down remotely at 12.00 Noon on 17 th September 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Lord Justice Dingemans and

Introduction and issues

This is the judgment of the Court. We heard three appeals against the judgments of District Judges (Magistrates' Court) (“DJ(MC)”) in which the Government of the Republic of Türkiye (“the requesting state”) sought extradition. The common issue on the appeals was whether, if extradited, there is a real risk that the rights of Cihan Demir, Erdinc Uckac and Aykut Sahin (“the requested persons”) under article 3 of the European Convention on Human Rights (“ECHR”) would be breached. This involved consideration of the prison conditions in which the requested persons will be held if extradited, and the extent to which there has been breach or compliance with the “Yalvac assurance” given by the requesting state in previous extradition cases. The Yalvac assurance is that the requested persons will be held, if extradited, in Yalvac T Type Closed Prison (“Yalvac”) with a minimum personal space of 4 square metres. The Yalvac assurance has been provided consistently since 2019 and was provided in each of the three cases the subject of this appeal. Also in issue was the effect of any breach of the assurances and the reliability of the Yalvac assurances given in each of these cases by the requesting state; and whether this court should, at this stage of the proceedings, require further assurances from the requesting state.

The warrants were conviction warrants in the cases of Mr Demir and Mr Sahin. The case of Mr Uckac involved an accusation warrant. As well as the common issue relating to article 3 of the ECHR, there are issues discrete to each appeal. The requesting state appeals the finding of the DJ(MC) Heptonstall that Mr Demir was not sought for an extradition offence. Mr Sahin appeals the decision of DJ(MC) Sternberg to dismiss his claim that extradition to the requesting state would infringe his rights under article 8 of the ECHR. A challenge under article 3 of the ECHR was not raised below, but permission has been granted to raise it on appeal against the decision of DJ(MC) Sternberg and to adduce fresh evidence from Professor Morgan. Permission for Mr Uckac to appeal on any grounds other than breach of article 3 of the ECHR was refused. Mr Uckac renews the application for permission to appeal on three of the grounds on which permission was initially sought.

We heard oral submissions from: Mr Fitzgerald KC and Ms Malcolm KC on the article 3 issues; from Ms Malcolm KC and Ms Townshend on the extradition offence issue for Mr Demir; from Mr Hall and Mr dos Santos on the article 8 ECHR issue for Mr Sahin; from Mr Seifert and Mr dos Santos on the renewed application for permission to appeal for Mr Uckac. We are very grateful to counsel and their respective legal teams for their helpful written and oral submissions.

Following the hearing the requesting persons made an application to adduce fresh evidence consisting of the advanced unedited version of concluding observations on the fifth periodic report of Türkiye (“the concluding observations”) by the United Nations Committee Against Torture (UNCAT). This was adopted on 25 July 2024 and published on 26 July 2024. This was therefore published just after the oral hearing before us had concluded. The requesting state brought to the Court's attention to the judgment of DJ(MC) Tempia in The Government of the Republic of Türkiye v McCarthy ( McCarthy) which was handed down on 26 July 2024, which again was just after the conclusion of the hearing before us. In response to the requesting state's application to adduce the judgment in McCarthy the requested persons made an application dated 15 August 2024 to adduce a witness statement from Professor Morgan. None of the parties suggested it was necessary to have, or requested, a further oral hearing to deal with the fresh evidence and materials.

By the conclusion of the oral hearing, and following the making of the further applications after the conclusion of the oral hearing, it was apparent that the following issues need to be determined: (1) whether the fresh evidence and materials sought to be adduced by the parties after the hearing should be admitted; (2) whether there is a real risk that the rights of the requested persons under article 3 of the ECHR would be breached by reason of the conditions of the prisons in which they are likely to be held in Türkiye; (3) the extent to which there has been breach or compliance with the Yalvac assurance given by the requesting state in previous extradition cases and the effect of any breach of the assurances on the reliability of the Yalvac assurances in these appeals; (4) whether this court should, at this stage of the proceedings, require further assurances from the requesting state; (5) whether Mr Demir was sought for an extradition offence; (6) whether the extradition of Mr Sahin would infringe his rights under article 8 of the ECHR; and (7) whether Mr Uckac should have permission to appeal on any his renewed grounds.

The factual background

Türkiye is a Part 2 Territory under the Extradition Act 2003 (“the 2003 Act”) which issued separate requests for the extradition of the three individual requested persons resident in the United Kingdom on 12 April 2021 (Mr Uckac), 4 August 2022 (Mr Demir), and 16 November 2022 (Mr Sahin). The requests were challenged by each of the requested persons leading to the three judgments below.

Evidence about prison conditions in Türkiye

There was evidence before DJ(MC) Heptonstall hearing Mr Demir's case on prison conditions in Türkiye. This came from further information provided by the Government of Türkiye on 30 November 2022, 13 April 2023 and May 2023 and oral evidence before the judge from Professor Rod Morgan and a written statement from Dr Karakas whose report was admitted as hearsay under section 30(2) Criminal Justice Act 1988. We had before us the fresh evidence admitted by order of Mrs Justice Heather Williams of 18 April 2024 of Fiona Haddadeen and up to date reports from Professor Morgan and Dr Karakas and further information provided by the Government of Türkiye of May 2024 about the transfer of a further prisoner with a Yalvac assurance, Hawar Abdulla Yousef.

Professor Morgan was accepted by DJ(MC) Heptonstall to be an expert in prison conditions with 40 years' experience in writing about custodial conditions and he had inspected prison conditions in many countries and held many positions of responsibility. Professor Morgan had visited Turkish prisons in 1992, 1994, 2015 and 2017, but since then had been denied access by the requesting state and therefore unable to conduct any more recent visits.

There have been long standing concerns expressed by a range of bodies including the Committee for the Prevention of Torture (“CPT”) which is considered the most authoritative provider of evidence regarding custodial conditions in Europe. The European Convention for the Prevention of Torture (“ECPT”), of which the requesting state has been a signatory since 1988, gives the CPT an unfettered right to inspect, firsthand and without warning, all places of detention in state parties where citizens are held on the authority of the state.

Overcrowding in the Turkish prison estate has been a constant concern which has been compounded by a dramatic growth in prison numbers over the last few decades. A penal building programme has not kept pace with the rise in prison numbers. In 2000 there were less than 50,000 prisoners. In August 2021 there were 291,198 prisoners in Türkiye in a prison system with a total capacity of 233,194 prisoners, representing overcrowding approaching 25%. On 5 September 2023 there were 407 prisons with a capacity for 298,314 prisoners containing a prison population of 252,683, representing 15% under occupancy. In December 2023 there were 403 prison establishments with a total capacity for 296,502 prisoners with 291,194 prisoners being held, 40,000 more than three months earlier. The most up to date figure from the Turkish authorities are that as at 2 May 2024 329,151 prisoners were being held in 403 prison establishments, which was an increase of 30,000 prisoners, which was not explained only by seasonal variations. The increased capacity of the prison system is now being outpaced by the increase in the number of prisoners.

The CPT report of 2020 following a visit carried in May 2019 described great overcrowding with extremely cramped accommodation, a large number of prisoners without their beds sleeping on mattresses on...