The Government of Turkey v Necmi Ozbek
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston,Lord Justice Laws |
| Judgment Date | 10 October 2014 |
| Neutral Citation | [2014] EWHC 3469 (Admin) |
| Docket Number | CO/1903/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 October 2014 |
[2014] EWHC 3469 (Admin)
Lord Justice Laws
Mr Justice Cranston
CO/1903/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr D Sternberg (instructed by CPS Special Crime Division) appeared on behalf of the Appellant
Mr G Irwin (instructed by Joseph Hill and Co) appeared on behalf of the Respondent
Introduction
The government of Turkey appeals against the decision of District Judge Evans in the Westminster Magistrates' Court to discharge Necmi Ozbek, the Respondent, under section 79(3) of the Extradition Act 2003 ("the 2003 Act"). The Respondent is an Alevi Kurd and was granted refugee status in 2004. He now has British citizenship. Turkey seeks him to face a charge of murder. The District Judge held that extradition was barred by reason of extraneous circumstances under section 81 of the 2003 Act in that, if extradited, the Respondent would be likely to be prejudiced in prison because of his ethnicity and political opinions.
Background
The background is this. On 21 April 2011 the Aggravated Felony Court No 6 of Barkirkoy sent a request for the Respondent's extradition. That was on the basis of a preliminary indictment issued against the Respondent and three co-defendants in 2001. The indictment alleged that on 2 July 2001 the Respondent and one of the co-defendants, Murat Ture, had murdered Cemal Yayla in a district in Istanbul. Yayla was stabbed and shot. At the relevant time the Respondent and Ture were friends and business partners operating a cab stand. The victim was a person who used drugs. He had asked the Respondent and Ture for 5,000 Turkish lira. They refused. Yayla started to fight with them and grabbed a broken water bottle from a nearby coffee shop. He used the bottle to attack the Respondent, who aimed a gun and warned Yayla not to approach. Yayla hit the Respondent on the arm with the bottle. Ture then took the gun and shot Yayla several times. The Respondent and Ture fled the scene and gave the gun to two other persons, who disposed of it. Those other persons were charged with separate offences on the same indictment. Proceedings against another co-defendant, Ibrahim Nisan, accused of stabbing the victim, were commenced by a separate indictment. At the time of Yayla's killing the perpetrators could not be identified.
In mid-2002 the Respondent came to this country in the back of a lorry and claimed asylum. He said that he was a member of the People's Democratic Party of Turkey (HADEP), a pro-Kurd party proscribed in 2003, which is the political wing of the Kurdistan Workers' Party, the PKK. He said that he had worked mainly in textiles with his brothers. He gave an account of being detained and mistreated by the police on ten occasions over a number of years because of his HADEP membership, with the authorities also accusing him of supporting the PKK. On the last occasion, on his account, he had been detained for six to seven days and had been severely tortured and humiliated. To support his application for asylum there was a medical report with the doctor recording his account of mistreatment and making an assessment of his mental health.
Despite concerns about his credibility, a caseworker for the Secretary of State granted him asylum in March 2004 on the basis that it was highly likely that he would be subject to ill-treatment due to his political opinions were he returned to Turkey. Although he had never produced documents as to HADEP membership, which he said he would, the caseworker accepted that he was a member of that party and had also supported the PKK. Ultimately, in 2008, the Respondent was granted British citizenship.
In the proceedings in the Westminster Magistrates' Court earlier this year to consider the Turkish extradition request, the Turkish authorities provided information in the form of a letter dated 26 September 2013 from Judge Candemir, the Deputy Director General of Prisons and Detention Centres. That set out the requirements of Turkish law to provide treatment for unwell prisoners, relevant provisions of Turkish law relating to non-discrimination in the treatment of prisoners, the way in which prisoners are allocated to prisons and the provisions for a proper diet, living conditions and health care. It described the means by which detainees can lodge complaints regarding their treatment and the arrangements for oversight of Turkish prisons by monitoring boards and others.
Also before the District Judge was a letter from the President of the Aggravated Felony Court No 6 at Bakirkoy, containing specific guarantees of the Respondent's rights on his return to Turkey regarding the choice of counsel and the opportunity to gather and challenge evidence. The President stated that the Respondent's extradition was not sought for a political or terrorist offence. His ethnic origin would play no part in his trial and there would be no discrimination because of this. The Respondent's support for HADEP or any other organisation had no importance and he would not face ill-treatment because of this or any other reason.
Before the District Judge there were also a number of documents going to the detention, if any, of the Respondent in Turkey before he left in 2002. The Chief Public Prosecutor's Office of Bakirkoy reported that there was no record that the Respondent had been detained in any police station or had received medical treatment for mental illness during any detention. The Chief of the Anti-Terror Branch police stated that an examination of their archives uncovered no information or documents regarding the Respondent's detention between 1991 and 2001. There were also letters relating to three police stations between 1990 and 1999 that there was no record regarding a detention of a person with the Respondent's name.
As well, the District Judge had evidence from the Respondent, his wife and various other persons supporting his case. The Respondent denied that he had ever had a taxi business or that he knew Ture.
In a reserved judgment, the District Judge stated that the evidence before him suggested that the Respondent had fled Turkey more through fear of arrest on the murder charge than his claimed persecution because of his HADEP membership. He strongly suspected that the Respondent was a fugitive but applying the criminal standard could not be sure. The District Judge considered the grant of refugee status in 2004 and whether the subsequent grant of British citizenship made extradition an abuse of process. He accepted that because of Article 33 of the Refugee Convention it would have been an abuse of process to extradite the Respondent if he still had refugee status. However, he was no longer a refugee since he had become a British citizen. (Although he did not cite the case, the District Judge in this respect was applying the judgment of my Lord, Laws LJ, in ZN (Afghanistan) v Entry Clearance Officer [2008] EWCA Civ 1420, paragraphs 29 to 34. That case went on appeal on a different point at [2010] UKSC 21; [2010] 1 WLR 1275.) As a British citizen the Respondent now has other protections.
The District Judge then turned to whether extradition was barred by extraneous considerations under section 81 of the 2003 Act. Save in exceptional circumstances, he held, an extradition court should accept the findings and conclusions which led to the decision to grant asylum. If there was strong and compelling evidence that the whole basis of the asylum claim was fraudulent, that would constitute exceptional circumstances. Notwithstanding that the evidence from the police stations needed some discounting because the perpetrators of torture were unlikely to keep records, it went some way to undermine the Respondent's account. However, it was insufficient and the District Judge proceeded on the basis that the Respondent had been mistreated as he had claimed in his asylum application. The District Judge was somewhat surprised that the Respondent's brother in Turkey seemed to have no trouble, even though he was supposed to be openly a HADEP member. Indeed, he concluded that a document that the brother had obtained in Turkey about the Respondent's HADEP membership was fraudulent. He was not satisfied that the Respondent had any current or recent involvement with HADEP.
In his conclusion about whether extradition was barred by extraneous considerations under section 81, the District Judge said this:
"48… . [F]ollowing the grant of refugee status then surely [the Respondent] would be a person of interest and someone the Turkish security services might very well want to question if he popped up on their radar in Turkey. Any such questioning about his HADEP involvement would give rise to a reasonable chance even a serious possibility, not that he might be prejudiced at his trial but quite possibly prejudiced whilst detained. Indeed, regardless of whether so questioned, if detained in prison, then if the other prisoners or prison staff got to know that...
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