The Russian Federation v Olessia Fotinova
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford,Mr Justice Kenneth Parker |
| Judgment Date | 26 March 2013 |
| Neutral Citation | [2013] EWHC 660 (Admin) |
| Date | 26 March 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/9426/2012,CO/9426/2012 |
[2013] EWHC 660 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
WESTMINSTER MAGISTRATES COURTDISTRICT JUDGE PURDY
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pitchford
Mr Justice Kenneth Parker
Case No: CO/9426/2012
Daniel Jones (instructed by Criminal Defence Solicitors) for the Claimant
Daniel Sternberg (instructed by CPS) for the Defendant
Hearing date: 14 March 2013
The Extradition Appeal
On 29 May 2003 the Heavy Criminal Court in Kahramanmaras, Turkey sentenced the appellant to a term of imprisonment for 3 years 10 months and 20 days for an offence of falsifying official documents. On 6 July 2005 the court varied the sentence to 3 years 1 month and 15 days. On 9 March 2009 the court ordered the execution of the sentence and sent a request to the Chief Public Prosecutor's Office that the penalty be executed. On 5 November 2010 the Chief Public Prosecutor's Office requested the return of the appellant from the United Kingdom to Turkey. The request is governed by Part 2 Extradition Act 2003. The extradition request was certified on 31 January 2011 by the Secretary of State pursuant to section 70 of the 2003 Act. On 2 March 2011 a warrant was issued by District Judge ("DJ") Evans sitting at at Westminster Magistrates Court for the appellant's arrest. He was arrested on 12 July 2011 and appeared before DJ Zani on that day. The appellant did not consent to extradition and the extradition hearing was opened. Bail was granted on conditions on 20 July 2011.
Further hearings which took place on 18 and 25 August 2011 were adjourned to enable the appellant to obtain legal representation. At the adjourned hearing on 8 September 2011 the appellant produced a bundle of documents. The appellant claimed that he had been granted refugee status. This was not so. However, he had through long residence acquired British citizenship. On 6 October 2011 the appellant also claimed that he had been convicted in his absence in Turkey. This was correct. He was, however, to his knowledge represented at his trial and he chose to be absent. On 25 October 2011 the appellant gave evidence before DJ Purdy. He gave evidence again on 24 January 2012 when he raised his physical condition as a ground for contesting his extradition. On 27 April 2012 submissions were made. The appellant appeared with a MacKenzie friend but he was not otherwise legally represented. On 8 June 2012 the appellant was represented pro bono by counsel, Mr Daniel Jones, who has represented the appellant in this appeal with conspicuous ability. Further submissions were made to DJ Purdy on the appellant's behalf. DJ Purdy reserved judgment which was delivered in writing on 12 July 2011. The judge sent the case to the Secretary of State pursuant to section 87(3) of the 2003 Act having resolved all issues raised by the appellant in favour of the requesting state. On 28 August the Secretary of State ordered the appellant's extradition to Turkey. The appellant now appeals against the order for extradition.
The proceedings in the magistrates court were tortuous and prolonged, largely due to the unsatisfactory procedures available for the award of legal aid for extradition proceedings. These were the subject of analysis by the President of the Queen's Bench Division, Sir John Thomas, sitting with Haddon-Cave J, in Stopyra v District Court of Lublin, Poland, Debreceni v Hajdu-Bihar County Court, Hungary [2012] EWHC 1789 (Admin). The present case is another example of the shortcomings of the system, at least as it then was. The appellant could not afford representation. He applied for legal aid. He was employed as a taxi-driver but could not earn while he was, for a time in custody. He paid £1,000 to be assisted by a MacKenzie friend. Several different applications for legal aid were required. Each of them was unsuccessful until the proceedings before the magistrates court had been concluded. The matter came before this court, differently constituted on 17 October 2012, when Pitchford LJ presided. On that occasion the appellant was granted an adjournment. He had recently obtained a representation order and wished to obtain expert evidence which had not been presented to the court below to support his grounds of appeal that: (i) the appellant's physical condition and (ii) conditions in Turkish prisons were such that it would be unjust or oppressive to extradite the appellant and/or there was a real risk that on return the appellant would suffer Art 3 ill treatment. I shall return to the application at paragraph 6 of this judgment.
On 21 September 1998 the appellant petitioned for divorce from his wife Dilek Guzelogly in the civil court of first instance in Turkoglu, Turkey. Mr and Mrs Guzeloglu were, at the material times, resident in the United Kingdom. The divorce petition and further documents were served at an address falsely given by the appellant as his wife's address in Turkey. In evidence before District Judge Purdy the appellant maintained that his wife was complicit. The documents were receipted purportedly by Mrs Guzeloglu in person. Since, on the prosecution's case, she had no notice of the proceedings. Mrs Guzeloglu did not appear at the hearing. However, the appellant's mother, his maternal uncle and his mother's paternal uncle, together with a resident of their village in Turkey all appeared purporting to give evidence about the breakdown of the marriage. On 3 November 1998 the petition for divorce was granted. On 18 August 2000 the judgment was served at the address previously given by the appellant and was purportedly received by Mrs Guzeloglu in person. Handwriting evidence proved that Mrs Guzeloglu was not the signatory to these documents. The address provided by the appellant had been the home address of the appellant's aunt and brother-in-law. The equivalent offence in the United Kingdom was perversion of the course of justice.
Before DJ Purdy the appellant's challenge to extradition relied in the main on the following grounds:
(i) The appellant was not present at his trial and not deliberately absent. He would not be entitled to a fresh trial in Turkey contrary to section 85(7) Extradition Act 2003;
(ii) His extradition would be incompatible with his Art 3 Convention rights contrary to section 87 of the Act;
(iii) It would be unjust or oppressive under section 91 of the Act to extradite him by reason of his physical health.
The judge found that the appellant had deliberately absented himself from his trial. There is no appeal from this finding. There was nothing in the appellant's background which demonstrated a risk that he would be selected for ill treatment. Turkey is a signatory to the ECHR and the judge found that he had been provided with no evidence that the appellant faced a real risk of ill-treatment contrary to Article 3. Finally, the judge did not accept that the appellant's physical condition was such that it would be unjust or oppressive to extradite him. The appellant now seeks to challenge the judge's findings under section 91 and section 87 of the 2003 Act relying upon the following further documents none of which, as I understand it, was adduced before the magistrates court:
(i) The appellant's further witness statements of 21 December 2012 and 24 January 2013;
(ii) An expert report from Ms Saniye Karakas dated 15 November 2012 and her second addendum report dated 12 March 2013;
(iii) An expert psychiatric report from Dr Utpaul Bose dated 26 November;
(iv) An expert psychiatric report prepared for the respondent by Dr Gareth Jenkins dated 24 January 2013;
(v) An expert report from Professor Bill Bowring relied on by the appellant in Tahir Konuksever v Turkey [2012] EWHC 2166 (Admin);
(vi) A Human Rights Association (Turkey) Prison Report 2010/11;
(vii) The U.S. State Department Human Rights Reports on Turkey for 2011;
(viii) An EU Commission working group report on Turkey dated 10 October 2012;
(ix) United States Department of State Country Report on Human Rights Practices for 2011;
(x) The United Nations International Covenant on Civil and Political Rights (13 November 2012)
Fresh Evidence
By section 104(2) Extradition Act 2003, on an appeal under section 103 the High Court may allow an appeal only if the conditions in sub-section ( 3) or (4) are satisfied. Under section 104(4) the conditions are that:
"(a) An issue is raised that was not raised at the extradition hearing or evidence is available that was not available at the extradition hearing;
(b) The issue or evidence would have resulted in the judge deciding a question before him at the extradition hearing differently;
(c) If he had decided the question in that way he would have been required to order the person's discharge."
It is contended on behalf of the appellant that had the District Judge received the evidence now available to this court he would have decided the section 91 and section 87 questions differently and, accordingly, would have ordered the appellant's discharge.
The first question is whether this evidence should be admitted. The terms upon which the hearing of 17 October 2012 was adjourned included that the appellant must serve any further evidence by 4.00 pm 16 November 2012. All of this additional material was served late. I would not propose to exclude the evidence on the ground of late service since, save for the service of the second supplemental report from Ms Karakas, the respondent has had an opportunity to deal with it. As to the supplemental report the late...
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