Veli Yilmaz and Erkan Yilmaz v Government of Turkey

Hearing date: 30 January 2019

Approved Judgment

This is the judgment of the court to which we have both contributed.

The Appellants are sought by the Turkish authorities for the prosecution of offences committed in 2010 in Turkey described as “plunder”, “torment” and “restriction of freedom of person by using coercion, threat or deceit imputed on the suspect”. The factual allegations include kidnapping, threats to kill and serious ill treatment of a victim being held against his will. The maximum sentences for the alleged offences in Turkish law are up to 15 years imprisonment for “plunder”, 5 years for “torment” and 7 years for the offence involving restriction of the victim's freedom. It is sufficient for present purposes to say that these are allegations of serious offences and that the Appellants if convicted would be likely to spend a substantial period of time in prison.

Both the Appellants were arrested and brought before Westminster Magistrates' Court on 12 May 2017. The case was heard over three days between 4 ^th and 7 ^th December 2017 by District Judge Vanessa Baraitser. The case was then adjourned to enable the Turkish government to respond to a recently served expert report and for final submissions to be made in writing. In the event no further information was received from the Turkish authorities and, after final written submissions had been lodged, the judge issued a written decision dated 20 February 2018.

The judge rejected all the grounds of challenge put forward on behalf of the Appellants. These were (1) a contention that extradition was barred under section 81 of the 2003 Act by reason of extraneous considerations, namely that the requests for extradition were motivated by reason of the Appellants' Kurdish ethnicity or their political opinions; (2) that if extradited the Appellants would be exposed to a real risk of being subjected to a flagrant denial of justice in Turkey so as to render extradition incompatible with Article 6 of the ECHR; and (3) that extradition would expose them to a real risk of being treated in a manner which breached their rights under Article 3 of the ECHR by reason of prison conditions in Turkey. The District Judge accordingly decided to send the Appellants' case to the Secretary of State. A Minister of State signed an extradition order in respect of both Appellants on 17 April 2018.

The Appellants applied for permission to appeal to this court. Permission was initially refused on the papers by Elisabeth Laing J on 3 October 2018. On a renewed oral application, Garnham J granted permission solely in relation to the ground based on Article 3 and refused it on all other grounds. He directed the matter to be listed for an appeal hearing before a Divisional Court.

The hearing and decision in the Magistrates' Court

DJ Baraitser had before her reports from Professor Rod Morgan, an experienced and respected expert witness on the subject of prison conditions. Professor Morgan noted that Turkey had signed and ratified the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment in early 1998. Since then the Committee for the Prevention of Torture and Inhuman or Degrading Punishment (“the CPT”) have raised concerns about an allegedly widespread use of torture by the police and a dramatic increase in the prison population resulting in overcrowding and poor conditions, although Turkey has constructed new prisons in order to attempt to deal with the overcrowding issue. If remanded pending trial it was likely that the Appellants would be remanded in the prison closest to where the alleged offences occurred, namely Bursa “E-Type” Prison.

Professor Morgan had no information concerning the then level of occupancy of that prison nor the conditions there. The most recent inspection of an E-Type prison by the CPT had been in 2013 when they visited three prisons (not including Bursa) of which two had overcrowding and poor conditions. He expressed the opinion that Bursa prison was likely to be overcrowded too. He wrote:

“5.3 Bursa is Turkey's fourth largest city (population 2.35 million) in NE Anatolia on the sea of Marmara and lies approximately 100 miles south of Istanbul by road. Bursa has a large E-Type prison with a stated capacity for 1000 prisoners. It is reasonable to assume that Veli Yilmaz will be held on remand at Bursa prison.

5.4 I have never been to Bursa prison and neither has the CPT. I know of no reliable information regarding the current occupancy of Bursa prison or of conditions there. Further, as indicated above, we have no very up to date [reports] from the CPT regarding prisons in general and E-Type prisons in particular due to the failure of the Turkish authorities to authorise publication of recent CPT reports. It follows that I have no alternative but to fall back on rather old CPT data regarding E-Type prisons other than that at Bursa and draw some conclusions from my visits to Maltepe Prisons 2 and 3 [L-Type prisons] in 2015 and 2017.

As to overcrowding in Turkish prisons generally, Professor Morgan wrote:-

“4.5 We appear now to have entered a new dark phase. The last CPT report to be published was in January 2015 for a visit undertaking by the CPT in June 2013. Since then, there have been four CPT visits (in June 2015, April 2016, August 2016 and May 2017). None of which reports to date have been published. It is not unreasonable to speculate why that should be the case. The August 2016 CPT visit, for example, was specifically to monitor what the Turkish authorities were doing with the thousands of persons (estimates vary between 35,000 and 70,000 arrested following the failed coup on 15 July 2016). The CPT press release for the August 2016 visit included the information that the Committee had, inter alia, been to a “basketball court” which was being used to detain arrestees.

4.6 The new coyness on the part of the Turkish authorities to reveal what is happening in custodial sites includes their refusal to grant me access in the present case, in marked contrast to the permission granted in March 2015 in the case of Ross Charles v Turkey and coincides with what I learned about NGOs' access to prisons when I was in Turkey in early 2017.”

Professor Morgan cited an interim report by Mr Neils Melzer, the UN Special Rapporter on Torture, who visited Turkey from 27 November to 2 December 2016. Mr Melzer recorded that he was permitted to see everything he asked to see and acknowledged the stresses placed on the Turkish authorities as a result of the failed coup and the mass arrests that followed it. On prison overcrowding Mr Melzer's interim report stated:-

“A major concern is that all visited facilities (except closed prison no.9 of the Silivria Penitentiaries Campus) were significantly overcrowded with occupancy ranging from 125% to more than 200% of the actual capacity. In some institutions the overcrowding appeared to result from the recent influx of inmates following the massive arrests after the failed coup. However, in other locations, the overcrowding as alleged to have been persistent for several years. This overcrowding has had a significant negative impact on prompt access to medical care as well as on recreational activities, working opportunities, training activities and the frequency of family visits.”

Professor Morgan's conclusion (at paragraphs 7.3) was as follows:-

“I conclude that there is a substantial risk that if Veli Yilmaz is extradited to Turkey he will be held in conditions breaching Article 3. I also conclude that the Turkish authorities have provided no information and have refused inspection access, such that the known existence of this substantial risk might be dispelled.”

Professor Morgan gave oral evidence before the District Judge. He said that he was unable to comment on the likelihood of maltreatment of the two Appellants. The only time he had visited a Turkish prison in an extradition context was when he inspected the Maltepe prisons in 2015 and 2017 in connection with the requested extradition from the UK of Mr Ross Charles, a gay man. He had been surprised on that occasion to find that special provision was in fact made available for LGBT prisoners. He was allowed on each visit to conduct a proper inspection, including interviewing prisoners alone. He accepted that the UN Special Rapporteur had been given access to certain Turkish prisons in November and December 2016 and added that it would have been a serious matter for this access to have been refused. He noted that none of the three inspection visits from the CPT since the July 2016 coup had yet resulted in a published report.

On the Article 3 issue, the District Judge, having referred to the decisions of this court in Elashmawy v Italy[2015] EWHC 28 (Admin) and of the Strasbourg court in Mursic v Croatia (2017) 65 EHRR 1, held:-

“52. It is for the Requested Persons to establish that there are substantial grounds for believing that, if extradited, each will face a real risk of being treated in a manner which breathed his Article 3 right. The Requested Persons submit that the test set out above is met. I reject this submission for the following reasons:

53. First, Turkey is a member of the Council of Europe and has the benefit of a presumption...