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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Government of Turkey v Ozgur Tanis [2021] EWHC 1675 (Admin) (21 June 2021) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2021/1675.html Cite as: [2021] EWHC 1675 (Admin) |
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QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE JOHNSON
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GOVERNMENT OF TURKEY | Appellant |
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- and – |
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OZGUR TANIS | Respondent |
____________________
Joel Bennathan QC and Claire Stevenson (instructed by Morgan Has Solicitors) for the Respondent
Hearing date: 10 June 2021
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Crown Copyright ©
Mr Justice Johnson:
(1) The appellant might be prejudiced at his trial by reason of his apparent links to and/or espoused support for the Kurdistan Workers' Party ("the PKK"), such that extradition was barred by section 81(b) Extradition Act 2003;
(2) Extradition would not be compatible with the prohibition of inhuman or degrading treatment or punishment under Article 3 of the European Convention on Human Rights ("ECHR"), having regard to the risk of (a) long term solitary confinement, and (b) a whole life sentence without a right of review;
(3) Extradition would not be compatible with the right to a fair trial under Article 6 ECHR.
The extradition request and further information
(1) On 10 October 1997, the respondent blocked a highway by cutting down trees, stopping traffic at gun point, forcing victims to get out of their cars, "controlled their identity cards and… made propaganda about the illegal terrorist organization [and] grabbed the money, identity cards, driving licences and other documents of the victims", and
(2) On 3 April 1999, the respondent participated in the strangulation of two people with a rope, thereby killing them.
"Execution of aggravated life imprisonment
(1) The main principles of the regime for the execution of aggravated life imprisonment are set out below: a) The convict shall be accommodated in a single room. b) He shall have the right to walk and do exercises in the open air for one hour a day. c) Depending on risk and security considerations and on his effort and good behaviour in rehabilitation and treatment activities, the time for which he goes out and does physical exercises in the open air may be extended and he may be allowed, to a limited extent, to have contacts with convicts who stay in the same unit with him. d) He may carry out an artistic or occupational activity which is possible where he lives and which is considered appropriate by the administrative committee. e) In circumstances where it is considered appropriate by the administrative committee of the institution and once every fifteen days, he may make a telephone call to the persons specified in (t) below for up to ten minutes. t) He may be visited by his spouse, descendants and ascendants, siblings and guardian for up to one hour a day and with intervals of fifteen days, on the days, at the times and under the conditions specified. g) He may in no case be employed outside the penal execution institution or granted a leave. h) He may not participate in any sport and rehabilitation activity other than those specified in the internal regulations of the institution. i) The execution of his sentence may not be suspended in any manner. All health measures to be implemented for the convict shall be implemented in the penal execution institution except for medical tests and requirements or, if this is not possible, in the single-person and high-security convict room of a fully-equipped State or university hospital."
The evidence before District Judge Zani
"Ozgur Tanis must by any standard be said to be at the greatest risk of custodial treatment and conditions breaching Article 3 in Turkey. He is of Kurdish ethnicity and it is claimed that he was in 1997-9 an active member of a proscribed, separatist, terrorist organization, the PKK, with which the Turkish state is effectively at war. Furthermore, in that capacity Ozgur Tanis allegedly engaged in acts of terrorism including kidnapping and murder. As the extradition warrant makes clear, if convicted of these offences he faces a sentence of 'aggravated life imprisonment', the most severe sentence to which any Turkish citizen is liable. 'Aggravated life imprisonment' means, according to Article 47 of the Turkish Penal Code, whole life imprisonment during which the prisoner is ordinarily held in a cell by himself, with very limited opportunity to associate with other prisoners and with visits from immediate family only. The CPT (following the 2015 ECtHR judgement in Vinter & Others v United Kingdom) condemns such provisions, arguing that the conditions within which life sentence prisoners are held should be based on the discretionary decisions of the prison authorities based on periodic risk assessments of the prisoner's behaviour".
"The application of an isolation-type regime is a step that can have very harmful consequences for the person concerned and can, in certain circumstances, lead to inhuman and degrading treatment. The CPT is of the firm view that the imposition of such a regime should be based on an individual risk assessment, not the automatic result of the type of sentence imposed…
…
51. Possibilities for a more developed regime for prisoners sentenced to aggravated life imprisonment are foreseen in Article 25.1 c) and d) 6; the CPT recommends that the Regulation on the application of the LESSM exploit these possibilities to the full.
However, beyond this, the CPT considers that the very philosophy underlying Article 25 of the LESSM should be rethought. The decision whether or not to impose an isolation-type regime should lie with the prison authorities and always be based on an individual risk assessment of the prisoner concerned; further, the regime should be applied for as short a time as possible, which implies that the decision imposing it should be reviewed at regular intervals."
[Emphasis in original]
The judgment of District Judge Zani
"147. I bear in mind throughout that Turkey is a member of the Council of Europe and is a signatory to the European Court of Human Rights.
148. I have given very careful consideration to the substantial body of expert evidence received, particularly from Prof. Bowring, Mr Park and - to a lesser extent - Prof. Morgan, as well as the various International Reports to which my attention has been drawn.
149. Noting the scathing evidence provided by the above experts and International reports, I feel driven to conclude that, in the event that he were to be returned, there is a serious possibility for believing that, if extradited, OT will suffer s.81 (b) prejudice by reason of his apparent links to / espoused support for the PKK.
150. Accordingly extradition must be refused on this ground."
Statutory framework
Grounds for resisting extradition
"81 Extraneous considerations
A person's extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that—
(a)the request for his extradition (though purporting to be made on account of the extradition offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality, gender, sexual orientation or political opinions, or
(b)if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions."
"82 Passage of time
A person's extradition to a category 2 territory is barred by reason of the passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have—
(a)committed the extradition offence (where he is accused of its commission), or
(b)become unlawfully at large (where he is alleged to have been convicted of it)."
"87 Human rights
(1) If the judge is required to proceed under this section (by virtue of section 84, 85 or 86) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998 (c. 42).
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited."
(1) There are substantial grounds for believing that there is a real risk of the requested person being subjected to torture, or inhuman or degrading treatment or punishment contrary to Article 3 ECHR – see Soering v United Kingdom (1989) 11 EHRR 439 at [91].
(2) There is a risk of a flagrant denial of the right to a fair trial under Article 6 ECHR – see Soering v United Kingdom (1989) 11 EHRR 439 at [113].
Right of appeal
"105 Appeal against discharge at extradition hearing
(1) If at the extradition hearing the judge orders a person's discharge, an appeal to the High Court may be brought on behalf of the category 2 territory against the relevant decision.
…
(3) The relevant decision is the decision which resulted in the order for the person's discharge.
(4) An appeal under this section—
(a) may be brought on a question of law or fact, but
(b) lies only with the leave of the High Court.
(5) Notice of application for leave to appeal under this section must be given in accordance with rules of court before the end of the permitted period, which is 14 days starting with the day on which the order for the person's discharge is made."
"106 Court's powers on appeal under section 105
(1) On an appeal under section 105 the High Court may—
(a) allow the appeal;
(b) direct the judge to decide the relevant question again;
(c) dismiss the appeal.
(2) A question is the relevant question if the judge's decision on it resulted in the order for the person's discharge.
(3) The court may allow the appeal only if the conditions in subsection (4) or the conditions in subsection (5) are satisfied.
(4) The conditions are that—
(a) the judge ought to have decided the relevant question differently;
(b) if he had decided the question in the way he ought to have done, he would not have been required to order the person's discharge.
(5) 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 the relevant question differently;
(c) if he had decided the question in that way, he would not have been required to order the person's discharge.
(6) If the court allows the appeal it must—
(a) quash the order discharging the person;
(b) remit the case to the judge;
(c) direct him to proceed as he would have been required to do if he had decided the relevant question differently at the extradition hearing.
…"
"116 Appeals: general
(1) A decision under this Part of the judge or the Secretary of State may be questioned in legal proceedings only by means of an appeal under this Part.
…"
Ground 1: s81(b) – prejudiced at trial
Submissions
Discussion
"22. It is common ground that in order to succeed under this heading, the applicant must establish "a reasonable chance", or "substantial grounds for thinking", or "a serious possibility" that he might if returned suffer in the way foreseen by [the statutory provision]: see Fernandez v Government of Singapore (1971) 1 WLR 987, 994, per Lord Diplock.
23. It is also important to emphasise that [the statutory provision] requires us to assess the state of mind of the Czech authorities at the time of making the extradition request, so as to establish whether or not its purpose was to punish for discriminatory reasons. Moreover, [the statutory provision] requires us to predict prejudice which the applicant might suffer as a result of punishment, detention or restriction for discriminatory reasons if returned."
Ground 3: Article 6 – right to a fair trial
Ground 2A: Article 3 – solitary confinement
Submissions
Discussion
"The execution of the penalty of a convict who cannot continue his life in solitary in prison conditions due to a severe illness or disability or who are evaluated to constitute no severe or substantial danger in terms of social security may be deferred until his/her recovery…"
"is bound to determine whether, in the particular circumstances of the case, there are substantial grounds to believe that, following the surrender of that person to the issuing member state, he will run a real risk of being subject in that member state to inhuman or degrading treatment, within the meaning of article 4.
To that end, that authority must, pursuant to article 15(2) of the Framework Decision, request of the judicial authority of the issuing member state that there be provided as a matter of urgency all necessary supplementary information on the conditions in which it is envisaged that the individual concerned will be detained in that member state."
Ground 2B: Article 3 – irreducible whole life term of imprisonment
Submissions
"OT faces the possibility of a sentence of up to 36 years imprisonment and the reasonable inference is that, if such a sentence is imposed there is no prospect of any reduction, which appears to be contrary to the principles laid down in Vinter, Murray and McLaughlin & Newell above."
Discussion
The cross-appeal
Submissions
Discussion
Conclusion
Lord Justice Dingemans: