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||Neutral Citation Number:  EWHC 660 (Admin)
||Case No: CO/9426/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT –
WESTMINSTER MAGISTRATES COURT – DISTRICT JUDGE PURDY
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE PITCHFORD
MR JUSTICE KENNETH PARKER
|| IZZET GUZELOGLU
||- and -
||GOVERNMENT OF REPUBLIC OF TURKEY
(Transcript of the Handed Down Judgment of
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Daniel Jones (instructed by Criminal Defence Solicitors) for the Claimant
Daniel Sternberg (instructed by CPS) for the Defendant
Hearing date: 14 March 2013
HTML VERSION OF JUDGMENT
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Lord Justice Pitchford :
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 2012. 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  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  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)
- 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 service may affect the weight which the court can afford to it. The significance of the words "evidence is available that was not available at the extradition hearing" was explained by Sir Anthony May, then President of the Queen's Bench Division, in The Szombathely City Court & Others v Fenyvesi  EWHC 231 (Admin). The Ladd v Marshall test does not apply with its full rigour to extradition proceedings in which the liberty of the subject or human rights issues may be at stake. The court will, however, require good reason to explain why evidence which, by the taking of reasonable steps, would have been available at the extradition hearing, was not adduced. The appellant gave evidence on 25 November 2011 before DJ Purdy when he adopted his witness statements of 7 September of 6 October 2011 and was cross-examined. On 24 January 2012 the appellant again gave evidence, this time about the fitting of his pacemaker (see paragraph 10 below) on 16 January 2012. I can see no basis on which this court should now admit the generality of the evidence contained in the appellant's recent witness statement of 21 December 2012 since it refers to historical matters fully considered by the judge. However, at paragraphs 24-27 of that statement the appellant explained the deficiencies of his representation at Westminster Magistrates Court before Mr Jones agreed to act for him in June 2012. In his witness statement of 24 January 2013 the appellant explained the process of repeated applications for legal aid. Upon those issues I would admit the evidence. In paragraph 28 of his statement of 21 December the appellant raised the issue of his mental health. I consider this evidence in the next and following paragraphs.
- On 17 October 2012 this court granted an adjournment to obtain medical and other expert evidence because it was concerned that the appellant had not been afforded a realistic opportunity to advance his case under sections 87 and 91 of the 2003 Act by relying upon the evidence of experts (see  EWHC 3238 (Admin)). The appellant has chosen not to adduce further evidence as to his physical health and for the first time raises as an issue the fragile state of his mental health. This was not foreshadowed in submissions to the court at the time when the adjournment was granted. Nevertheless, having regard to the importance of the issue raised by the psychiatric reports, I would propose to admit the evidence.
The appellant's physical and mental health
- There is, as Mr Daniel Jones accepted in argument, a significant overlap between the factual issues arising under sections 91 and 87. The appellant suffers from diabetes, high blood pressure and hypertrophic cardiomyopathy (that is, thickening of the heart muscle). On 16 January 2012 an Implantable Cardioverter-Defibrillator ("ICD") was fitted surgically. The ICD acts like a pacemaker. DJ Purdy was provided with a letter written by the appellant's treating consultant cardiologist, Dr Amanda Varnava, to the appellant's general practitioner on 6 February 2012. Dr Varnava wrote:
"There is no reason why he should be symptomatic. I have reassured him today that the minor symptoms he has following his ICD are not suspicious of any underlying infection or problem with his device … I have today strongly encouraged him to resume his work activities as a taxi-driver …"
The appellant was due for follow up in 6 months. We have been provided with no evidence as to the outcome of that or any later follow up. No further medical evidence has been served relevant to the appellant's physical condition. No evidence has been advanced that the treatment of the appellant's physical condition would be compromised were he to serve a sentence of imprisonment in Turkey. In particular there is no evidence before the court as to the need for monitoring of the appellant's pacemaker.
- At paragraph 28 of his statement of 21 December 2012 the appellant said:
"In addition I have found myself increasingly depressed as the case goes on. I think about suicide a great deal and often believe that I would be better off dead. If my extradition is ordered I will kill myself. I cannot go back to face the type of treatment I previously faced."
This is a new development. Dr Varnava referred the appellant for psychological assessment following the fitting of his ICD. A clinical psychologist Dr Stephen Gunning, having examined the appellant, expressed the view in a letter to the appellant's general practitioner dated 29 March 2012, that the appellant should be reviewed by a psychiatric team because he was suffering symptoms of depression and ideas of suicide. Dr Gunning reported that the appellant's feelings of anxiety and hopelessness were caused by his discovery that he suffered the same heart condition which had recently caused his brother's sudden death. He had experienced similar thoughts of suicide and suffered similar depression following the breakdown of his marriage. Treatment had alleviated his condition. The appellant did not report to Dr Gunning that his mental condition had anything to do with the ongoing extradition proceedings.
- Dr Bose, consultant psychiatrist at University Hospital, Lewisham, saw the appellant on 17 November 2012. Dr Bose diagnosed depression with psychotic features and possibly symptoms of PTSD. Dr Bose recommended anti-depressant medication but there is no evidence that the appellant is taking any medicine for his depression. The appellant told Dr Bose that he would commit suicide if extradited. Dr Bose did not express a personal opinion as to the likelihood of an attempt by the appellant to harm himself. He merely reported the appellant's assertion. Mr Jones submitted that the absence of comment by Dr Bose implies that he endorsed the appellant's assertion. If that is so I cannot accept the opinion to be inferred because it is not founded upon any analysis of the appellant's clinical history. However, Dr Gareth Jenkins, a consultant psychiatrist of N & S Consultants Ltd, concurred with Dr Bose's diagnosis and expressed the view that the appellant would present a very high risk of suicide if he were to be extradited. Dr Jenkins' reasoning was based upon assumptions drawn from the appellant's own account of his early experiences in Turkey. The risk of suicide would be very high "because [by reason of] the evidence presented in the trial bundle [it] seems to me that there is still ongoing evidence that he may very well be unfairly treated and almost certainly not receive the treatment he warrants to keep himself alive, especially his critical cardiac status". Dr Jenkins professes no expert knowledge of the appellant's physical condition which would enable him to express that opinion. As Mr Sternberg observed, correctly in my view, the focus of Dr Jenkins' attention was more on the contents of the trial bundle than on a psychiatric assessment of the patient. He appears not to have been provided with the findings of the District Judge.
- I am afraid that I am not persuaded that these expert reports establish a risk of suicide of any particular magnitude. I have already noted the letter written by Dr Gunning to the appellant's general practitioner. That letter was included among the documents provided to Dr Bose. It was not one of the documents listed by Dr Jenkins but Dr Bose's report was provided to Dr Jenkins who does not himself appear to have requested a copy of Dr Gunning's letter. Dr Bose accurately summarised the contents of Dr Gunning's letter but neither he nor Dr Jenkins engaged in any discussion with the appellant on the subject of his late attribution of symptoms to the extradition proceedings. Neither of the psychiatrists sought to probe the origins and depths of the appellant's suicidal ideas. The appellant claimed to have been suffering from depression and suicidal ideas since 2001. He had previously responded satisfactorily to treatment and had never made an attempt on his own life or otherwise self-harmed. There is no exploration in the reports of these features of the appellant's history. The psychiatrists seem to have adopted an uncritical acceptance of the appellant's assertions both as to his state of mind and his intentions. In his conclusion Dr Jenkins expressed concurrence "with the points raised in the grounds of objection to extradition of the subject that such extradition would be a violation of the Human Rights Act 1998 in terms of right to life, prohibition of torture, right to liberty and security, right to a fair trial, freedom of thought, conscious and religion, freedom of expression, and free of discrimination". It is difficult to reconcile Dr Jenkins' concurrence with the declaration of impartiality which he appended in his following paragraph 10.
The Court's Approach
- In Turner v Government of the USA  EWHC 2426 (Admin), Aikens LJ, sitting with Globe J, extracted from previous decisions of the court a number of propositions which governed the court's approach to the section 91 question whether it would be unjust or oppressive to extradite a person who presented a significant risk of suicide. Those propositions were approved and adopted by the President of the Queen's Bench Division, Sir John Thomas, sitting with Burnett J, in Wolkowicz and Biskup v Polish Judicial Authority; Rizleriene v Prosecutor General's Office, Lithuania  EWHC 102 (Admin) and summarised as follows:
"(1) The court has to form an overall judgment on the facts of the particular case.
(2) A high threshold has to be reached in order to satisfy the court that a requested person's physical or mental condition is such that it would be unjust or oppressive to extradite him.
(3) The court must assess the mental condition of the person threatened with extradition and determine if it is linked to a risk of a suicide attempt if the extradition order were to be made. There has to be a "substantial risk that [the appellant] will commit suicide." The question is whether on the evidence the risk of the appellant succeeding in committing suicide, whatever steps are taken, is sufficiently great to result in a finding of oppression.
(4) The mental condition of the person must be such that it removed his capacity to resist the impulse to commit suicide, otherwise it will not be his mental condition but his own voluntary act which puts him at risk of dying and if that is the case there is no oppression in ordering extradition.
(5) On the evidence, is the risk that the person will succeed in committing suicide, whatever steps are taken, sufficiently great to result in a finding of oppression?
(6) Are there appropriate arrangements in place in the prison system of the country to which extradition is sought so that those authorities can cope properly with the person's mental condition and the risk of suicide?
(7) There is a public interest in giving effect to treaty obligations and this is an important factor to have in mind."
- Mr Jones does not suggest that there are not in place adequate preventative measures before the appellant would, if extradited, arrive in Turkey. The appellant's case is that Turkey does not have appropriate arrangements to cope with the very high risk of suicide presented by the appellant. At paragraph 10 of his judgment Sir John Thomas drew attention to the importance of preventative measures available in the requesting state. He said:
"10... (iii) When the requested person is received by the requesting state in the custodial institution in which he is to be held, it will ordinarily be presumed that the receiving state within the European Union will discharge its responsibilities to prevent the requested person committing suicide, in the absence of strong evidence to the contrary: see the authorities set out at paragraphs 3 – 7 of Krolick and others v Several Judicial Authorities of Poland  EWHC 2357 (Admin) and paragraphs 10 – 11 of Rot v District Court of Lublin, Poland  EWHC 1820 (Admin). In the absence of evidence to the necessary standard that calls into question the ability of the receiving state to discharge its responsibilities or a specific matter that gives cause for concern, it should not be necessary to require any assurances from requesting states within the European Union. It will therefore ordinarily be sufficient to rely on the presumption."
Prison Conditions in Turkey
- I shall next consider the reports of Ms Saniye Karakas who gives an address in London. Ms Karakas is a graduate of Dicle University in Turkey. She worked at the Kurdish Human Rights project as a legal associate between September 2008 and December 2011. Formerly she practised as a human rights lawyer in Turkey in which she appeared for claimants. Ms Karakas informs the court that this is her fourth report in asylum and extradition cases. She completed her LLM in Human Rights at Birkbeck College and is currently studying for a PhD. Ms Karakas's report is founded principally upon internet research for relevant papers on conditions in Turkish prisons. She found that a staff working document prepared for the Commission of the European Community dated 10 October 2012 stated that:
"Many sick and terminally ill convicts lack proper medical treatment. Complaints that conditions in F type high security prisons cause physiological and psychological damage have been reported. Overall prison overcrowding remains problematic with a serious impact on sanitation and other physical conditions. Reform of the complaints system in prisons is needed."
Ms Karakas identifies anecdotal evidence of incorrect administration of medicines. In June 2009 the Council of Europe's Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment expressed concern at the shortage of medical staff in prisons. Ms Karakas criticises the fact that the Institute of Forensic Medicine founded in 2003 by the Ministry of Justice provides most of the medical services in prisons. The Institute is not, Ms Karakas argues, independent of the state. The implication is that the Institute is biased against the interests of prisoners. Ms Karakas does not, however, consider that the appellant's ethnic origin would have any recognisable impact on his access to necessary treatment.
- In 2010 there were some 120,840 prisoners in Turkish prisons (Representations made by the requesting state, see paragraph 18 below). In that year the Human Rights Association (Turkey) which was monitoring conditions, listed 34 sample complaints of inadequate medical treatment.
- Requests for further information have been answered by the Directorate General for International Law and Foreign Affairs at the Ministry of Justice in Turkey on 2 November 2011, 3 January 2013, and 25 February 2013. Mr Sternberg for the respondent submits that they are comprehensive and authoritative. The Court is informed that prisons are provided with infirmaries in the main prison centres and local clinics in areas where there is more than one prison. When appropriate, medicine is delivered locally; where more advanced treatment is required prisoners are transferred to hospital. Emergency services are called if necessary. Prisoners have the same rights to medical treatment as the ordinary citizen. Prison administrators do not control health care; that is the responsibility of the Ministry of Health. It is not accepted that Turkish prisons are currently overcrowded; new prisons are being commissioned. Ongoing efforts are being made to improve conditions. All prison personnel are now trained in human rights practice to international standards. There are means by which prisoners can make complaints about their treatment. Prisoners receiving treatment for depression are supported and receive psychiatric treatment within the prison or at hospital. Prisoners are interviewed on admission to assess health risks. Those at risk of suicide are followed closely. Anti-depressant and anti-psychotic medications have been available since the signing of a Protocol on 1 January 2009. Medical records provided in the UK would accompany the prisoner to Turkey and be kept on file at the prison. On arrival the prisoner would be medically examined and a record kept. There are several prison facilities for those with psychiatric problems short of insanity where specialist psychiatrists are available. Typically some 50 prisoners a day are treated at prison infirmaries. Prison officers now receive regular training in suicide watch. There is currently a programme in Turkey for increasing mental health awareness in prisons and the training of staff to that end. Suicide rates in Turkish prisons are lower than in comparable European countries such as Germany, France and Italy. Figures are provided. Complaints relating to health are the responsibility of the General Directorate subject to audits by the Chief Prosecutor's Office, Provincial and District Human Rights Boards, Prison Observation Boards and others.
- Mr Jones pointed out on that in the United States Department of State Country Report on Human Rights Practices for 2011 concern was expressed that although the Government had made an improvement by attaching prison doctors to the Ministry of Health, the Civil Society in the Penal Punishment System Association (CISST) in Turkey reported that 240 prisoners, including remand prisoners, were denied access to proper health services, particularly those suffering from paralysis or cancer. The United Nations Human Rights Committee (13 November 2012), when making observations on Turkey's self-report, expressed concern at continuing overcrowding in prisons and the lack of timely access to adequate health services for some prisoners.
- On 11 March 2013, Ms Karakas conducted a telephone interview with Necla Sengul a member of the Human Rights Association (Turkey) Executive Council, and Deputy Secretary General responsible for Prisons. Ms Karakas was informed that there was normally a psychologist and social worker in each provincial prison. In an alarmingly sweeping statement Ms Sengul claimed that psychologists were used as a means of interrogating prisoners in an attempt to discover whether they were members of any organisation, whether they wished to share accommodation with prisoners of similar views, whether they were leaders and what books they read. Our attention has not been drawn to any other source for this assertion. Ms Karakas was told that prisoners were not normally seen on arrival. However, it was conceded that doctors visit prisons once or twice a week. There were 6 large state psychiatric facilities in Turkey within which there were facilities for prisoners. It was claimed that conditions in those hospitals are poor. Ms Karakas is critical of the auditing procedures for prisons for which there is some support in the European Commission Turkey 2012 progress report dated 10 October 2012 which said that monitoring does not meet UN standards. However, in the EC report, criticisms of conditions the subject of complaint relate to inconsistency in such areas as restrictions on newspapers, magazines, and books, visits and the use of the Kurdish language, but not specifically access to medical facilities.
- The appellant is by birth an Alevi-Kurd. His family was associated with the Socialist Party known as Isci Partisi or "IP". It was a national party not formed or run in ethnic interests or on ethnic lines. The appellant's evidence is that when he was a child his family was targeted by soldiers who visited his village near Karamanmaras City, detained and tortured. The appellant said that he was himself detained for matter of days. However, at the age of 22 in March 1987 he enrolled for military service and completed his service. He arrived in the United Kingdom with his wife in 1989 after working for some time as a farmer. He has since become a British citizen and has returned to Turkey on 3 occasions in 1998, 2000 and 2001. There is no satisfactory evidence that the appellant is or has ever been politically active. There is no evidence that he is of any interest to the Turkish state other than as a convicted person sought by an arrest warrant. Ms Karakas identifies abuses against those who are perceived to be opponents of the status quo in Turkey. The appellant does not fall into that category. Ms Karakas does not support the assertion that the appellant would be at particular risk from other prisoners. In 2010 the Human Rights Association (Turkey) listed 24 sample complaints from prisoners about ill-treatment in prison. Their circumstances are not revealed.
- I am not persuaded that Ms Karakas' second supplemental report provides a robust response to representations made by the Republic of Turkey. She relies upon the hearsay account of a single individual who made a statement about the integrity of prison psychologists within the Turkish prison system of such sweeping generality, unsupported by any other material, that I am unable to place weight upon it. Having regard to the acknowledgement made by the US State Department report (paragraph 19 above) she appears to be mistaken in attributing control and oblique motives to the Institute of Forensic Medicine.
- Mr Jones placed no reliance upon the report of Professor William Bowring in his oral submissions to the court. Professor Bowring submitted his report dated 11 May 2012 to Westminster Magistrates Court in the case of Turkey v Konuksever. The report is plainly authoritative. It is not, however, directed to prison conditions generally but to the specific risk that the requested person in that case would be targeted by state agents or other prisoners for his actual or perceived support for PKK. Professor Bowring's report provides no assistance to the appellant in the present appeal.
- The appellant relies upon an assertion that he will not have access to necessary drugs and monitoring for his heart complaint. The court has been provided with no evidence about any need for continuing monitoring of his condition, nor has it received any evidence as to the unavailability of any drugs which the appellant may require while serving his sentence. The appellant relies only upon generalised and inconsistent criticism of the shortage of specialist doctors available to treat prisoners. On the other hand, the court has received specific assurances that medicines are available in Turkey to those who require them and that the system of medical care is improving. I am not persuaded that on the grounds of his physical health it would be unjust or oppressive to extradite the appellant to Turkey or that there is any real risk of Article 3 ill treatment. Mr Jones concedes that Turkey is a signatory to the ECHR and for that reason cogent evidence will be required to displace the assumption that it will treat its prisoners accordingly. I am not satisfied that cogent evidence has been produced, even at this late stage, to displace the assumption.
- I accept that the appellant has been diagnosed as suffering from depression and that suicidal ideas occur to him in consequence of his personal situation. In my judgment, however, for the reasons I have given at paragraphs 12 and 13 above, there is no reliable evidence that the appellant presents a high risk of suicide. Further, the appellant has not established that his mental condition is such that he does not exercise free-will to resist thoughts of suicide. The evidence is to the contrary effect. Given his personal circumstances I do not accept the bare assertion that his return to Turkey will cause him to relive previous experiences. He left Turkey as long ago as 1989. The District Judge did not accept that there was within the appellant's past any reason to think that he would be subjected to ill-treatment or neglect. In the present case the respondent has accepted that requests for specific information from the requesting state was necessary (see paragraph 15 above). While I accept that evidence of the availability of specialist medical personnel in prisons remains in some respects contradictory, and that complaints persist, there is, in my judgment, sufficient evidence to demonstrate that in 2013 it would not be oppressive or unjust to extradite the appellant. The requesting state is not required to demonstrate that it would prevent the suicide of an inmate who presents a risk, only that reasonable preventative measures are in place having regard to the magnitude of the risk. Conditions are clearly improving in Turkey's prison service and in its response the respondent has paid particular attention to the risk of suicide, suicide watch and the provision of appropriate anti-depressant medicines if required. There is, in my judgment, sufficient evidence from the Republic of Turkey, to demonstrate that the appellant's health will be considered on arrival and that care will be taken to ensure that the suicide risk is known and appropriate precautions taken.
- For these reasons it is my view that the appellant has failed to make good his assertion that had the fresh evidence been available to the District Judge he should properly have resolved the section 91 and section 87 issues in favour of the appellant. For this reason I consider that the appeal should be dismissed.
Mr Justice Kenneth Parker
- I agree
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