Successful Article 3 Extradition Challenge by Janes Solicitors – Turkey v OI

Tuesday, 13 June 2017 | Janes Solicitors

Robert Berg and Kim Nihill with Counsel, Mark Summers QC. Westminster Magistrates Court, 30th May 2017.

The Government of Turkey requested the extradition of our client in relation to a series of convictions in his absence for Fraud offences.

Under the Extradition Act 2003 (EA 2003) Turkey is a designated category 2 territory. Part 2 of the 2003 act applies to territories with whom the UK has international extradition arrangements, other than those countries included in part 1, which implements the European Arrest Warrant (EAW) framework decision.

Our client is Kurdish and homosexual. These characteristics make him a textbook example of a target for discriminatory treatment within the criminal justice system, and serious violence in custody, in Turkey.

We sought to challenge our client’s extradition on a number of grounds under the Extradition Act 2003 (EA 2003). These included Sufficiency (s.78 EA 2003), Extraneous considerations (s.81) and Delay (s.82).

However, it was immediately clear to us that we would need to mount a strong argument under s.87 (EA 2003) which imposes a duty on the Judge to ensure that the extradition is compatible with the requested persons Human Rights. Our client had provided us with a horrendous account of torture and sexual abuse that he had previously been subjected to within prisons in Turkey. Armed with this information, we instructed a number of leading expert to gather as much evidence as possible to corroborate his account.

We instructed Professor Rodney Morgan, who is one of the leading prison condition experts in the Country, to prepare a report setting out the current conditions of Turkish prisons, specifically addressing the conditions that our client would likely be kept in, taking into account his characteristics. As a matter of coincidence, Professor Morgan had, very recently returned from Turkey having been instructed to inspect a prison there on behalf of another requested person with very similar characteristics to our client (Rosslee Charles v Turkey [2017] EWHC April 5). Professor Morgan relied upon the information he had obtained during this inspection and was therefore able provide a fully comprehensive description of the current prison conditions our client would likely be met with if he was to be extradited.

In addition to Professor Morgan, we also commissioned a report from Saniye Karakas who is a Turkish Human Rights Lawyer. Ms Karakas provided expert evidence on the treatment of LGBT prisoners and torture and ill treatment generally, within the prison estate in Turkey and the plight facing prisoners of Kurdish ethnicity and the deterioration of conditions since the failed military coup in 2016. Both Professor Morgan and Ms Karakas also addressed the inadequate monitoring of the prison system.

Further to these expert reports, we instructed Dr Juliet Cohen, a forensic physician specialising in examination of victims of torture, to carry out a medical examination of our client in order to assess whether or not there was any evidence to confirm that our client had been the victim of torture, as per his account.

On the day of the extradition hearing, following an unsuccessful application by the prosecution for an adjournment, the prosecution informed us that they were not in a position to challenge our expert evidence. In addition to this, the prosecution also confirmed that they would not seek to appeal in the event the Court ruled that or client’s extradition should be discharged on the basis that his article 3 rights would be violated. After careful consideration, we proceeded to address the Court on this point alone.

The Judge accepted our client’s evidence of the treatment suffered by him and stated that the expert evidence confirmed his credibility. The Judge found that the extradition of our client would not be compatible with his article 3 rights and that there was a real risk that, because of his ethnicity, his sexuality, his past treatment, the state of the Turkish regime, our client would be subject to inhuman or degrading treatment if returned to Turkey. Our client was then discharged from proceedings and awarded costs from central funds.

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