England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		Monday, 18th June 2001

1. LORD JUSTICE ROSE: There is before the court an application for habeas corpus, following committal of the applicant at Bow Street Magistrates' Court, by District Judge Workman, on 3rd August 2000, pursuant to section 9(8) of the Extradition Act 1989. The Government of Turkey seeks the applicant's extradition in relation to offences said to have been committed in 1986.
2. The formal extradition request contains three separate requests. The first two of 'accusation' and the third of 'conviction'. The conviction request relates to offences for which the applicant was sentenced, following conviction, to nine years and two months' imprisonment by the State Security Court of Izmir in 1989. That was a conviction in the applicant's absence on 28th March 1989. That conviction led, as will shortly appear, to an extradition request to Belgium, which failed in 1995 or 1996.
3. The second of the accusation requests is no longer pursued. That bears the reference 1996/488. It relates to an alleged conspiracy between January and May 1986 arising from the transportation on a ship called Norsun. The first request, reference 1992/284, is the one which is presently pursued before the court. That also involves an alleged conspiracy to defraud the Turkish government by falsifying customs documentation in relation to goods to be transported on a ship called Siricus. Those offences were allegedly committed between January 1986 and July 1986.
4. The allegations in relation to that first request concern some US$60m worth of goods. The allegation is that the applicant, through his company Atlas, created fictitious exports by signing false customs invoices, which either inflated the value of the goods to be exported, or claimed that they were being exported to companies which did not exist. The consequence was that large tax rebates could be reclaimed by Atlas from the Turkish government.
5. The chronology of events in this case is of prime importance, and it is necessary to highlight a number of features of it. As I have said, the offences were alleged to have been committed in early 1986. In that year the applicant was released on bail in relation to the offences in Turkey. It appears that he probably absconded in a private yacht, travelling, initially to Greece, in the autumn of 1987. It appears that in November 1987 he came to the United Kingdom where initially he was granted permission to stay as a student, and was eventually granted unconditional leave to remain.
6. In 1988 an arrest warrant was issued in relation to him. After he had, in his absence, been convicted in March 1989 and sentenced, he, in August 1989, married an English woman from whom, after some two and a half years or so, he separated. In about 1990, on application to the Turkish embassy in London, he obtained a new Turkish passport. On 14th May 1991, by virtue of the European Convention on Extradition Order 1990 (SI 1507), extradition became possible from the United Kingdom to Turkey.
7. On 4th August 1992, a formal request for his extradition by the Turkish government was first made. On 4th November 1992 the papers in relation to the extradition were sent to the Crown Prosecution Service for consideration as to their sufficiency. On 6th January 1993, the CPS advised about certain insufficient aspects of the documentation. There was further correspondence between the CPS and the Turkish authorities. After a lapse of many months, on 8th August 1993, amended papers were received from the Turkish authorities.
8. The CPS advised that those documents were still insufficient and set out a detailed advice to that effect in a letter dated 13th December 1993. It is also to be noted that, during 1993, the applicant applied for a British passport. That led, among other things, to an inquiry by the Inland Revenue as to his financial status. On 28th February 1994, the Inland Revenue were asked by the Home Office to investigate the applicant's tax affairs. Thereafter there was communication between the Inland Revenue and the Turkish authorities in relation to the applicant's financial status. In the meantime, on 30th September 1994, a diplomatic note, via the Foreign and Commonwealth office, was forwarded to the Crown Prosecution Service seeking, on 4th October 1994, their advice on the presently amended papers in relation to the applicant's extradition.
9. In 1994 the applicant, who was temporarily away from the United Kingdom visiting Belgium, was arrested there and held in custody for a period of time. The Turkish government sought his extradition. That application was unsuccessful and the applicant returned to the United Kingdom at the beginning of 1995.
10. In April 1995, a diplomatic note was received from the Turkish authorities requesting the provisional arrest of the applicant. Pursuant to that, further papers were forwarded from Turkey to the CPS on 9th May 1995. Thereafter there was further communication between this country and Turkey as to the adequacy of the documentation and the precise circumstances relied on in relation to the extradition of the applicant. There was, indeed, confusion at one point as to whether the Turkish authorities wanted to withdraw the application for extradition, and it was necessary for a number of chasing communications to be sent to the Turkish authorities in order to clarify the position.
11. By August 1996 it appeared that the original documentation could not be traced. So, in January 1997, a new set of supporting documentation was supplied by the Turkish embassy and forwarded to the CPS. Still further amended papers were received from the Turkish authorities in June 1997. On the 19th of that month the CPS advised that that documentation was still defective.
12. As I have said, inquiries by the Inland Revenue of the Turkish authorities were pursued during 1995 and 1996. It is clear that although no communication appears to have been made with the Turkish criminal authorities at that time, there was no attempt by the applicant to conceal his whereabouts. He was living openly in this country at an address known to the Inland Revenue.
13. There is then a gap in the chronology, until, on 5th November 1999, a letter was received from the Bow Street Magistrates' Court informing the extradition section of the Home Office that a warrant had been issued for the applicant's arrest. Pursuant to that, on 21st December 1999, the applicant was arrested on a provisional warrant. In January 2000 an extradition request (it seems the fifth extradition request in total from the Turkish government) was received. On 17th February 2000 the Secretary of State gave authority to proceed in relation to that request.
14. In March 2000 the applicant was released on bail. On various dates between May and July 2000 committal proceedings took place. As I indicated at the beginning of this judgment, on 3rd August the applicant was committed in respect not only of the charges to which the present request relates, but also on charges to which the second request, 1996/488, relate. The present application for habeas corpus was lodged on 9th August last year.
15. By a document dated 12th June of this year, emanating from the Turkish embassy in this country, it is indicated that the case against the applicant, 1996/488, has been dismissed by the courts in Turkey, due to the expiry of the relevant limitation period. So far as the case 1992/284 is concerned, the document of 12th June 2001 indicates that that is still on-going and a trial will be held on 19th July, that is to say in a months's time. The document indicates that the prescribed period for criminal cases is 15 years and, therefore, it is possible that this case too may be dismissed, as the time limit for the offence committed on 21st June 1986 expires on 21st June 2001. However, the embassy note makes the point that it is for the court to decide whether such a dismissal will occur.
16. Miss Helen Malcolm, on behalf of the respondents, the Prisoner Governor and the Government of Turkey, draws attention to the theoretical possibility, arising from Articles 102 and 104 of the Turkish Criminal Code, that the limitation period might, in relation to the present accusation, be 22-and-a-half years rather than 15 years, if it were to be the case that the Turkish Criminal Court exercised the power which it has to increase the permissible sentence, having regard to the amount of money involved, to such a level that the 15 year period would not apply. That is to say, there is provision in the Turkish Criminal Code for the 15 year period to be increased by 50 per cent to 22-and-a-half years if the punishment which is imposed were raised to a sufficient extent.
17. As matters stand at present, however, it may well be that on 19th July the Turkish court may dismiss the present charges because of expiry of the limitation period. If of course that were to happen, as Miss Malcolm points out, that would provide a bar to the Secretary of State signing an extradition order. So there is, at any rate, the possibility that, even if this court were today to dismiss this application, the applicant would not necessarily be returned to Turkey.
18. In the light of the events to which I have referred, Mr Knowles' submission, on behalf of the applicant, is geared to the provisions of section 11(3) of the Extradition Act 1989, which contain the well-known mandatory provision that the court shall order discharge if it appears that by reason of the passage of time since the offences were committed it would be unjust or oppressive to return the applicant to the country seeking his extradition. It is clear beyond peradventure, by reason in particular of the speech of Lord Diplock in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, 782, that "unjust" in the statute is directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, and "oppressive" is directed to hardship to the accused resulting from changes in his circumstances during the period to be taken into consideration, although there may be some overlapping between the two concepts.
19. Mr Knowles submits that the return of this applicant would be unjust and oppressive for a number of reasons. First of all, no case is known to counsel, or to the court, where an extradition has been ordered after a lapse of so long a period as 15 years. Secondly, the Turkish authorities have known the whereabouts of the applicant since 1992 when they made the first of their requests for extradition. Thirdly, the failure of the proceedings in Belgium, and the applicant's subsequent release from custody as a consequence of the failure of those proceedings, started the running of a period of some 5 or 6 years during which the applicant had no reason to suspect that any further request for extradition would be made against him. That is in the context of the Inland Revenue investigations, by reason of which there was material available to the Turkish authorities clearly demonstrating the presence in this country of the applicant and his whereabouts.
20. Mr Knowles submits that, after so great a length of time, the fairness of any trial at this stage must be gravely impaired by reason not merely of the dimming of recollections, but of the serious difficulty of tracing relevant witnesses and documents, so far as the allegations made against the applicant are concerned. He denies that he is guilty of the offences charged against him (though it is to be noted that the word 'implication' in those events was used by solicitors at one time acting on his behalf in correspondence.)
21. The blame in relation to this delay, notwithstanding the initial absconding of the applicant, Mr Knowles submits, lies heavily upon the Turkish authorities, particularly bearing in mind that the scheme for extradition between signatories to the European Convention is a simple one not requiring the lodging of evidence. There is no sensible reason why the Turkish government have been guilty of this delay. Furthermore, the limitation aspect is, Mr Knowles submits, a reason of itself why extradition should not be ordered. In support of that proposition he relied upon a judgment of Mance J, in a constitution of the Divisional Court in which Kennedy LJ presided, in the case of Re Neumann, Divisional Court transcript of 14th January 1997. Miss Malcolm in her submissions points out that that authority does not support a general proposition that extradition should not be ordered merely because of the imminence of the expiry of the relevant limitation period.
22. So far as the applicant absconding from Turkey is concerned, Mr Knowles accepts that blame for delay during the period 1986 to 1992 could not possibly be laid at the door of the Government of Turkey. But he makes the point that the applicant says that his reason for absconding was that he was advised that he would not get a fair trial by a military court in Turkey. The court which convicted him did have, as a member, a colonel. It is apparent that State Security Courts in Turkey may have military members. The applicant's trial by a State Security Court in Turkey was because of the financial loss to the Revenue said to have accrued from his conduct.
23. As to the State Security Courts in Turkey, Mr Knowles refers to a number of authorities of the European Court of Human Rights, in particular Mehdi Zanav v Turkey (1999) 27 EHRR 667, which was a decision relating to the Izmir State Security Court, which convicted the applicant in his absence. The conclusion of the European Court of Human Rights is that a fair trial in accordance with Article 6 is not possible under the State Security Courts as they were constituted at the time of the European Court's decision.
24. Miss Malcolm in making, if I may say so, such bricks as she was able to make with limited quantities of straw, submitted that no sufficient injustice or oppression had accrued to the applicant, despite the possibly culpable, and possibly inexcusably culpable, delay on the part of the Turkish authorities. She points out that the burden is upon the applicant, as it is, to establish oppression and/or injustice by reason of the passage of time. She points out, so far as oppression is concerned, that the applicant has no wife, in the sense that he and his wife are separated; he has no children; he has no job in this country, and so the level of oppression which affects him is considerably less than the level of oppression in some other cases.
25. So far as injustice is concerned, Miss Malcolm points out that the applicant has known since 1986 that his conduct was being called into question in criminal terms, and he, as the person of authority in the Atlas company, was peculiarly well placed to preserve any documents which might be material in establishing his defence and to identify witnesses who might assist his defence. Furthermore, as is apparent from the material before the court, the applicant's father is not without means and has had the means available to procure the obtaining of statements from relevant witness during the 15 years which have elapsed since the applicant's alleged conduct.
26. This is not a case, Miss Malcolm points out, such as one finds in the authorities, where any permission to leave Turkey was granted to the applicant, nor was he ignorant that there was any investigation being carried on in relation to his behaviour. So, Miss Malcolm submits, it has not been established that there is in the present case such oppression or injustice as requires the applicant's discharge.
27. For my part, I am unable to accept that submission. The history of this matter, as I have set it out, in my judgment demonstrates both oppression and injustice if the applicant were to be returned to Turkey. The length of delay in this case is not only enormous in itself, in that 15 years or thereabouts has elapsed since the criminal conduct is said to have taken place, but there have been many, many years during which the Turkish government has made no significant attempt to obtain the applicant's extradition.
28. Having regard to the unsuccessful attempt which was made to extradite him from Belgium, (and it may be that also an unsuccessful attempt was made to extradite him from Greece in 1998) the whole history of this matter is such as to demonstrate oppression resulting from delay in his case.
29. Equally, notwithstanding the validity of Miss Malcolm's submissions as to the possible availability of opportunity to the applicant to retain relevant documentation and to identify witnesses, this 15-year time lapse seems to me to be one which demonstrates that it would be unjust if this applicant were to be returned to face a trial, even leaving aside the limitation aspect of the matter to which I have already sufficiently referred.
30. For my part, therefore, I would grant the application and order the applicant's discharge.

MR JUSTICE SILBER: I agree.

MR KNOWLES: My Lord, I have two applications. One is for a defendant's costs order, although the applicant is legally aided before this court he was privately funded before the magistrates' court. My Lord can I say we did make representations to the Home Office asking that this authority not be issued, given the length of the delay and the authority was----

LORD JUSTICE ROSE: Are you seeking a defendant's costs order in relation to proceedings before the magistrate?

MR KNOWLES: My Lord, yes. If my Lords make a defence costs order that does cover any lower proceedings, unless my Lords say otherwise. I am simply explaining why I am seeking a defendant's costs order and legal aid taxation.

LORD JUSTICE ROSE: Can you resist that, Miss Malcolm?

MISS MALCOLM: No.

LORD JUSTICE ROSE: Then we shall make a defendant's costs order. Thank you. Sorry, was there something else, Mr Knowles?

MR KNOWLES: And legal aid taxation, my Lord.

LORD JUSTICE ROSE: Yes. We have to call it legal aid assessment or something nowadays but, whatever the right terminology, you may have it.

MISS MALCOLM: My Lords, may I make a brief comment? Simply to say that my learned friend and I both agree that both the accusations cases were mentioned before the Belgium court, it does not help us because neither of us know why the accusations cases were----

LORD JUSTICE ROSE: Yes.

MISS MALCOLM: —the accusation cases are specified in judgment--

LORD JUSTICE ROSE: Yes.

MISS MALCOLM: —as well as the conviction case. It was only on appeal in relation to his custody by the applicant, in relation to the conviction case, that was the only one they ruled upon.

LORD JUSTICE ROSE: Thank you very much. The judgment will be suitably amended in due course to reflect that.