QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR. JUSTICE MACKAY
| KENAN OZEN
|- and -
|REPUBLIC OF GERMANY
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Adina Ezekiel (instructed by Treasury Solicitor) for the Respondent
Crown Copyright ©
Mr Justice Goldring:
The Applicant's background
The extradition proceedings
"A person shall not be returned under Part III of this Act…if it appears to an appropriate authority…
(d) that he might if returned, be…detained or restricted in his personal liberty by reason of…nationality…"
The German law
"A foreigner shall be expelled from [Germany] if he has finally been convicted and sentenced to a term of imprisonment or youth custody of at least 3 years for one or several intentionally committed offences…"
"A foreigner may not be deported to a country in which his life or freedom are threatened on account of his race, religion, nationality, because he belongs to a certain social group…
A foreigner who has been expelled from [Germany] does not have to be deported to the state of origin which is obliged to readmit him under international law. He can be deported to a third state which is prepared to accept him if there are no obstacles to a deportation where this state is concerned."
"1. Everyone has the right to respect for his private and family life…
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and necessary in a democratic society in the interests of…for the prevention of disorder or crime…"
"No-one shall be subjected to torture or to inhuman or degrading treatment or punishment."
(a) That a deportation order will be made when it should not be: that the German Administrative Courts will disregard the clear provisions of German law to the contrary. This proposition is fundamental to the Applicant's case.
(b) That the decision will force the Applicant to return to Turkey without offering him the alternative of leaving Germany for another country.
(c) That if so deported he will be subjected to mistreatment in breach of his Article 3 rights because of his Kurdish ethnicity.
38. We cannot accept that there is a real risk of these events happening. Indeed, as far as (a) is concerned, our judgment is that it is unlikely in the highest degree, having regard to all that we have heard and read of the German authorities' approach to this question. That alone is fatal to this application.
39. It is now accepted that there is no risk of mistreatment of the Applicant when he is in the hands of the German state. So far as the argument based on Article 3 and Fatih Ozen's case is concerned, we are prepared for the purposes of this judgment to accept as genuine the fears he expresses, untested though his account is. However, the stronger the case for arguing the risk of mistreatment of this sort, the higher the likelihood of it being recognised by the German authorites when considering the Applicant's position in relation to deportation.
40. For these reasons this application fails.
MR JUSTICE GOLDRING: As you will both appreciate, I am sitting alone today. Mackay J is not here. However, this is the judgment of both of us. I, on behalf of both of us, formally hand it down in the terms which you have.
MISS BROWN: I am grateful, my Lord. Could I have a copy? Thank you.
MS CRONIA: My Lord, I think there is only one matter, as I see it. I understand that the applicant was legally aided and I ask for the usual order with respect to his costs.
MR JUSTICE GOLDRING: What would you like me to do?
MS CRONIA: My Lord, I understand the usual order in these matters is that there be no enforcement with leave. So to that extent --
MR JUSTICE GOLDRING: It does not seem to me that really it takes anyone anywhere for me to make any order.
MS CRONIA: My Lord, I do not press the point. I simply say for completeness as much as anything else.
MR JUSTICE GOLDRING: Miss Brown, do you seek any order so far as costs are concerned?
MISS BROWN: My Lord, I am not in a position to know, I am afraid. I am here on behalf of somebody else and I do not have any instructions to that effect.
MS CRONIA: My Lord, can I say, I will not press it. In the circumstances of this case where it is a removal to Germany, it somewhat fanciful in any event.
MR JUSTICE GOLDRING: I will not make any order for costs. It is the state in either guise, is it not? I think Mackay J will agree with my observations.
Thank you both very much.