IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM AND IN THE MATTER OF THE EXTRADITION ACT 1989 GÜLAY ASLITURK v GOVERNMENT OF TURKEY [2002] EWHC 2326 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
[2002] EWHC 2326 (Admin)Case No Case No: CO/250/2002Venue Royal Courts of Justice, Strand, London, WC2A 2LL
Between
IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM AND IN THE MATTER OF THE EXTRADITION ACT 1989 GÜLAY ASLITURKApplicantGOVERNMENT OF TURKEYRespondent
Before
Lord Justice KennedyMr Justice McCombeNicholas Blake QC and Julian Knowles (instructed by Penningtons) for the applicantJames Lewis QC (instructed by CPS London) for the respondentHearing dates : 28 & 29 October 2002Date 8 November 2002
[1]Mr Justice McCOMBE: This is an application for a writ of "Habeas Corpus ad Subjiciendum" by Mrs Gülay Atig Aslitürk ("Mrs Asliturk") arising from an order of committal for extradition made by District Judge Wicks on 2 January 2002. The Applicant was arrested in December 1999 on a provisional warrant issued under section 8(1) of the Extradition Act 1989 ("the 1989 Act") at the request of the Government of Turkey ("the Government"). An extradition request was made in January 2000 and on 1 February 2000 the Secretary of State issued his authority to proceed, specifying offences of conspiracy to defraud, fraudulent trading and misfeasance in a public office. In September 2000 the Government supplied a statement of the English versions of the offences upon which Mrs Asliturk’s removal was to be sought. The charges comprised six counts of conspiracy to defraud (Charges 1-5 and 8), one charge of carrying on a business for a fraudulent purpose (Charge 6) and two charges of misfeasance in public office (Charges 7 and 9).[2]The Committal hearing took place over a number of days in 2001 and the learned District Judge delivered his written judgment on 21 December 2001, leading to the order of 2 January 2002, which I have mentioned. In respect of charges 7,8 and 9, on 21 March 2001, the learned District judge had already discharged Mrs Astliturk on the basis that she was not an "accused person" for the purpose of the 1989 Act and thus not liable to be extradited in respect of them. His order of 2 January 2002 committed Mrs Asliturk on Charges 1 to 6.[3]On the present application, Mrs Asliturk (represented by Mr Nicholas Blake Q.C and Mr Julian Knowles) submits: 1) that the accusations made against her are not made in good faith in the interests of justice and that she is, therefore, entitled to be discharged under section 11(3) (c ) of the 1989 Act. 2) that her removal is prohibited by reason of the "political opinions" grounds set out in section 6(1) ( c) and (d) of the 1989 Act.[4]The background to the present matter is as follows. Mrs Asliturk is a Turkish politician whose career in politics advanced successfully from a fairly young age. After adherence to two other political parties she joined the Motherland Party on the invitation of a prominent figure in that party, Mr Mesut Yilnaz. Shortly thereafter, in 1994 at the age of 30, she was elected as the mayor of the municipality of Sisli in the city of Istanbul.[5]In evidence before the learned District Judge, she set out both in written and oral form a substantial amount of material concerning the political background of the events with which the present application is concerned. That evidence was not challenged by any evidence advanced by the Government. Therefore, the Court has to take the background initially from Mrs Asliturk’s account. Her evidence is that, in her post as mayor, she achieved a substantial degree of popularity, but this led to her becoming a positive target for certain factions within her own party. In her private life, she was divorced in 1997 and this too attracted media attention and political opposition to her personally. At about the same time, she began to be subject of allegations of corruption. As a result of those allegations, which however she denied, she resigned as mayor of Sisli.[6]It is necessary at this stage to say a little more about the charges that form the subject of the committal order. In each case, Mrs Asliturk, contends that the accusations are not made in good faith in the interests of justice (section 11 of the 1989 Act) and that in each case the request for her removal is made for the purpose of prosecuting her on account of her political opinions and that she might be prejudiced at trial, punished, detained or restricted in her liberty because of those opinions (section 6 of the 1989 Act).[7]I turn now to the charges and the reasons why, it is submitted, that the extradition sought is flawed. In the following account, I have drawn upon the documentary evidence adduced before the learned District Judge as commented upon in the evidence of Mrs Asliturk and her Turkish lawyer Mr Yaziz Ali Dagli ("Mr Dagli"). Mr Dagli’s evidence was accepted in its entirety by the District Judge after he had been cross-examined upon it.[8]The start of the prosecution process was in fact in relation to charge 5, which formed the subject of the initial approach to the courts in this country. In respect of this charge, Mrs Asliturk is said to have agreed and procured the sale of 3,100 square metres of land belonging to the municipality of Sisli either to a company called SIPA or thereafter from SIPA to a third party at a substantial undervalue. It is alleged that on 17 October 1996 the Municipality Council resolved to sell the land to SIPA for approximately 11,322 billion Turkish lira (about £75-80,000 stirling at 1996 rates). Thereafter, on 26 October 1996 SIPA agreed to sell the same land to Mr Mustafa Duran for 13 billion Turkish lira. The allegation is that the land was in fact worth 160 billion Turkish lira. (See the extended statement of charges in Bundle 1, Tab 3 pp. 173-8)[9]All the charges which are the subject of the order of committal involve the SIPA company. So far as the evidence goes, it seems that this Company was established in 1991, before Mrs Asliturk’s term of office, as a commercial operating company under the control of the municipality with the incumbent mayor at all times acting as the president of the Board of Directors.[10]Mr Dagli’s evidence was that such companies, known as Economic Municipal Enterprises or Organisations, are a common feature of Turkish local government. He said that there are some twenty similar enterprises within the city of Istanbul. He recited the Turkish statutory provisions under which such enterprises are established. No evidence to the contrary was adduced by the Government. It appears from that evidence and from the documents before the Court that an original complaint concerning the transaction was made on 14 May 1997 by a Mr Dursun Calti, a political opponent of Mrs Asliturk. On 23 July 1997 the Public Prosecutor then responsible for dealing with the complaint decided that no criminal charges were called for in the circumstances. That decision became final under the Turkish procedural code on 6 August 1997.[11]On 15 October 1997 a Commission of the Sisli Municipality Council was set up by resolution of that Council to investigate the stewardship of Mrs Asliturk as Mayor. The Commission was politically constituted and appears to have consisted of members from various political parties, including Mrs Asliturk’s own party.[12]The Commission reported on 26 March 1998 and it appears that, on the same day, charges were preferred against Mrs Asliturk by a different prosecutor: see Bundle 3 Tab2 pp.38-40. The original communication from the Istanbul 6 th Criminal Court addressed to the competent judicial Authorities in England (said to have been dated 25 January 2000: Bundle 1: Tab 3 pp. 476-9) stated that the Municipal Commission report had given the true value of the land at 160 billion Turkish lira (p.478), based upon an assessment ,of the surveyors of the Istanbul Chamber of Commerce. The same document however refers to two surveyors said to have been appointed by the prosecutor who assessed the value of the land at between 31 and 45 billion lira in statements dated 27 March 1998.[13]Mr Blake for Mrs Asliturk pointed to certain features of this material which he submitted pointed to an absence of good faith in the preferment of this charge. First, he points out that the prosecution for this offence appears to have been launched on the very same day that the Sisli Municipal Commission reported to the Council, without the intervention of any supervisory legal enquiry into the facts. Secondly, the valuations relied upon in the Communication for the Court are substantially at variance one with the other. Thirdly, on the face of the known 1998 valuations, they appear to have been based solely upon an inspection of a plan and a general knowledge of the area. Fourthly, the evidence from Mrs Ashliturk’s side is that the true consideration paid by the ultimate purchaser was a total of 26.5 billion lira together with an agreement to perform other services to the value of 18 billion lira, giving a total consideration of 44.5 billion lira (a figure not dissimilar to the value that would be realised by applying the valuation of 10 – 15 billion lira per square metre adopted by the prosecution’s valuers). Fifthly, the evidence from Mr Dagli was that neither of the two valuers identified in the prosecution file could be traced through their respective addresses given in the papers. Sixthly, Mr Blake pointed out that, on the application of another person indicted in respect of the same matter, the court in Turkey had dismissed the charge on the basis that the Council Commission report was politically based and had been made without judicial authority, and moreover that the prosecution had collected no evidence about the accusations made. He referred to the Court order, a copy which is at Bundle 2: Tab 38 pp. 202–3. He submitted that the same objection could equally be made in respect of the accusation levelled against Mrs Asliturk but, nevertheless, her extradition is sought. Seventhly, Mr Blake submitted that the allegation, in all the charges (including this one), is that Mrs Asliturk derived personal benefit from the transactions. This she denies and has consistently contended that no evidence has ever been produced to demonstrate any such benefit. Mr Dagli, in his evidence , after examination of the prosecution case in Turkey, also stated that he could find no evidence of benefit to Mrs Asliturk in the prosecution papers. In the face of that evidence nothing has been produced by the government in answer. It is submitted on Mrs Asliturk’s behalf that, without some evidence of benefit to her through these transactions, no prosecution for conspiracy to defraud for personal gain can conceivably be brought in good faith in the interests of justice.[14]The substance of the remaining charges relate to cheques apparently drawn by SIPA, over the signatures of Mrs Asliturk and her deputy, a Mr Altan Demirel. These cheques are said to have fallen into the wrong hands and, again, allegations of personal benefit to Mrs Asliturk are made. Mrs Asliturk admits to having signed cheques "in blank" and, Mr Dagli accepted on her behalf that such conduct might found charges of criminal carelessness but not charges of conspiracy to defraud. That lesser charge can, said Mr Dagli, result in theory in a prison sentence but, in his experience, where such charges had been levelled successfully against local government officials in the past, the penalty had usually been financial. Mr Dagli’s evidence was that the preferment of these far more serious charges was evidence of political motivation and bad faith. Again, that evidence was not countered before the District Judge.[15]In each case, it is submitted on Mrs Asliturk’s behalf that the central allegation of personal benefit to her is unsupported anywhere in the evidence, and further, that in two important respects the case against her is based upon tainted evidence. In the first place, it was pointed out that the prosecution rely on the evidence of a man called Tanju Gursu (a political opponent of Mrs Asliturk), who admits having cashed some of the cheques in issue. He says that he was given one of the cheques for a sum of 2 billion lira by Mrs Asliturk. It is said that although Mr Gursu cashed these cheques initially no charges were brought against him at all until the authorities were compelled to do so by revelations in a television broadcast. It is also alleged that Mr Gursu is now the subject of criminal charges in Turkey in respect of alleged tampering with official documents relating to the Health Centre project in respect of which the 2 billion lira cheque was issued.[16]Secondly, with regard to all the cheques, the prosecution apparently rely upon the evidence of Mr Demirel who, in all the relevant cases, was a co-signatory with Mrs Asliturk on the cheques in question. Mr Demirel’s allegation is that he acted on Mrs Asliturk’s instructions. However, in the case of one such alleged instruction, Mr Demirel is said to have produced a document which he said was a written instruction from Mrs Asliturk. The document was examined by experts in Turkey and the relevant signature was found not to be Mrs Asliturk’s signature at all: see Bundle 3: Tab3 pp. 153-154. It is submitted, therefore, that in a very crucial respect Mr Demirel (who at best is charged as a co-conspirator) appears to have given unreliable testimony in support of the proposed prosecution of Mrs Asliturk.[17]I should add a few words concerning charge 6 in which it is alleged that Mrs Asliturk carried on the business of SIPA for a fraudulent purpose, namely as a means of "disguising and laundering" the monies paid out by Sisli to SIPA. It is alleged that this conduct was equivalent to an offence under section 458 of the Companies Act 1985. Neither the charges nor the expanded allegations contain any further particulars. It seems that this is no more than an "umbrella" allegation comprising the other matters raised. Accordingly, the same objections arise in respect of this charge also.[18]The written evidence from Mrs Asliturk and from Mr Dagli, which was all before the District Judge and has been before us, ranges widely over these allegations and much of it was reviewed in extensive oral examination and cross-examination before the District Judge. Such an extensive review has not, of course, been possible in this Court.[19]On this material the District Judge had to consider the questions arising under section 6 of the 1989 Act, but the questions now arising under section 11 are matters for this Court. After this extensive review of the facts, the learned District Judge reached the following conclusions which, in my view, are material to the questions which now arise. At paragraph 27 of his Decision, the District Judge said this, " 27. Before turning to individual consideration of the two subsections there are some factors which are general in their nature and thus common to both considerations. The statement and evidence of the defendant contains strong specific contentions that the prosecution is politically motivated. The defendant was cross-examined to some extent along the general lines that she is in fact guilty as charged and that there is no justification for her seeking to suggest political motivation in her prosecution, which, it is said, places her in no different position to her co-indictees. I find that the challenges to the defendant along these lines did not dent her contentions at all. …." In other words, Mrs Asliturk’s credibility was not undermined before the District Judge, even in a situation where, in the absence of written evidence from the Government, she could have had little or no notice of the points that were going to be put to her.[20]Next, at paragraph 29 of the Decision, the learned district Judge said, " 29 To this must be added, however, such weight as I feel able to give to the evidence of Yagiz Ali Dagli. In the course of his written and oral evidence he has stated his view that the accusations are politically motivated. Additionally, although optimistic that the outcome of the case in due course, if the defendant were to be extradited, would be her acquittal, he nevertheless makes clear that she is liable to be detained in custody for a considerable period before any such possibility arises. In this connection he instanced at the hearing in July a client of his who, he said, had been detained in custody without conviction for 10 years. Resuming after the lengthy adjournment, sought by the government, (which, it was said, was required because ten topics had been raised by the witness to which consideration needed to be given) counsel for the Government vigorously challenged Mr Dagli both as to his general probity and on the basis that he had earlier deliberately tried to mislead this court. The witness protested that, as a lawyer, he would never attempt to mislead the court and gave answers which satisfied me that not only had he not sought to mislead the court but his evidence as originally given survived the attacks upon it. I thus absolutely reject any criticism of the defendant’s lawyer and I am satisfied that in giving evidence he was honourable and loyal to his profession and indeed to his country. The fact that his criticisms of the system in Turkey were made with diffidence and reluctance (and sometimes he felt inhibited from even expressing criticisms openly) convinced me of his probity. I find that his evidence provides substantial support for the defendant’s contentions." To my mind, it is of note that Counsel for the Government, clearly on specific instructions, challenged Mr Dagli’s probity and veracity, without the Government having adduced any evidential material to support that challenge.[21]Then, in paragraph 32

the Judge concluded:

" 32. …….Weighing and considering all the material in the manner prescribed by the authorities and on the basis that I am here looking at the historical position I feel confident in saying that not simply is there a reasonable likelihood or a strong possibility but that it is on balance more probable than not that the genesis of the decision to prosecute the defendant for the offences for which her extradition is sought derives from political considerations rather than in order genuinely to prosecute her for the crimes alleged against her and that political intrigue and jealousy (enhanced, perhaps, by media references to her being seen as a future Prime Minister), disapproval of her as a person and the many and various other matters put forward by the defendant have, through the operation of the "system" in Turkey, combined to produce the result the defendant now faces."
[22]Finally, I would refer to the further conclusion at paragraph 39:
" 39. My conclusion, thus is that, despite advancing a strong and compelling case leading to the conclusion that she is being prosecuted more because of political factors than of faith in the validity of the criminal charges, the defendant has not succeeded in bringing herself within the restrictions on return provided for by section 6. No doubt such matters will fall to be further considered in due course in relation to section 11(3)."
[23]Mr James Lewis QC (for the Government) submitted, quite rightly, that the jurisdiction to be exercised now is an original jurisdiction and that we are not bound in any way by the District Judge’s findings of fact. However, he accepted (also rightly) that we are entitled to take those findings into account.[24]Mr Lewis’s submission was that the arguments raised by Mrs Asliturk, pointing to alleged flaws in the prosecution evidence were really matters for trial and that, under the European Convention regime, the Government is not obliged to establish a prima facie case of guilt. He pointed the Court to aspects of the evidence indicating that Mrs Asliturk did indeed have a case to answer and submitted that her protestations of innocence were matters for the Turkish courts. However, in my view, that ignores the fact that the material was adduced on Mrs Asliturk’s behalf for the purpose of demonstrating that the accusation was political and was not made against her in good faith and that it would, therefore, be unjust or oppressive to return her to Turkey. As I have already stated in earlier parts of this judgment, the Government made no effort at all to counter this material and, like the District Judge and with the assistance of his conclusions after he had seen the witnesses, I find myself reaching the same conclusions as he did on the material before this Court. The impression is compounded by the fact that since the decision in the Magistrates’ Court and the Judge’s conclusions there has still been no evidential challenge by the Government to the evidence adduced in that Court. Nor has there been any attempt to provide evidence to demonstrate that the District Judge’s conclusions were wrong. Mr Lewis was, therefore, reduced to conducting the exercise that I have already described on the documentary material alone. It was a classic example of attempting (valiantly and ably) to make bricks without straw. In my view, that attempt failed. In such a state of affairs I find myself convinced on the available evidence that the accusation is not made in good faith within the meaning of section 11 of the 1989 Act. I accept Mr Blake’s submission that the findings of the District Judge, which I find that I share, amount to clear unchallenged evidence satisfying the statutory test and that, accordingly, it would be unjust to return her to Turkey. For those reasons, I would grant the application.[25]I have not reached this conclusion in any way reliant upon the evidence (again unchallenged by the Government or even by Counsel on instructions) that Mr Dagli was the subject of a criminal prosecution (ultimately unsuccessful) because of the evidence that he gave before the District Judge. There seems no reason to doubt that this prosecution occurred. In my view, such a proceeding against a witness who has given evidence in extradition proceedings in a Convention country because of the contents of that evidence (to put it at its lowest) can only serve to undermine the integrity of the mutual assistance procedures intended to be created by the Convention.[26]Both Mr Blake and Mr Lewis were in agreement that the circumstances giving rise to a challenge to extradition under section 6 cannot add to a conclusion that the challenge under section 11 succeeds and, therefore, I would not propose to consider that further question. I would merely add that, having heard the arguments, I am not presently convinced that the phrase "political opinions" in section 6 is confined to the concept of beliefs in particular policies. Both Counsel were agreed that the concept should be given a wide meaning, favourable to an applicant like Mrs Asliturk. If that is right, I do not see why the statutory expression "political opinions" should not be taken to include a political standpoint by a person that his or her leadership or other position in a government, national or local, would be better than that of a rival sharing a similar political philosophy. Opinion as to whose governance is more or less desirable is equally, in my view, a "political opinion". However, I need say no more on this topic since, as already indicated, I would allow this application for the reasons given. Lord Justice Kennedy: I agree.

Cited in 3 later judgments