Konuksever v The Government of Turkey [2012] EWHC 2166 (Admin)

Case No CO/11466/11

[2012] EWHC 2166 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 27/07/2012

Before

LORD JUSTICE DAVIS

MR JUSTICE IRWIN

Between

Tahir KonukseverAppellant

The Government of TurkeyRespondent

Mr Ben Cooper (instructed by Kaim Todner Solicitors Ltd) for Appellant

Ms Ally Wilkes (instructed by The Crown Prosecution Service) for Respondent

Hearing Hearing dates: 31 May 2012

Judgment

Introduction

[1]The Appellant Tahir Konuksever is a Turkish citizen. His extradition has been requested by the Government of Turkey. Turkey is a Category 2 territory within the meaning of Section 69 of the Extradition Act 2013 [“The Act”]. Mr Konuksever [“the Appellant”] appeals pursuant to Section 103 of the Act against a decision of District Judge Nicholas Evans given following written and oral evidence and argument presented on 1 September 2011, in a written judgment delivered on 15 September 2011. The Secretary of State on 14 November 2011 ordered the Appellant’s extradition.

Factual Background

[2]The Appellant was born in 1972 and is of Kurdish ethnicity. According to the Proof of Evidence from the Appellant placed before the District Judge, the Appellant’s grandfather moved the family from Eastern Turkey to Aksaray where both the Appellant and his father were born. As confirmed by Professor Bowring, this is a region of Turkey where Kurds are very much in the minority. The Appellant states the family has “suffered from persistent discrimination” due to their origins.

[3]The Appellant married in 1989 and had a baby daughter. On his account his daughter died in March 1992 because she was “murdered by some locals shooting at our house”. This account is in complete conflict with the judgment of the local Criminal Court of First Instance dated 12 March 1992 concerning the death of the child. According to the court record there was a finding based on the confession of the accused persons, including the Appellant, to the effect that the Appellant’s young daughter died because her sibling “Safiye”, took the Appellant’s hunting rifle:

“which was hanged on the wall and started to tampering it; during tampering, the rifle went off and the bullet hit 1.5 year old Fatma Konuksever who was sleeping on the floor causing her death, upon this event, the accused Tahir Filiz and Fatmana Filiz Konuksever buried the deceased child without informing any authority and without permission.”

The court record suggests the Appellant was convicted of causing injury by negligence and organising a burial of his daughter without permission. He was fined.

[4]These events do not bear directly on the extradition, however they form the beginning of wide ranging conflict between the account given by the Appellant and the court record disclosed from Turkey.

[5]On the afternoon of 22 February 2000, local police recorded a telephone call from an anonymous informant suggesting that this Appellant and his father Dursun Ali Konuksever “dealt with firearm trafficking and kept a long barrelled rifle and pistol at their house”. At about 4.00pm that afternoon police attended at the house where the Appellant lived with his wife, his mother and father and his children. The police found a Kalashnikov rifle and a 7.65 mm calibre CSM pistol concealed in the Appellant’s bedroom. Both the Appellant and his father were arrested.

[6]According to the record, the Appellant gave an account which he formally confirmed in a preliminary court hearing on the following day. He claimed that the rifle and pistol were his and his father had no knowledge of the weapons. He claimed he had obtained the weapons in 1997 and that they were bought for his own protection and that of his family. He denied dealing in guns. According to the record, when he signed this account on the afternoon of 23 February he was already represented by a defence lawyer.

[7]On the following day 24 February 2000 the Appellant attended at the Public Prosecutors office again represented by a lawyer. He gave an account consistent with that given the previous day, the account being reduced to writing. His lawyer is recorded as saying:

“My client confessed his offence sincerely according to his statement, his father had no connection with this event. I request my client be released pending trial ……..”

As a result of this preliminary investigation the matter was submitted to the Chief Public Prosecutor’s Office, having been signed by a Judge, a clerk defence counsel and the accused. The Appellant was remanded in custody.

[8]By 7 March 2000, the Appellant was still in custody, by now at the Aksaray Penal Institution. He made formal appointment of a different defence attorney on that date. On 8 March, the file was delivered with an indictment to the Criminal Court of First Instance and on 10 March the Appellant was arraigned. At this stage the charge he faced was trafficking in firearms. He indicated his intention to defend that charge.

[9]On 30 March, the Appellant was still in custody and was produced again before the court. The Appellant accepted the charges of possession of the weapons and his advocate confirmed that “he confessed his offence before the courts sincerely”. However, he emphasised that the charge of trafficking was rejected. The advocate requested the release of the Appellant pending trial, the court ordered that the Appellant’s wife should be deposed on the facts and remanded him in custody, whilst also ordering an expert report on the weapons.

[10]The weapons were tested on 5 April and the results recorded in an expert report of 10 April. Both weapons were in good working order and both were successfully test fired, using ammunition which had been seized from the Appellant’s house at the same time.

[11]On the following day 11 April the Appellant again appeared before the court. His advocate indicated there was no challenge to the examination and the expert witness report. The Appellant’s wife then gave evidence to the court. She confirmed that the Kalashnikov rifle and the pistol belonged to her husband. She confirmed that the weapons were always in the separate room used by her and her husband and there was no connection between them and the Appellant’s father. She went on to confirm that the weapons had remained in the home and that her husband neither took them out nor did he buy or sell weapons at all. The Appellant’s advocate submitted to the court there was no evidence to sustain the trafficking charge, and the court agreed. This more serious charge was dismissed. The uncontested charges of possession stood and the court went on to decree that:

“By taking into consideration the good behaviour of the accused during the trial and his help to the court by confessing his offence his penalty would be reduced to 4 years and 2 months imprisonment and “a heavy monetary fine of 76.050.000 TL”

The Appellant was then released from custody. As we understand it, this is likely to be a common procedure where appeal is as of right and there is no procedural requirement that the prison sentence should begin immediately.

[12]On the same day the Appellant’s advocate entered Notice of Appeal, the grounds being given in a document of 28 April. The appeal appears to have been directed to penalty, on the basis that the “penalisation” was in accordance with the wrong article of the code.

[13]To be set alongside the court records are three medical certificates from February 2000, dated 22, 23 and 24 February successively. In each case doctors signed to say that there were “no marks of battery and coercion” on the Appellant’s body on physical examination. The earliest of these from 22 February bears the appearance of being typewritten. Those of 23 and 24 February bear the appearance of being generated by word processor a point made the subject of adverse comment by the Appellant. In similar fashion, there is in the papers a certificate from the Director of the “closed prison of Ankara CPA” indicating in relation to the Appellant that he was a detainee at the prison from 24 February to 11 April 2000 and “no report indicating that the detainee was subjected to any battery or maltreatment was found”.

[14]In the Appellant’s Proof of Evidence placed before the District Judge, he gives an account inconsistent with the court records. The relevant passages are as follows:

“In 2000 my father’s house was raided by anti terrorism police. At this time I didn’t live in my parent’s house. Filiz and I and our five children lived in our own house some 200 metres away. They found a Kalashnikov and a pistol. I was immediately arrested and spent 4 days in custody from the Thursday to a Monday; remember it was a Thursday as it was the day before we go to the mosque. During this time I was tortured by the police who were interrogating me. 8. I find it very hard to talk about what happened to me and it also hard to remember everything as it is like going through it all over again. I have tried to lock it away as it is too painful to remember, I still have nightmares and when asked to talk about it I get very upset and angry and find it hard to cope with my life. 9. First I was beaten with a rifle butt, and kicked again and again. I had my toenails were pulled out. And because I was not talking I was taken to a different room and required to remove all of my clothes a metal harness was placed around my buttocks and genitals almost like a chastity belt and I was suspended by chains, attached to the ceiling and I was pulled up and down like a car being winched. I was then submerged in cold water, then I was connected to something like a car battery but bigger. I was electrocuted. This happened many times some of the times I passed out from the pain. I wasn’t allowed food or drink or any rest for the whole of the four days. 10. Whilst being electrocuted, I heard someone say “he doesn’t want to talk” while someone else said to, “increase it”

. Of course I signed the statement which was placed in front of me. I would have signed anything for them to stop or they may not have stopped until I was dead. I remember being asked “are you Kurdish, how do you have these guns?” I was also accused of being a member of the PKK. I suffered from a hernia from the torture and major scarring to my genitals. For 3 months I passed blood in my urine. I was not allowed to see a doctor. 11. I spent 3½ months in custody before trial. The conditions in the prison were bad. There was regular fighting and racial abuse. Everyone knew why I was being tried and Kurdish people were discriminated against for just being Kurdish. The guards were verbally and physically abusive, swearing at me and beating me. Isolation was used as a punishment. Not everyone was treated like this. It was due to my Kurdish background. My lawyer’s application for bail was refused. I was never given the opportunity to enter a plea. The Public Prosecutor, Ferhat Sarikaya has since been convicted of racism offences. I remember the prosecutor asking me why I wanted to come out of jail when I had PKK guns on me. 12. On my second court appearance I was informed that I would be sentenced to 4 years and 2 months in custody. I still was never given the opportunity to enter a plea. However this sentence would have to be approved by a superior court before I would begin my sentence. I was released in the meantime. But I was not told that I could not to leave the county. My lawyer Orhan Altinsoy, told me that nothing had happened to my case. I asked the prosecutor as well and he said he didn’t know where the file was. ……. 14. I was also regularly accused of being a member of the PKK and my father’s house was often raided and searched. I felt that if I did not leave Turkey I would be killed. I therefore contacted, through a friend, an illegal mafia organisation who arranged to smuggle me out of the country. I already had a passport so I was given a visa for Germany. From there I travelled by car to France and a container lorry took me the rest of the journey to the United Kingdom.”

[15]The Respondent Government, amongst other things, contest the Appellant’s account of a clandestine departure from Turkey. A record has been produced of a computer passenger enquiry against the Appellant’s name and date of birth and this revealed:

“that there is an exit record on 2 November 2001 at 0717 from Esenboga Airport by the passport serial numbered TR/M750049 and there was no other entrance record.”

It was therefore the Respondent’s case that the Appellant was able to leave Turkey perfectly openly on his own passport on a scheduled flight in November 2001.

[16]On 6 December 2001 the Court of Cassation on the Eighth Criminal Circuit dismissed the Appellant’s appeal and confirmed the judgment and sentence.

[17]In part of the note created by the Aksaray Chief Prosecutor’s Office in June 2011 in preparation for the hearing, the Turkish Public Prosecutor records that “an Apprehension Warrant” for the Appellant was issued on 10 January 2002 and sent to the local police for his arrest. He had of course already left. The Public Prosecutor goes on to say that:

“From 2002 when the Apprehension Warrant was issued to 2009 the Appellant’s whereabouts in the United Kingdom was unknown.”

Asylum Proceedings

[18]It is normal practice on the part of the Home Office to keep entirely separate from extradition proceedings any immigration and asylum proceedings relating to an individual whose extradition is sought. This is in order to avoid the possibility that any allegation of mistreatment made in an asylum application is used as an objection to extradition, where it might be said that the mere allegations could lead to a risk of mistreatment or worse if the individual were returned. In this case, the Government of Turkey requested disclosure of the material arising in the asylum claim made by the Appellant. This was refused by the Appellant. As Mr Cooper frankly explained, this was really on the basis of reciprocity in the face of the established Home Office practice. As he also frankly acknowledged, there was little logic to it in this case, since his client was making the most explicit allegations of torture against state actors in Turkey. In other words, the damage was already done. However, in the result, neither before the District Judge nor before us was there any full disclosure of the material from the Appellant’s asylum claim.

[19]However, what was disclosed to the District Judge was the report of the Appellant’s case in the Court of Appeal: R (on the application of K) –v- Secretary of State for the Home Department

[2009] EWCA Civ 660

[20]The history recited in the course of that judgment confirms the Appellant arrived in the United Kingdom in November 2001, a finding consistent with the exit stamp from Ankara Airport. He apparently applied unsuccessfully for asylum and his appeal on asylum and human rights ground was dismissed by an adjudicator in April 2003. The Appellant’s case was based on fear of a vendetta against him and his family by three families in the village in which he lived. They had accused him and his family of being PKK sympathisers, which he had said he was not. The 2001 complaint against him was said to come from these families. The judgment goes on to recite:

“He did in fact have weapons at his house or at least he had an unlicensed gun, but there were nothing to do with assisting the PKK. His evidence was that the police came to his house he was arrested the weapons were confiscated. He was held in detention for 4 days and was interrogated in the anti-terror headquarters at Aksaray.”

[21]The judgment goes on to recite as follows: “In his witness statement he described as follows the treatment he received on that occasion: ‘I was beaten and questioned. They wanted to know if I was a member of an organisation. They said if I told them I was I would be released. I was electrocuted. I was taken to a tiled room. I was told to undress. It looked like a bathroom. I was handcuffed and secured to the floor. They put a metal bolt on me. It went across my waist and between my legs. They then pressed a button and I received electricity.’ Following that he was released and taken to court and was subsequently remanded in custody in a probation centre, but there was no further allegation of ill treatment. He was convicted on a charge of possessing illegal weapons and was sentencing to 4 years and 2 months imprisonment together with a fine. He was released pending an appeal against sentence. While he was in Istanbul awaiting the appeal he was given help to flee the country and come to the United Kingdom.” ‘I was beaten and questioned. They wanted to know if I was a member of an organisation. They said if I told them I was I would be released. I was electrocuted. I was taken to a tiled room. I was told to undress. It looked like a bathroom. I was handcuffed and secured to the floor. They put a metal bolt on me. It went across my waist and between my legs. They then pressed a button and I received electricity.’

[22]The Court of Appeal summarised the findings of the Adjudicator. The Adjudicator did not find that the fear of persecution from three families was credible, but even if it was, internal relocation was available to him and there was a sufficiency of protection. The sentence passed on him for possession of a weapon was not unduly severe. The Adjudicator observed that the Appellant had been placed on reporting restrictions and that “there was some evidence of ill-treatment but none required hospitalisation”. The Adjudicator went on to conclude the Appellant would not face any harm or ill-treatment based on association with the PKK and that it was also clear the Appellant’s past arrest had not led to the authorities viewing him as a suspected terrorist. There was no evidence that he would be seen as a political activist.

[23]The Court of Appeal went on to recite that in March 2006 the solicitors then acting for the Appellant sought to make a fresh asylum claim. The rejection by the Secretary of State of that attempt had led to the judicial review proceedings subject to appeal. The matter related to a letter of further representation submitting a medical report by Dr M G Wright in September 2006, and the subsequent refusal by the Secretary of State to accept the evidence of Dr Wright as giving rise to a fresh human rights claim.

[24]The report from Dr Wright, considered by His Honour Judge Inglis and in the Court of Appeal, is still relied on by the Appellant in the extradition proceedings. At that stage, of course, it stood unsupported by the other expert material. The Court of Appeal dealt with this evidence as follows:

“8. Dr Wright is a consultant rheumatologist and an expert on soft tissue injuries. His observations on the scars revealed in the course of his medical examination of the appellant included the following: “On the left side of the shaft of the penis there was a well-healed scar measuring 3cm in length. On the glans penis there was a small circular indentation scar, which was deeply pigmented. On the right side of the penis on the shaft there was a linear scar measuring 1 cm with a broadening of that scar anteriorly.” 9. In his comments Dr Wright stated that the Appellant had described the period of detention in which he was beaten and tortured by the application of electric shocks. In the doctor’s view the scars on the penis were compatible with that history; he was unable to think of any other obvious cause for the scars, which did not appear to have been caused by surgery or disease. In addition to the scars on the penis, Dr Wright referred to certain other matters which are not relied upon and I need not detail.” “On the left side of the shaft of the penis there was a well-healed scar measuring 3cm in length. On the glans penis there was a small circular indentation scar, which was deeply pigmented. On the right side of the penis on the shaft there was a linear scar measuring 1 cm with a broadening of that scar anteriorly.”

[25]The Secretary of State’s decision letter on the fresh claim dismissed Dr Wright’s report, on the basis that the account of ill-treatment given by the Appellant to the doctor was inconsistent with that given by him in his original witness statement, where he had made no mention of injury to his penis as a result of the ill-treatment he suffered. The Secretary of State also relied on objective information as to the improvement in Turkey strengthening provisions against torture and ill-treatment. He further relied on passages from the Adjudicator’s decision showing the absence of any connection between the Appellant and the PKK and on other passages relevant to the absence of risk on return.

[26]The Court of Appeal then focused on the reasoning of His Honour Judge Inglis quoted in paragraph 18 of the judgment. It is not necessary for me to repeat all of that. The Judge’s conclusion was in essence that it was not unreasonable on behalf of the Secretary of State to conclude that the evidence of Dr Wright did not alter the future risk to the Appellant. The Adjudicator had come to the conclusion that there was “no real threat of ill-treatment to a relevant degree in the Claimant’s case”. The introduction of the medical evidence from Dr Wright did not give rise to a reasonable prospect of success before the immigration judge, which would itself turn on the rationality of the Secretary of State’s view of future risk. As Richards LJ put it in paragraph 22 of the Court of Appeal decision:

“In my judgment that was a perfectly rational conclusion to reach: Dr Wright’s evidence provides support for the Appellant’s account of ill-treatment at the hands of the anti-terror police and might be capable of leading to a finding of the ill-treatment suffered on that occasion amounted to torture, but it was not capable of altering the Adjudicator’s conclusion that there was no real risk of further such ill-treatment on return. 23. The crucial point as I see it is that the Appellant was handed over to the anti-terror police and suffered ill-treatment at their hands in 2001, immediately after weapons had been discovered at his home and he had been arrested. It is evident that the purpose of the interrogation on that occasion was to establish whether he had any links with the PKK. It is equally evident, as found by the Adjudicator, that the authorities accepted that he did not have any such links, and he was not thereafter suspected of PKK involvement. There was on the Adjudicator’s findings no reason why he should be handed over to the anti-terror police or be at risk of ill-treatment from them on return.”

[27]So far as any later immigration or asylum claim was concerned, there is no suggestion that it adds anything to the extradition case.

Extradition Proceedings

[28]A warrant was first issued in Turkey for the Appellant’s arrest on 30 June 2009. The Court was told that until that point the Government of Turkey was unaware of the Appellant’s whereabouts. On 15 September 2009, Turkey requested the Appellant’s extradition. A certificate was issued on 4 November and on 24 November 2009 DJ Purdy issued a warrant for the arrest of the Appellant.

[29]On 16 February 2010 the Appellant was arrested at home and extradition proceedings were commenced, with the initial hearing listed on 17 February 2010. The court adjourned the proceedings to allow time for the preparation of expert reports to assist the Appellant. It became apparent that the Secretary of State had agreed to reconsider her previous refusal of asylum and to consider any evidence advanced that the Appellant had been tortured. The court allowed the adjournment of proceedings to ensure that the Secretary of State was able to reach a decision first. According to the judgment of DJ Evans, the matter was then repeatedly adjourned, so that the final and effective hearing on 1 September 2011 was the 15th court hearing.

[30]When the matter came before DJ Evans on 1 September 2011 he was asked once again to adjourn the matter on the basis that the Secretary of State had not yet reached a fresh decision on the asylum claim. This application was based on the procedure recommended in R (Chichvarkin & Another) –v- SSHD

[2011] EWHC Civ 91

. DJ Evans accepted that the fact of active consideration by the SSHD of an asylum/human rights claim was a “strong factor” in favour of adjournment, but he nevertheless declined to adjourn the case further. His reasons are set out in paragraph 4 of his judgment. Since there is no challenge to that part of his decision, there is no need to rehearse them here.

[31]Following that refusal to adjourn, the application was renewed on a different basis. On 19 July 2011 the Government of Turkey identified the relevant limitation period for the enforcement of the Appellant’s imprisonment as expiring on 6 December 2011, a date which it was then said could not be extended. At that stage it was said that if the extradition proceedings, whether by appeal or otherwise, were extended beyond the deadline, then the Appellant would be entitled to ask for his discharge in any event. The evidence before the Magistrates’ Court stated, inter alia, as follows:

“In this case, it is certain that the statute of limitation will expire on 06/12/2011. This provision is not peculiar to the convict Tahir Konuksever or to persons in the same condition. It is a general provision. In other words, the person leaving the jurisdiction or being in jurisdiction does not change the statute of limitation period…..there is not any mechanism to change the period in our case. The period is absolute……….if the convict Tahir Konuksever is extradited after the end of this period, the imprisonment sentence will be abolished. Therefore, it will be impossible to execute his sentence.”

[32]The District Judge declined to adjourn on this basis also. He proceeded to hear the case, rejected the Appellant’s appeal and decided to send the case to the Secretary of State as already indicated. I will address his reasoning below. However, it is helpful to complete the procedural history before doing so.

[33]The District Judge handed down his decision on 20 September 2011, and the Appellant appealed. No step had been achieved in the appeal before 6 December came and went. On 20 December the Turkish Chief Prosecutor applied to the Criminal Court of First Instance to revoke the Appellant’s sentence on the ground that the limitation period had expired. This was done.

[34]On 18 January 2012, the Government of Turkey applied to adjourn the appeal proceedings. The court was told that the Crown Prosecution Service acting on behalf of Turkey wanted additional time so as to get explicit instructions whether or not to seek to proceed with the extradition. It appears to be common ground that the view on all sides was this was a formality. Both the Appellant and those representing the Government of Turkey were of the view that the extradition could not proceed because of the expired limitation period. In that context, the Appellant agreed to the adjournment and the appeal fixed for 2 February 2012 was removed from the list.

[35]On 3 February, the Turkish Chief Prosecutor applied to the Turkish Court for a reversal of the decision on the revocation of sentence. The basis appears to have been, in effect, that the English extradition proceedings could properly be deployed as a “stopping of the clock” in Turkey. It is not clear why this argument had not been deployed earlier. Nor is there any evidence to explain why such categorical statements as to the irrevocable nature of the December limitation date were made whilst this argument was apparently available to the Chief Prosecutor. Whatever the answers to those questions, the Turkish court reversed the revocation of sentence on 6 February 2012 and on 14 February that decision was communicated to the Appellant in England. Amongst other grounds of appeal, the Appellant argues that this sequence of events amounts to an abuse of process which should be sufficient, at least in the context of this case, to prevent extradition.

Key Evidence Before the District Judge

[36]I return to the substantive hearing on 1 September. The Appellant was not called to give evidence before the District Judge although his statement was received. The District Judge had the decision of the Court of Appeal and, as indicated, had evidence in the extradition proceedings from a broader range of expert opinion than was available to the Court of Appeal. The District Judge also had the detailed documents from Turkey as analysed above.

[37]The District Judge was perfectly properly influenced by the decision not to call the Appellant. In paragraph 13 of his written judgment he observed:

“K can hardly expect the Court to attach as much weight to what he says in his proof as the Court might have done had it heard his live evidence and saw how he coped with cross-examination.”

The District Judge went on to analyse the statement against the other evidence and, observing the discrepancies between the detailed documentation from Turkey and the account in the Appellant’s witness statement, he concluded that the Appellant was a:

“….completely unreliable witness who, as far as I can tell, has from a very early stage put forward materially false accounts to support his asylum claim.”

[38]The District Judge clearly had well in mind the judgment of the Court of Appeal in the asylum proceedings. Amongst the findings of fact recited by Richards LJ in the Court of Appeal, the most striking was to the effect that the Appellant’s account of ill-treatment was supported by the evidence of Dr Wright. The evidence:

“……might be capable of leading to a finding that the ill-treatment suffered on that occasion leaded to torture, but it was not capable of altering the adjudicator’s conclusion that there was no real risk of further such ill-treatment on return.”

Paragraph22 The judgment went on:

“23. The crucial point, as I see it, is that the Appellant was handed over to the anti terror police and suffered ill-treatment at their hands in 2001, immediately after weapons had been discovered at his home and he had been arrested. It is evident that the purpose of the interrogation on that occasion was to establish whether he had any links with the PKK. It is equally evident, as found by the Adjudicator that the authorities accepted that he did not have any such links, and he was not thereafter suspected of PKK involvement. There was, on the Adjudicator’s findings, no reason why he should be handed over to the anti-terror police or be at risk of ill-treatment from them on return.”

[39]Richards LJ went on to say:

“……it is sufficient to say that previous ill-treatment – even if amounting to torture at the hands of the anti-terror police when they were seeking to establish whether he had links with the PKK – can be of no relevance to future risk of ill-treatment as an ordinary prisoner serving a sentence or a non-political offence. The two contexts are completely different and the factors that led to ill-treatment on the one context would have no part to play in the other.”

Paragraph 24

[40]It follows that the thrust of the decision of the Court of Appeal was as follows. It was a rational conclusion on the evidence before the court that there had been ill-treatment, which might well properly be regarded as torture, but it was reasonable to conclude there was no risk of future ill-treatment. The Turkish authorities had concluded the Appellant was not a PKK terrorist and accordingly there was no real risk of future repetition. That was the context into which the additional evidence was introduced before the District Judge.

Further Evidence Before The District Judge

[41]In the course of the hearing before him, the District Judge received a quantity of written evidence which included the series of detailed documents from Turkey with translations. He also received a number of expert reports. In date order they began with the report from Dr M G Wright a Consultant Rheumatologist dated 24 August 2006 focusing on scarring. There was a report from Dr John Joyce of the Medical Foundation for the Victims of Torture dated 14 September 2010. Dr Joyce has both surgical and medical qualifications and training and is a specialist in torture and its effects. There was a report from Dr Jan Falkowski, Consultant Psychiatrist, dated 25 November 2010 focused on the Appellant’s mental condition. There was a report from Professor Derrick Pounder, dated 22 April 2011, a Professor of Forensic Medicine who has a special interest and expertise in torture and on events in Turkey. The court also received a report from Professor William Bowring, Professor of Law at Birkbeck College London University dated 11 May 2011. Professor Bowring has a special interest and knowledge in the human rights situation in Turkey. Other written material was placed before the court by the Appellant dealing with the overall position in Turkey.

[42]DJ Evans made no record in his judgment of the oral evidence he had received. We were informed by counsel that Professor Bowring gave oral evidence. It was not clear to us what further oral evidence had been given in the course of the hearing.

[43]The report of Dr Wright is directly supportive of the account of torture to the Appellant’s genitals. Dr Wright considers that the umbilical hernia is consistent with trauma to the abdomen. He also observed the scars to the left foot and right knee which were either suggestive of gunshot injury or compatible with that caused, consistent with the Appellant’s account to Dr Wright of shotgun discharge. This was the medical evidence available in the asylum claim which was reviewed by the Court of Appeal.

[44]The report of Dr John Joyce (14 September 2010) interprets the scars and hyper-pigmentation on the Appellant’s genitals and leg as corroborating his account of electric shock torture to the genitals. Dr Joyce also considers that the para-umbilical hernia is consistent with the Appellant’s account of beating. Although Dr Joyce is not a psychiatrist, he considered at the time with his examination of the Appellant that he was depressed and suffering from PTSD as a result of his experiences.

[45]Dr Jan Falkowski (25 November 2010) examined the Appellant on 22 November 2010, accompanied by his wife and an interpreter. Dr Falkowski had a number of previous reports available to him including those of Dr Wright and Dr Joyce. Dr Falkowski observed that the Appellant was very anxious and distressed in the course of the interview. His answers were long and rambling. He appeared objectively to be anxious and depressed and subjectively described his moods being low. The Appellant described intrusive thoughts, flashbacks and dreams about the torture. Dr Falkowski diagnosed as suffering from Post Traumatic Stress Disorder and from “a major depressive disorder”. His conclusions continue as follows:

“Although he has been treated with antidepressants in the past he is not receiving any treatment at present. Given the severity of his symptoms of PTSD and their duration he is likely to continue to suffer from PTSD for the rest of his life. If he receives specialist treatment…….his symptoms may improve but they are likely to still persist. He is likely to continue to suffer from a major depressive disorder as a result of his suffering from PTSD. His depression may be improved with treatment with antidepressants. If his depression fails to respond to treatment from his local general practitioner he should be referred to his specialist local psychiatric services.”

[46]Dr Falkowski was also of the view that a return to Turkey would very likely mean that the Appellant’s depressive disorder would become worse and that his suicidal ideation would increase. He concluded that there was a significant risk the Appellant may attempt suicide if he is returned to Turkey. That risk would be “more likely to happen if he is imprisoned there”.

[47]Professor Derrick Pounder declined to make a medical examination of the Appellant. Having read the contents of the papers provided to him, he formed the view that an interview of the type he would normally carry out, necessitating a detailed exploration of the events said to constitute torture, would have a significant risk of damaging the Appellant’s mental health. His views were therefore based on the documents provided to him. Essentially his report bears on the credibility of Mr Konuksever’s account and the credibility of the various documents used on behalf of the Government of Turkey designed to counter the allegations of torture. Professor Pounder has expertise in the history of ill-treatment in Turkey and of official and medical responses. His conclusion is that:

“Taken in the round, the account of ill-treatment given by Mr Konuksever, while it might appear shocking, it is (sic) relatively unremarkable when viewed against the background of the not infrequent and widespread use of ill-treatment and torture by the police in Turkey……the alleged overall pattern of treatment is a common one amongst those cases at the higher end of the spectrum. The medical reports from Turkey have no value in assessing the credibility of the allegations. Similarly the absence of any formal complaint to the prosecutor or the courts maybe no more than a calculated practical response to the environment impunity which is recognised as such by international interlocutors.”

[48]Professor Bowring, from a legal and historical point of view, focused on the history of discrimination and ill-treatment of Kurdish people in Turkey. His opinion was that it was “highly likely that the Defendant would if returned continue to suffer discrimination as a Kurd, especially a Kurd in whose home weapons were found in 2000, even if he was not charged with terrorist offences.” In his report the Professor was asked:

“Is there any risk of discrimination at the hands of the police, courts or prosecution with regards to his appeal against conviction and sentence, in view of his Kurdish ethnicity or perceived liaison to the PKK?”

His answer to that was:

“There is clearly a greater than negligible risk – “any risk” – even though the level of discrimination and even hatred towards Kurds has diminished since the 1990s. Perceived affiliation to or involvement with the PKK, which this Defendant will without doubt carry with him for the rest of his life, makes the risk much more substantial.”

[49]Professor Bowring indicated that his experience and knowledge of the recent history within Turkey not only gave support to the Claimant’s account of his historic torture but underpinned a risk that he would in the future be mistreated in prison. He went on to say:

“conditions in Turkish prisons are undoubtedly better than they were 10 years ago. But there must for the reasons given be in my opinion a significant risk of Article 3 violations if the Defendant is returned. Reports of inter-prisoner violence in Para 81 of the report, see above, are especially worrying for someone of the Defendant’s ethnicity and conviction. That is, there must be a real risk that he would suffer ill-treatment, if not from prison staff but from fellow prisoners……..there is plainly a risk [to the Defendant’s life in prison] in view of the danger of violence from other prisoners…..”

[50]There was no expert evidence adduced before the District Judge on behalf of the Government of Turkey, and therefore no opinion evidence to contradict that given on behalf of the Appellant.

The District Judge’s Analysis of the Expert Evidence

[51]The District Judge addressed the expert evidence in support of torture. He concluded that the unexplained injuries to the Appellant’s penis:

“Were probably caused by acts of torture, although not necessarily in the circumstances as alleged by K. It is of course possible that the penile injuries were not caused by state actors, but that must be pure speculation and there is no basis for me to conclude that he suffered those injuries at the hands of non-state actors. How precisely K came by those injuries is not important once the court finds that the injuries were occasioned by torture and that was torture by state actors.”

[52]The District Judge reminded himself of paragraph 339K of the Immigration Rules, which provides that evidence that the individual has already been the subject of “persecution or serious harm, or ………direct threats of such harm” should be regarded as a serious indication of future risk unless there are good reasons to consider that such persecution or serious harm will not be repeated. The District Judge accepted that much the same approach was required by him in the extradition court. However he concluded that even though the anti-terrorist police in Turkey had “wickedly and wrongly” resorted to torture:

“Everything I read in these papers leads me to the view that the anti-terrorist police, the prosecutor and the court all concluded that K was not linked to terrorist activities and he was eliminated as someone who had any affiliation to the PKK.”

The District Judge aligned himself with the Adjudicator and found there was no real risk of the Appellant on his return being handed over to the anti-terrorist police, not least because “it is now 2011, that is 10 years on, and there is no basis for concluding that K is perceived by anyone in Turkey as having any affiliation to the PKK.”

[53]In paragraphs 26 and 27 of his judgment the District Judge expanded his conclusions, including comment on Professor Bowring’s report, evidence of course which was available to him but not available to the Adjudicator, the Judge or the Court of Appeal in the asylum proceedings. The District Judge relied on the evidence of Professor Bowring in support of the key conclusion that the Appellant’s injuries had been caused by torture, but rejected Professor Bowring’s evidence in relation to future risk. The District Judge accepted that there might have been political motivation in the acts of torture but concluded there was nothing to suggest that there was any political motivation in the extradition. He concluded there was no evidence to show that the Appellant was likely to suffer any discrimination to such a degree as to give rise to a bar to extradition, noting that 20% of the Turkish population is Kurdish. He added this:

“There is no evidence to support the contention that K will now be perceived to be a PKK sympathiser or terrorist.”

[54]In dealing with the Professor’s evidence that the Appellant would be at risk of violence from fellow prisoners the District

Judge said:

“I recognise there is always some risk of a prisoner suffering some injury resulting from inter-prisoner violence. However, there is no basis for suggesting K will be singled out for abuse and there are no substantial grounds for believing he is at real risk of suffering Article 3 ill-treatment.”

[55]It follows that the District Judge found the Appellant was unreliable and lacking in credibility. However he did find that he had been tortured. This latter conclusion was based on the medical evidence and, explicitly, on the evidence of Professor Bowring. It follows from this conclusion that at best some of the official documents from Turkey – medical certificates and/or the prison governor’s certificate were fake and designed to conceal torture. Yet the District Judge rejected Professor Bowring’s evidence on future risk.

Conclusions

[56]Regrettably, the Appellant’s position has not always been succinctly presented in this case. To my mind, there are really two points to be considered, both of them arising as “extraneous considerations” within the meaning of section 81 of the Extradition Act 2003. Both are potential breaches of the Appellant’s ECHR rights, under Article 3 and Article 6 respectively, and so section 87 is brought into play.

[57]The first point, is whether the District Judge’s decision in respect of future risk was a reasonable one. In my view he was justified in concluding that the Appellant lacks credibility as a witness, given the contradictions and conflicts arising in the accounts he has given. He was justified in finding that torture by state actors was proved. It is worth noting that it follows the Claimant is correct in that stark fact, even though the conclusion was based on objective evidence rather than on his account.

[58]In an appropriate case, such a finding will be highly important for the question of extradition, not least because of the approach set out in paragraph 339K of the Immigration Rules which I have summarised above. However, proof of torture will not always found a successful asylum claim or prevent extradition. It was unwise to present this case as if it would, since the Court of Appeal had upheld the refusal of this Appellant’s asylum claim on exactly that basis. However, the finding in this case in my view gives rise to considerable caution before proceeding with extradition. At the very least it demands a detailed and careful consideration as to future risk.

[59]Although it is not central to the challenge to the District Judge’s decision, his conclusion in paragraph 26(b) that: “there is no acceptable evidence to support the contention that K has suffered any discrimination in Turkey because he is Kurdish” seems very difficult to uphold, given the District Judge’s own findings. The sensible inference from the facts as found is that the Turkish anti-terrorist police tortured the Appellant precisely because he was Kurdish and had been denounced by non-Kurdish neighbours in Turkey as a PKK sympathiser. The denunciation and its consequences seem to me powerful evidence of discrimination on the grounds of ethnicity. On the other hand, it seems to be entirely justifiable for the District Judge to conclude that the extradition is not now being sought on any discriminatory basis.

[60]The real problem lies with future risk of harm in breach of Article 3. The District Judge accepted as important support for his conclusions the evidence of Professor Bowring. Given that future risk must be the central consideration which preoccupied him, it is hard to see from his reasons why, having accepted part of Professor Bowring’s evidence, he rejected the thrust of his evidence about future risk. In my view it requires little imagination to see how the risk perceived by Professor Bowring might come about. Assuming the Appellant would be imprisoned in his own home area he will be a Kurd within a Turkish prison in a region where there are few other Kurds. Relocation will not be open to him.

[61]Even if there is no basis for fearing violence from state actors, because the official conclusion is the Appellant is not a PKK member or sympathiser, it seems to me that one would need a reasonably firm basis for excluding the risk of inter-prisoner violence, in such a context. One misplaced piece of gossip about the earlier suspicion of PKK involvement, or even one sighting of the Appellant’s scarring, showing that he, as a Kurd, had been tortured by the anti-terrorist police, and the risk might be thought to arise. Given the accepted history here, and despite the Appellant’s lack of credibility, it seems to me that this was a serious matter which required careful reasoning by the District Judge. With great respect to him, it does not appear to me that he analysed this fully. On this aspect, it seems to me that his conclusion was wrong.

[62]Turning to the question of the procedural history, I would also hold that extradition here might well breach the Appellant’s rights under

Article 6 of the ECHR

. I should make it clear, for the avoidance of doubt, that I exonerate those who have represented the Government of Turkey in England from any suggestion of anything improper. It is clear from the careful way the Respondent’s case has been presented by Miss Wilkes throughout that nothing of that kind arises. Nevertheless, the procedural history is troubling.

[63]It is beyond doubt that there was misinformation given to the Magistrates Court in England as to the finality of the 10 year limitation date in Turkey. I am not in a position to conclude whether that was deliberate or negligent. It was clearly given to the Court in order to put pressure on the court so that matters would be brought to a conclusion before the period expired. Once the date had passed, the Turkish proceedings were dismissed. A subsequent adjournment in England was achieved only because all parties regarded the eventual outcome as a formality. Had the true position been explained to the legal representatives of the Appellant, it is inconceivable they would have agreed to any further adjournment on 18 January 2012. They did so as a formality. With complete inconsistency, and with no prior notice to the Appellant, the authorities in Turkey then achieved a reversal of the decision. It appears to me that, properly understood, this way of proceeding is capable of being viewed as an abuse of process and as a breach of Article 6. Despite my real concern I express matters carefully. I do not reach the conclusion that there was in fact an abuse of process but merely conclude that there may have been. Since these events post-date the decision of the District Judge, the events said to found an abuse of process could be raised de novo before us.

[64]For those reasons relating to Article 3, it was in my view wrong to dismiss the Appellant’s objections to extradition. His extradition would not be compatible with his convention rights and would therefore be in breach of S.87 (1) of the Extradition Act 2003. I would therefore allow the appeal from the District Judge and order that the Appellant should not be extradited to Turkey.

[65]I agree. I add only a few observations.

[66]In so far as the very elaborate grounds of Mr Cooper (advanced at the hearing in writing and orally) sought to raise continued arguments on oppression, in particular by reference to delay, and by reason of the Appellant’s health (and asserted risk of suicide), the District Judge, in my view, was entitled on the evidence to reject those points.

[67]The District Judge took a very poor view of the Appellant’s credibility, as he was entitled to do. But on one very big issue the Appellant had been truthful: he had (contrary to the Republic of Turkey’s denials) been tortured while in custody: the District Judge so found, having assessed the detailed expert evidence to that effect.

[68]That brought into play paragraph 339K of the Immigration Rules. The District Judge concluded (in fact taking much the same position as had previously been taken in the asylum proceedings) that even so the torture had been aimed at seeing if the Appellant was a PKK supporter: and the conclusion (then) having been that he was not a PKK supporter, he would not (now) be at risk if returned.

[69]There was however an amount of evidence before the District Judge to the effect that the Appellant would indeed continue to be at risk: not least, though not only, that of Professor Bowring (which had not been adduced in the asylum proceedings). Given that the District Judge placed reliance, as he expressly said, on Professor Bowring’s evidence in other respects, and that there was no competing evidence adduced, it is not really explained or reasoned as to why his evidence was rejected as it was on this most important aspect – indeed, with all respect to the District Judge, his summary observations on that evidence were cursory.

[70]On the abuse argument, the sequence of events, and unequivocal representations made on behalf of the Republic of Turkey which then were wholly displaced, as recounted by Irwin J, has given rise to a situation which is both disconcerting and disturbing. I record Miss Wilkes’ statement, on instructions, that there had been “confusion” and “error”. It is however most unsatisfactory (to put it at its very lowest) that no evidence was put in to explain just what had happened and why. As matters stand, I regard there as having been a misuse of the English court process in this regard.

[71]I add that, some weeks after the hearing was concluded, Mr Cooper saw fit to send to the court (without prior notification to or consent of the court) lengthy further submissions in a 17 page document in support of the Appellant’s case. This should not have been done. I make clear that that document has had no bearing on the outcome of this case.

[72]In the result I too would allow the appeal. This is not a case for remission, under s.104 (1) (b), given all the circumstances. The Appellant must therefore be discharged and the order for extradition quashed. I stress that this is in the very unusual circumstances, and by reference to the particular facts, of this particular case.