Ozen v Republic of Germany

In extradition proceedings, a claimant must establish a real risk that the requesting state will fail to apply its own legal safeguards and thereby expose him to a Convention violation. A general possibility of unlawful onward deportation is insufficient where the requesting state provides effective legal protection and a careful appeal process. The court may assess the practical operation of those safeguards, including the likelihood that relevant personal and ethnic circumstances will be considered. A stronger case that ill-treatment would occur may itself make it more likely that the requesting state will recognise and address the risk before deportation. The application therefore fails where the alleged chain of events depends on highly unlikely disregard of domestic law by the requesting state’s authorities.

The applicant, a Turkish citizen of Kurdish extraction, had been committed by the Bow Street magistrates under the Extradition Act 1989 to await the Secretary of State’s decision on his return to Germany. He argued that, after completing his German sentence, he faced a real risk of deportation to Turkey, where he might suffer treatment contrary to Articles 3 and 8 of the European Convention on Human Rights.

The applicant relied on his brother’s experience and on Yilmaz v Germany. The central issue was whether there was a real risk that Germany’s courts and authorities would disregard the safeguards governing deportation and onward removal.

1. Application dismissed. The court proceeded on the construction of section 6(1)(d) of the Extradition Act 1989 most favourable to the applicant, while expressly leaving that construction undecided.
2. Under section 47(1) number 1 of the German Foreigners Act, the applicant would on the face of the provision be liable to expulsion after the relevant conviction. Section 51(2), together with the Convention, provided clear safeguards against removal to a state where life or freedom was threatened and permitted consideration of removal to a third state.
3. The court found no real risk that the German authorities or courts would disregard those safeguards. The German administrative court structure carefully considered the facts, personal circumstances and family situation of each deportee. The applicant’s Kurdish ethnicity would be a relevant factor in that assessment.
4. Yilmaz v Germany showed that deportation itself under section 47 had withstood Article 8 scrutiny, although an indefinite exclusion order had been disproportionate on the facts of that case. The present facts were materially different. Karadag v Germany illustrated the multi-tiered administrative and judicial scrutiny available in Germany.
5. The applicant accepted that there was no risk of mistreatment while in German custody. Although the court accepted, for present purposes, the genuineness of his brother’s fears, the stronger the case for a risk of mistreatment, the more likely it was that the German authorities would identify and address that risk when considering deportation.
6. The alleged sequence of unlawful deportation, failure to offer an alternative destination and consequent Article 3 mistreatment was therefore highly unlikely. The application for habeas corpus failed. No order for costs was made.

The judgment was a first-instance decision on an application following committal proceedings before the Bow Street Magistrates Court. No appeal decision is stated.