Konuksever v The Government of Turkey

Proof that an appellant was previously tortured does not automatically prevent extradition. It is, however, a serious factor requiring detailed and careful assessment of future risk. The court must consider whether the circumstances giving rise to the earlier torture may recur, including risks from fellow prisoners where the appellant’s ethnicity and past suspected political association may become known. A finding that the appellant is generally unreliable does not prevent the court accepting objective evidence that torture occurred. Where the requesting state has made materially misleading representations about limitation periods and then reversed its position without explanation, the conduct may amount to an abuse of process and engage Article 6, although that issue need not be finally determined if extradition is already barred by Article 3.

The appellant, a Turkish national of Kurdish ethnicity, appealed under section 103 of the Extradition Act 2003 against a District Judge’s decision sending his case to the Secretary of State. The Secretary of State ordered extradition to Turkey in November 2011.

The appellant alleged that he had been tortured by Turkish anti-terrorist police in 2000. The District Judge rejected much of his evidence as unreliable but accepted, principally on medical and expert evidence, that he had been tortured. He nevertheless concluded that there was no real risk of ill-treatment on return because the Turkish authorities had concluded that the appellant had no PKK affiliation. The appeal raised the adequacy of that future-risk assessment and whether subsequent procedural events concerning the expiry and revival of the Turkish sentence amounted to an abuse of process.

1. Appeal allowed. The District Judge’s order was quashed and the appellant was discharged. The case was not remitted because of the particular circumstances and the passage of time.
2. The District Judge was entitled to find the appellant generally unreliable and nevertheless to find, on objective medical and expert evidence, that state actors had tortured him. Such a finding does not automatically establish an asylum claim or bar extradition, but it requires especially careful consideration of future risk. Paragraph 339K of the Immigration Rules reflects the principle that past persecution or serious harm is a serious indication of future risk unless there are good reasons to conclude that it will not be repeated.
3. The District Judge’s conclusion that there was no real risk of Article 3 ill-treatment on return was inadequately reasoned and wrong. He relied on Professor Bowring’s evidence in accepting that torture had occurred but did not adequately explain why he rejected the evidence concerning future risk, particularly the risk of inter-prisoner violence. The appellant would be imprisoned in a region where Kurds were a minority, and the earlier suspicion of PKK involvement or visible torture scars might create a risk even if state actors no longer regarded him as a PKK sympathiser.
4. The finding that the appellant had been tortured gave rise to a strong need for caution. The sensible inference was that the earlier treatment involved ethnic discrimination, although the District Judge was entitled to conclude that the present extradition request was not itself discriminatory.
5. The procedural history also gave rise to serious concern under Article 6. The English court had been given categorical information that the Turkish limitation period was final and could not be extended. After the period expired and the sentence was revoked, the Turkish authorities obtained reversal of that decision without prior notice. This was capable of amounting to an abuse of process, although the court did not finally determine that it had occurred.

1. High Court (Administrative Court): allowed the appeal from the District Judge, quashed the extradition order and ordered the appellant’s discharge.
2. District Judge: following the hearing on 1 September 2011, rejected the appellant’s objections and sent the case to the Secretary of State. The Secretary of State ordered extradition on 14 November 2011.