Yilmaz & Anor v Government of Turkey

In an extradition case involving alleged prison conditions, a Council of Europe member state benefits from a presumption of compliance with Article 3 of the ECHR. The requested person must provide clear, cogent and compelling evidence of a real risk of inhuman or degrading treatment to displace it. An international consensus is one way of doing so, but it is not essential.

Before deciding whether extradition would breach Article 3, the court may seek objective, reliable, specific and properly updated information about the detention conditions in which the person would be held. There is no separate evidential threshold requiring a prima facie breach before further information or assurances may be requested.

Veli Yilmaz and Erkan Yilmaz were sought by Turkey for prosecution for serious alleged offences. The District Judge rejected challenges based on extraneous considerations, Article 6 and Article 3 of the ECHR, and sent the cases to the Secretary of State. Extradition orders were subsequently made.

Permission to appeal was granted only on the Article 3 prison-conditions ground. The Divisional Court considered fresh evidence, including the final report of the UN Special Rapporteur on Torture and supplementary evidence concerning prisons in Bursa. The central issue was whether the available evidence was sufficient to determine whether extradition would expose either appellant to a real risk of treatment contrary to Article 3, or whether further information from Turkey was required.

1. Presumption and burden. Turkey, as a member of the Council of Europe, was entitled to a presumption that it would comply with the ECHR. The burden lay on the appellants to displace that presumption by clear, cogent and compelling evidence establishing a real risk of Article 3 ill-treatment. The evidence need not establish that ill-treatment would occur as a certainty.
2. Evidence required. An international consensus concerning a real risk of Article 3 treatment was one means of rebutting the presumption, but it was not the only means. The court had to consider objective, reliable, specific and properly updated information, including information about the particular conditions in which the requested persons would be detained. The absence of a pilot judgment or published report from the CPT did not determine the issue.
3. Further information. The court followed the approach in Purcell v Public Prosecutor of Antwerp, Belgium [2017] EWHC 1981 (Admin). There was no evidential threshold requiring the appellants first to establish a prima facie breach of Article 3 before the court could seek further information. The court needed further information about the institutions in which each appellant would be held, personal space, detention conditions and any assurances Turkey was prepared to give.
4. Fresh evidence. The final report of the UN Special Rapporteur and Professor Morgan’s supplementary evidence were formally admitted. Their late admission was justified by their significance, the passage of time, the lack of a response from Turkey and the fact that the information was substantially within the requesting state’s knowledge.
5. Disposition. The court adjourned the appeals. Turkey was directed to answer, within 42 days, questions concerning the institutions in which each appellant would be detained before trial and after conviction, whether at least three square metres of personal space would be provided, the detention regime and any assurances. The parties were to file further written submissions within 28 days after the answers or expiry of the time for answering. The court would then decide whether a further oral hearing was required.

1. Westminster Magistrates’ Court. District Judge Vanessa Baraitser rejected the appellants’ challenges and sent the cases to the Secretary of State on 20 February 2018.
2. Secretary of State. Extradition orders were made on 17 April 2018.
3. High Court (Administrative Court). Permission to appeal was granted only on the Article 3 prison-conditions issue. The appeals were adjourned pending further information and submissions.