Kaderli v Chief Public Prosecutors Office of Gebze, Turkey

Permission to appeal in an extradition case should be granted where a proposed ground is reasonably arguable on the material available. Permission may be limited, and an inadequately articulated but potentially significant point may be adjourned for determination on a rolled-up basis at the substantive appeal. A documented inconsistency in the treatment of co-defendants may provide a reasonably arguable case of a flagrant denial of a fair trial under Article 6 ECHR, with consequential implications under Article 5. A section 81 argument based on an alleged refusal to pay a bribe is parasitic on establishing the underlying corruption risk. For Article 3 and oppression arguments, the appellate court should respect the primary judge’s anxious evaluation unless a realistic prospect of overturning it is shown.

The appellant sought renewed permission to appeal against the District Judge’s decision of 16 March 2020 sending Turkey’s extradition request to the Home Secretary, following the refusal of permission on paper by Johnson J. Extradition was ordered on 12 May 2020.

The proposed grounds concerned Articles 5 and 6 ECHR and section 87 of the Extradition Act 2003; section 81; section 85 and trial in absentia; section 91 and oppression based on mental health; and Article 3 ECHR based on prison conditions. The appellant also sought to adduce fresh evidence.

1. Outcome. Permission to appeal was granted on the section 87 ground concerning Articles 5 and 6 ECHR, and on the section 81 ground. Permission on section 85 was adjourned for consideration on a rolled-up basis at the substantive hearing. Permission on section 91 and Article 3 was refused.
2. The Turkish documents appeared to record that the complainant was over 15 and had withdrawn her complaints, leading to acquittals of two defendants, while the appellant was convicted in relation to the following day and the complainant was described as a minor. The apparent inconsistency, including the Respondent’s explanation that withdrawal had no effect because the complainant was under 15, raised a reasonably arguable question whether the trial process had been fundamentally unfair or so egregious as to nullify the proceedings. It also justified allowing the corruption-related arguments to proceed. General concerns about judicial corruption alone would not establish an Article 6 breach.
3. The section 81 argument, that refusing to pay a bribe amounted to imputed political opinion and made extradition persecutory, depended entirely on establishing the corruption aspect of the Articles 5 and 6 case.
4. The section 85 concern arose from apparently simultaneous hearings in different Turkish courts, one involving the appellant and appointment of his lawyer and another involving the victim’s evidence. The substantive court should decide whether the point could fairly be relied upon and, if so, whether any right of retrial existed.
5. The District Judge’s evaluation of the mental-health evidence and prison assurances, supported by Yilmaz [2019] EWHC 1939 (Admin), disclosed no reasonably arguable challenge. There was no realistic prospect of overturning the assessment that neither oppression nor a substantial Article 3 real risk had been established.
6. The fresh-evidence application was refused insofar as it related to refused grounds, but adjourned for the substantive appeal in relation to the other grounds. There was no order as to costs, save for detailed assessment of publicly funded costs.

• District Judge. On 16 March 2020, the District Judge sent the extradition request to the Home Secretary for consideration.
• High Court. Johnson J refused permission to appeal on the papers.
• High Court (Administrative Court). Renewed permission was granted in part, with the section 85 issue adjourned to the substantive appeal.