Kaderli v Chief Public Prosecutor's Office of Gebeze, Turkey

In an extradition case based on a conviction warrant, a person alleging that the historic trial was flagrantly unfair must establish that the unfairness occurred. The applicable standard is not whether there is a real risk that the past unfairness occurred. The real-risk test concerns future events, such as future imprisonment following an unfair trial. General evidence of corruption in the requesting state does not establish that corruption affected the particular trial. Under Extradition Act 2003, s. 85, the requesting state must prove to the criminal standard that the person was convicted in his presence, deliberately absented himself, or is entitled to a retrial or equivalent review. Failure to prove deliberate absence from a material hearing requires discharge unless a satisfactory retrial assurance is provided.

The appellant was wanted by Turkey to serve a sentence imposed after his conviction for sexual abuse. A District Judge sent the case to the Secretary of State, who ordered extradition. The appellant appealed under s. 103 of the Extradition Act 2003.

He argued that extradition was barred because his Turkish trial was allegedly tainted by prosecutorial corruption, because he might be punished for refusing a bribe, and because the respondent had not proved that he was convicted in his presence or had deliberately absented himself. The central issues were the evidential test for an alleged historic flagrant breach of Article 6 ECHR and the application of s. 85 to conflicting evidence about attendance at the hearing where the principal witness gave evidence.

1. Grounds 1 and 2. The appeal failed on the alleged corruption and political-opinion grounds. Where extradition is resisted on the basis that a completed trial was flagrantly unfair, the requested person must establish that the unfairness occurred. The real-risk test is ordinarily forward-looking and does not replace the ordinary civil standard for determining historic facts. The distinction between factual findings and the later assessment of apparent bias in Porter v Magill [2001] UKHL 67 was material. The immigration approach in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 was inapplicable.
2. The evidence did not establish, even on the alternative real-risk approach, that the alleged bribe had been requested or that systemic corruption affected the appellant’s trial. General evidence that corruption was a problem in Turkey did not establish systemic judicial corruption of the kind considered in Kapri v Lord Advocate [2013] UKSC 48. The differing verdicts were explicable by the different incidents and evidence. The arguments under s. 81 were parasitic on the corruption allegation and therefore failed.
3. Ground 3. Section 85 required the respondent to prove to the criminal standard that the appellant was convicted in his presence, deliberately absented himself, or would be entitled to a retrial or equivalent review. The respondent failed to prove deliberate absence from the hearing at Uskudar on 29 February 2008, where the victim gave evidence. The issue was not whether the appellant had waived an Article 6 right, as in Murtazaliyeva v Russia, but whether the statutory burden had been discharged.
4. The information before the court did not establish that a retrial would be available. Following Grecu v Cornetu Court (Romania) [2017] EWHC 1427 (Admin) and Zelenko v Latvia [2019] EWHC 3840 (Admin), the court granted permission on ground 3 and adjourned the appeal. Turkey was given 28 days to provide an undertaking that the appellant would be offered a retrial and to identify the domestic legal provisions giving effect to it. The appellant could respond within a further 21 days. Final determination was adjourned.

1. High Court (Administrative Court): A District Judge’s decision of 16 March 2020 sent the case to the Secretary of State, who ordered extradition. The High Court granted permission on grounds 1 and 2 and considered ground 3 on a rolled-up basis.
2. High Court (Administrative Court): Permission was granted on ground 3. The appeal was adjourned without a final order to permit Turkey to provide a retrial undertaking and identify the legal basis for it.