Violation Of the Right To Personal Liberty And Security Due To The Unlawfulness Of Detention In Extradition Proceedings
Events
A red notice was issued by the Azerbaijani authorities on 21/3/2017 for the extradition of the applicant, a citizen of Azerbaijan. The applicant was arrested by the relevant teams of the General Directorate of Security on 27/12/2017. The criminal court of peace ruled that the applicant be temporarily detained for 40 days for the purpose of extradition to Azerbaijan, and the objection to this decision was rejected. Law no. 6706 on International Judicial Co-operation in Criminal Matters and the European Convention on Extradition of Offenders (SIDAS), the applicant’s objections to the continuation of his detention, stating that the maximum detention period of 40 days had expired, were rejected by the Assize Court.
At the hearing held on 1/2/2018, it was decided that the applicant was extraditable and that the applicant’s detention should continue until the extradition process was finalised. The applicant’s objection to the interim decision on the continuation of detention together with the judgement was rejected on the grounds that the decision was in accordance with the procedure and the law. The applicant then lodged his first individual application.
After the Court of Cassation, which examined the appeal against the decision on the admissibility of the extradition request, upheld the decision, the applicant filed his second individual application. The applicant’s objection to the continuation of his detention was also rejected. As the Ministries of Interior and Foreign Affairs, whose opinions were consulted in accordance with the relevant law, did not express a negative opinion, the applicant’s extradition to Azerbaijan was approved by the Presidential Decision dated 20/12/2018. The applicant was handed over to the Azerbaijani authorities on 16/2/2019.
Allegations
The applicant claimed that his right to liberty and security of person was violated due to the unlawfulness of the detention in the extradition proceedings.
The Court’s Assessment
In the concrete case, the applicant was not arrested in the context of a criminal investigation or trial conducted on suspicion of having committed an offence. The applicant’s detention is a measure used during the proceedings to determine whether or not to order his extradition upon the request of another country for an offence he is alleged to have committed in another country. The aim here is to ensure the proper conduct of the extradition process. Therefore, there are significant differences in terms of purpose and quality between the arrest based on a criminal charge and the arrest measure applied during extradition proceedings. This is because the court’s examination of the extradition request does not have the characteristics of a judgement that focuses on the evaluation of evidence and the determination of the offence.
On the other hand, the difficulties of determining and assessing the existence of strong criminal suspicion, especially in respect of an offence committed in a foreign country, are obvious, and for this reason, it must be accepted that the discretionary range of the courts of first instance in this regard is quite wide compared to detention on criminal charge. In this respect, the Constitutional Court may review this margin of appreciation in the individual application examination only in the presence of exceptional circumstances that necessitate a different evaluation from the evaluations made by the judicial authorities regarding the conditions of detention. At this point, the condition of strong criminal suspicion and the reasons for arrest can also be evaluated within the framework of the extradition document sent.
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In the concrete case, there is no situation that requires a departure from the determinations regarding the existence of strong criminal suspicion in the provisional detention decision. While deciding on the continuation of the applicant’s detention, it was decided to continue the detention based on the nature and nature of the offence, the state of evidence, and the severity of the sanction foreseen for the offence. In this respect, it must be accepted that the applicant was detained in compliance with the conditions of detention stipulated in the law. In this respect, it is possible to say that the applicant’s detention had a legal basis and that he was detained in accordance with the procedure stipulated in the law.
On the other hand, it is necessary to determine whether there is a legitimate purpose for the detention of the applicant. Article 19 of the Constitution stipulates that the detention of a person against whom an extradition order has been issued is a legitimate reason for the restriction of the right to personal liberty and security. The applicant was detained in order to ensure that the extradition process is carried out in a healthy manner. Therefore, it was concluded that the detention of the applicant had a legitimate purpose.
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It is also necessary to determine whether the detention measure against the applicant is proportionate and, in this context, whether the extradition process is carried out diligently. It will also be assessed whether the duration of detention, irrespective of the duration of the procedure, exceeds the reasonable time necessary to achieve the objective pursued. In this context, in assessing the reasonableness of the duration of the return proceedings which form the basis for detention, it will be examined whether the authorities failed to act with due diligence and whether the applicant’s attitude and behaviour led to the prolongation of the process.
The importance of the form of extradition in determining the degree of due diligence to be exercised should not be overlooked. Unlike extradition for the execution of a sentence, in the case of extradition for the extradition requesting State to try the suspect, as in the concrete case, the detained person is deemed innocent while the criminal proceedings are ongoing.
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More precisely, at this stage, the possibility to exercise the right of defence during the criminal proceedings to prove the innocence of this person is very limited. It is not possible for the State requested to extradite the suspected person to examine the merits of the case. For these reasons, the State to which extradition is requested must take serious care to protect the rights of the person concerned, to ensure the proper functioning of the extradition procedure and to ensure that the person is tried within a reasonable time.
In the concrete case, the period of detention for extradition (from 27/12/2017 to 16/2/2019) was 1 year, 1 month and 20 days. It is observed that the extradition proceedings took 2 months at the first instance stage and 3 months at the Court of Cassation stage. It is seen that a hearing was held for the applicant to make his defence during the proceedings conducted by the first instance court. As a result of the only hearing held, it was decided to accept the applicant’s extradition request. The Court of Cassation finalised the appeal against this decision within a period of 3 months in accordance with the law. In this respect, it could not be determined that there was any delay or carelessness in the extradition proceedings.
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However, it cannot be said that the 7-month period from 3/7/2018, when the information that the decision was finalised was sent to the Ministry, to 16/2/2019, when the applicant was handed over, was carried out diligently. After the Assize Court determines that there is no obstacle to extradition and decides that the extradition request is admissible, the fulfilment of this decision depends on the approval of the President of the Republic. Moreover, according to Article 19 of Law No. 6706, the opinion of the Ministries of Foreign Affairs and Interior and the proposal of the Minister of Justice are required in this process.
There is no doubt that these bureaucratic procedures will take time. However, it is not clear from the file why this stage, in which the applicant will make a choice as to whether or not to be handed over to the requesting state after the Serious Criminal Court determines that there is no legal obstacle to extradition and decides that the extradition request is admissible, took 5 months. The Ministry of Justice has not made any explanation on this issue.
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On the other hand, in this process, pursuant to paragraph (2) of Article 16 of Law No. 6706, the detention status must be examined by the heavy criminal court for periods of thirty days at the latest. In the concrete case, this provision was not complied with and the applicant’s detention was not handled with due diligence. Although it can be accepted that there were some formalities in the period from the approval of the extradition to the delivery, in order to determine the appropriate place, date, delivery and pick-up officials for the delivery, considering that the applicant’s detention continued during this period, it is concluded that the 2-month period from the approval stage to the delivery was not reasonable. Although the applicant requested a postponement of the handover during this period, it is seen that this request had no effect on the prolongation of the handover.
Finally, Article 16 of Law No. 6706 refers to Law No. 5271 in terms of the protection measures that may be applied during the extradition process. Therefore, it is also possible to issue a judicial control decision instead of arrest. As a matter of fact, in the justification of this article, it is stated that “Despite the court’s decision that the extradition request is admissible, it is one of the problems that can be encountered in practice that the court releases the person whose extradition is requested under judicial control, the person flees out of Turkey during the ongoing extradition process and therefore the extradition request remains unsubstantiated.
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However, by taking into account the strong social and economic ties of the person, such as the fact that the person has been residing in Turkey for a long time and has a certain job, it will be at the discretion of the court to apply other measures other than arrest.” Although it may be necessary to resort to the arrest measure at the first stage in order to prevent the person concerned from escaping during the ongoing extradition process, it is essential to consider judicial control measures in the later stage, taking into account the personal situation of the applicant in accordance with the principle of proportionality.
In the concrete case, although the applicant repeatedly stated in his petitions for release and objection to detention that he has been in Turkey since 2001, that he has been working in Turkey as a registered employee of the Social Security Institution, that he has no criminal record to date, that he lives lawfully at a fixed address with his 11-year-old daughter who is studying in Turkey, it is observed that the judicial control measures were not sufficiently taken into consideration by the courts of first instance and the reasons why these measures would be insufficient were not justified.
Therefore, considering the nature of the extradition proceedings initiated for the purpose of prosecuting the applicant in a third state and the fact that the delays were not justified by the Turkish authorities, it was concluded that the applicant’s detention of approximately 1 year and 2 months was not in accordance with the law.
For the reasons explained above, the Constitutional Court held that there had been no violation of the right to liberty and security of person.
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