extradition averted - Turkish authorities could not answer the Court's questions

Extradition requests from Turkey are highly problematic and this applies not only to supporters of the Gülen movement. According to the case-law of the German Federal Constitutional Court, the higher regional courts - responsible for extradition proceedings - may not declare an extradition admissible if the persecuted person has to expect or serve a sentence that is incompatible with minimum standards of international human rights law or with indispensable constitutional principles.

In general, extradition proceedings with non-member states of the EU in Germany are primarily concerned with the factual clarification required by constitutional law and the depth of reasoning of judicial decisions.

As far as Turkey is concerned, the expected conditions of imprisonment are more than doubtful and it is regularly the case that the persecuted person is accused of a political offence (Article 3 (1) EuAlÜbk, § 6 (1) IRG), which is either directly attributable to state security criminal law (accusation of membership in the PKK) or it is an ostensibly general criminal offence, whereby the extradition request nevertheless pursues a political objective.

It should be clear that extradition cannot be declared admissible if a request for extradition has been made for an offence punishable under general criminal law in order to prosecute or punish a person for political reasons (Art. 3 (2) EuAlÜbK, § 6 (2) IRG), or if the persecuted person does not expect a fair trial in the event of his extradition (Art. 6 MRK).

With regard to the danger of conditions of detention that are contrary to human rights (keyword: overcrowding of prisons), assurances are demanded from the Turkish state in some cases relating to individual cases, which, in my opinion, can hardly resolve concerns in a resilient manner.

Higher Regional Court Cologne, Court's Orders of 01.02.2017 and 08.08.2016 – 6 AuslA 70/16 – 58 - cancellation of a German extradition arrest-warrant based on an extradition-request from Turkey 

Extradition lawyer Dr. Martin Rademacher successfully averted the detention and extradition of a Turkish national. The human rights situation in Turkey is unacceptable and in extradition proceedings we are glad to watch, that German courts are aware of the facts.

Turkey had requested extradition for the execution of a criminal sentence against our client. Two years ago the 72-year-old man of Turkish nationality had been sentenced to a prison sentence of seven and a half years in Turkey for the alleged attempted murder during a private dispute. Despite the international arrest warrant from Turkey the Higher Regional Court in Cologne released our client relatively early from custody but fixed a high bail as a security.

However, there is, as yet, no uniform directive of the judiciary not to acknowledge Turkish arrest warrants at all. It is obvious, nevertheless, that the treatment of individual cases apparently follows a certain pattern. Based on this pattern, the Higher Regional Court in Cologne (ruling from 08.08.2016 - 6 AuslA 70/16 - 58) stated already in August last year that at our request the provisional extradition custody order had been lifted.

In the further course of the proceedings Turkey was asked to provide a detailed statement on its human rights situation, in particular with regard to the conditions of detention in Turkey. After the request was not responded to by the Turkish judiciary, the Court in Cologne set a final deadline for their response. Even after the German Foreign Office had been involved, there was only a blanket reply from Turkey, which simply claimed that the procedure there corresponds to the internationally accepted standards of human rights.

Since the Turkish authorities had sought to avoid answering the Court's questions, the Cologne Higher Regional Court rejected the extradition with the appropriate justification that Turkey has not provided reliable assurances. Is to be added, that it normally is a delicate exercise to judge, whether such assurances can be accepted as relevant facts for the assessment of a risk. Nevertheless the Turkish assurances were clearly insufficient.