Events
A red bulletin was issued on 21/3/2017 by the Azerbaijani authorities about the applicant, who is a citizen of Azerbaijan, for extradition to the country. The applicant was apprehended by the relevant teams of the General Directorate of Security on 27/12/2017. The magistrate’s office decided that the applicant should be detained for a temporary period of 40 days in order to be extradited to Azerbaijan, and the appeal against this decision was rejected. Stating that the maximum detention period of 40 days has expired in accordance with the Law on International Judicial Cooperation on Criminal Matters No. 6706 and the European Convention on the Extradition of Criminals (SIDAS), the applicant’s appeals regarding the continuation of his detention have been rejected by the High Criminal Court.
at the hearing held on 1/2/2018, it was decided that the applicant was extraditable to his country, and that the applicant’s detention should continue until the extradition process is concluded. The applicant’s objection to the interim decision on the continuation of detention with the verdict was rejected on the grounds that the Decisionis in accordance with the procedure and the law. The applicant then made his first individual application. After the Supreme Court, which examined the appeal against the decision that the request for a refund was acceptable, upheld the decision, the applicant made his second individual application. The applicant’s objection to continued detention was also rejected. The relevant law, consultants, interior and foreign ministries of the presidency to report a negative opinion of the applicant’s extradition to Azerbaijan dated 20/12/2018 found to comply with the decision. The applicant was handed over to the Azerbaijani authorities on 16/2/2019.
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The applicant claimed that his right to personal freedom and security had been violated due to the fact that the arrest in the extradition proceedings was not legal.
Evaluation of the Court
In the concrete case, the applicant was not arrested as part of a criminal investigation or trial conducted on suspicion of committing a crime. The applicant’s arrest is a measure applied to during the trial whether extradition should be decided upon the request of the country due to the crime allegedly committed in another country. Here there is an aim to ensure that the process of extradition of criminals is carried out in a healthy manner. Therefore, there are significant differences in purpose and nature between the arrest related to the criminal Decriminalization and the arrest measure applied during the extradition proceedings. Because the examination that the court will conduct regarding the extradition request is not a trial that deals with the evaluation of evidence and the determination of the nature of the crime.
On the other hand, there are difficulties in determining and evaluating the existence of a strong suspicion of a crime, especially in terms of a crime committed in a foreign country, and therefore it is necessary to recognize that the range of discretion of the courts of cassation in this regard is quite wide compared to keeping it connected to the criminal December. In this respect, the supervision of this area of discretion by the Constitutional Court in the examination of individual applications may only be in question if there are exceptional circumstances that make it necessary to make an assessment different from the assessments made by the judicial authorities in relation to the conditions of arrest. At this point, the conditions for a strong suspicion of a crime and the reasons for the arrest can also be considered within the framework of the submitted extradition document.
In the concrete case, there is no situation that would require separating from the findings that there is a strong suspicion of a crime in the temporary arrest decision. When deciding on the continuation of the applicant’s detention, the continuation of the detention was decided based on the nature and nature of the crime, the state of evidence, and the weight of the sanction provided for for the crime. In this respect, it is necessary to accept that the applicant has been arrested in accordance with the arrest conditions provided for in the law. In this aspect, it is possible to say that there is a legal basis for the applicant’s detention and that he is being held in accordance with the procedure provided for in the law.
On the other hand, it is necessary to determine whether there is a legitimate purpose for holding the applicant. Article 19 of the Constitution. in its article, the detention of a person about whom a decision has been made to return is provided for as a legitimate reason in terms of limiting the right to freedom and security of the person. The applicant was also held in order to ensure that the extradition process is carried out in a healthy manner. Therefore, it was concluded that the applicant’s detention had a legitimate purpose.
It is also necessary to determine whether the arrest measure against the applicant is metered out and whether the extradition process is carried out carefully in this context. It will also be assessed whether the period of detention, regardless of the duration of the procedure, has exceeded the reasonable period necessary to achieve the pursued goal. In this context, in assessing whether the duration of the refund procedures that constitute the basis for retention is reasonable, it will be examined whether the authorities remained inactive without taking care and whether the applicant’s attitude and behavior caused the process to be prolonged. The importance of the form of return should also not be underestimated to determine the degree of care that needs to be taken. Unlike extradition for the execution of a sentence, as in a concrete case, the person who is detained is considered innocent while the criminal trial is underway for extradition to be carried out so that the state requesting extradition can prosecute the suspect. More precisely, at this stage, the possibility of exercising the right of defense during a criminal trial to prove the innocence of this person is very limited. It is not possible for the state that is asked to extradite the person who is a suspect to examine the merits of the case. For these reasons, it is necessary to take serious care of the protection of the rights of the person concerned, the proper functioning of the extradition procedure, and the state requesting extradition in order for the person to be tried within an appropriate period of time.
The period of detention (from 27/12/2017 to 16/2/2019), which is carried out for extradition purposes in a concrete case, is 1 year, 1 month and 20 days. It is seen that the extradition proceedings take 2 months at the first instance stage and 3 months at the Supreme Court stage. It is seen that during the trial process conducted by the court of first instance, a hearing was held for the applicant to make his defense. As a result of the single hearing, it was decided to accept the applicant’s request for a refund. The Supreme Court also concluded the appeal against this decision within a 3-month period in accordance with the law. In this aspect, it has not been determined that there was a delay and sloppiness in the extradition proceedings process.
However, it cannot be said that the 7-month period from 3/7/2018, when the information that the decision was finalized, was sent to the Ministry, to 16/2/2019, when the applicant was handed over, was carried out carefully. After the Heavy Criminal Court has determined that there is no obstacle to extradition and decided that the extradition request is acceptable, it is up to the President’s approval whether this decision will be fulfilled. In addition, Article 19 of Law No. 6706. according to the article, it is necessary to obtain the opinion of the Ministries of Foreign Affairs and Internal Affairs and the proposal of the Minister of Justice in this process. There is no doubt that it will take time to carry out these bureaucratic operations. However, after the Heavy Criminal Court determined that there was no legal obstacle to extradition and decided that the extradition request was acceptable, it is not clear from the file why this stage, in which the applicant will make a choice about whether to hand over to the requesting state, took 5 months. The Ministry of Justice has also not made a statement on this issue.
On the other hand, in this process, 16 of the Law No. 6706. in accordance with paragraph (2) of the article, the detention situation should be examined by the criminal court no later than thirty-six days. In the concrete case, this provision was not complied with and the applicant’s detention was not approached with the necessary care. Although it can be accepted that there are some formalities in the process from the approval of the extradition to the delivery in order to determine the appropriate place, date, delivery and delivery officers for the delivery, considering that the applicant’s detention continues in this process, it has been concluded that the 2-month period from the approval stage to delivery is not reasonable. In this process, if the applicant has requested a postponement of the delivery, it is seen that this request has no effect on the extension of the delivery.
Finally, Article 16 of the Law No. 6706. in its article, Law No. 5271 is referred to in terms of protection measures that can be applied during the extradition process. Therefore, it is also possible to make a judicial control decision about the applicant instead of arrest. Indeed, in the justification of this article, “despite the decision of the court that the claim for refund is acceptable, release the person named to be reclaimed under the control of ongoing and therefore the person in the extradition process the refund request is no escape outside the UK remain subject is one of the problems that can be encountered in practice. However, taking into account the person’s strong social and economic ties, such as having resided in Turkey for a long time and having a certain job, it will also be at the discretion of the court to resort to other measures other than arrest.”this issue has been clarified by giving an explanation in the form of “. Ongoing extradition to be reclaimed in order to prevent the escape of the person involved in the process in the first phase in the later stage if it is needed to be consulted on measures to arrest, in accordance with the principle of proportionality consideration of the applicant’s personal situation, the consideration of judicial control measures is essential. The applicant in the concrete case; evacuation and detention in the appeal petition with the Social Security Authority that exists in Turkey since 2001 and working in Turkey as registered, no criminal record, that is not so far, you have been studying in Turkey, the 11-year-old daughter, despite repeatedly stating that you live with a hard depending on the Laws degrees at the residence of the judicial control measures had been taken by the court and not the cause of these measures are not justified, it is observed that the matters will remain inadequate.
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.
The Constitutional Court has decided that the right to freedom and security of the person has not been violated on the grounds described, has not been violated.
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