Individual Application

The Facts

On 21 March 2017, the Azerbaijani authorities issued a Red Notice requesting that the applicant, a national of Azerbaijan, be extradited. The applicant was arrested on 27 December 2017 by the competent teams of the General Directorate of Security. The Criminal Judgeship of Peace issued an order of temporary detention for 40 days for the purpose of extradition to Azerbaijan, and the appeal lodged against this judgment was dismissed. The applicant's appeal against her continued detention on the grounds that the maximum period of 40 days provided for in Law No. 6706 on International Judicial Cooperation in Criminal Matters and European Convention on Extradition had expired was dismissed by the High Criminal Court.

At the hearing held on 1 January 2018, it was decided that the applicant was admissible for extradition and that her detention would proceed until the finalisation of the extradition proceedings. The applicant's appeal against the interim decision on the continuation of her detention was dismissed on the grounds that the decision was in accordance with procedure and law. As a result, the applicant lodged her first individual application. Following the judgment of the Court of Cassation which upheld the appeal against the decision on the admissibility of the extradition request, the applicant lodged a second individual application. The applicant's appeal against the continuation of her detention was also rejected. Given that the Ministry of the Interior and the Ministry of Foreign Affairs, which were consulted according to the relevant law, did not provide a negative opinion, the Presidential Decree dated 20 December 2018 approved the applicant's extradition to Azerbaijan. The applicant was surrendered to the Azerbaijani authorities on 16 February 2019.

The Applicants’ Allegations

The applicant maintained that her right to personal liberty and security had been violated due to the unlawfulness of the detention in extradition proceedings.

The Court’s Assessment

In the present case, the applicant was not arrested in the context of a criminal investigation or trial conducted on the grounds that she had been accused of committing a criminal offence. The detention of the applicant is a measure adopted in the context of proceedings to establish whether or not she should be extradited at the request of another State in respect of an offence allegedly committed in that other State. The aim is to ensure that the extradition procedure is carried out properly. There are therefore significant differences in purpose and nature between arrest on the basis of a criminal charge and arrest in the course of extradition proceedings. The Court's examination of the request for extradition does not amount to a judgment on the evidence adduced or on whether the offence proved is established or not.

On the other hand, the difficulties in determining and assessing the existence of a strong indications of suspicion regarding a criminal offence, especially in relation to an offence committed in a foreign country, are evident, and it should therefore be recognised that the discretionary power of the courts of first instance in this regard is considerably wider than the discretionary power of the criminal charge. In this respect, the Constitutional Court may review this margin of appreciation in the examination of individual applications only if there exist exceptional circumstances necessitating an assessment different from that made by the judicial authorities with regard to the conditions of detention. At this point, within the framework of the extradition document, the requirement of strong criminal suspicion and the grounds for arrest can be assessed.

In the present case, there is no ground for disregarding the findings of strong suspicion of a criminal offence in the decision on provisional arrest. The decision to proceed with the applicant's detention was based on the nature and quality of the offence, the state of evidence and the gravity of the sanction prescribed for the offence. In this respect, it should be noted that the applicant was arrested in accordance with the conditions of detention laid down by law. It is therefore reasonable to conclude that the applicant's detention was lawful and that she was arrested in accordance with the procedure prescribed by law.

On the other hand, it is crucial to determine whether there is a legitimate ground 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 procedure was carried out in a reliable manner. It is therefore concluded that the detention of the applicant bears a legitimate purpose.

It is also required to establish whether the measure of pre-trial detention imposed on the applicant was proportionate and, in this context, whether the extradition process was carried out with due diligence. It would also be assessed whether the period of detention, irrespective of the duration of the procedure, exceeds the reasonable time which is required to fulfil the objective pursued. In this regard, when assessing the reasonableness of the duration of the extradition proceedings which form the grounds for detention, it will be considered whether the authorities remained inactive by failing to exercise due diligence and whether the applicant's attitude and behaviour contributed to the prolongation of the process. In determining the degree of diligence to be exercised, the importance of the form of extradition should not be disregarded. Unlike extradition for the purpose of execution of a sentence, extradition for the purpose of bringing the suspect to trial in the requesting State, as in the present case, presupposes the innocence of the person arrested during the criminal proceedings. More precisely, at this stage, the possibility of exercising the right of defence during the criminal proceedings in order to prove the innocence of this person is very limited. It is not possible for the requested State to examine the merits of the case. For these reasons, the State to which extradition is requested must exercise the utmost care to protect the rights of the person concerned, to ensure that the extradition procedure is conducted in an appropriate manner and to ensure that the person is tried within a reasonable time.

In the present case, the period of detention for extradition purposes (from 27 December 2017 to 16 February 2019) is 1 year, 1 month and 20 days. The extradition proceedings lasted 2 months at the first instance stage and 3 months at the Court of Cassation stage. It should be noted that during the proceedings conducted by the Court of First Instance, a hearing was held to provide the applicant with the opportunity to make her defence. The only hearing that was held resulted in the approval of the applicant's request for extradition. The Court of Cassation finalised the appeal against this decision within a period of 3 months in accordance with the law. Accordingly, it was not possible to establish that there was any undue delay or negligence throughout the extradition proceedings.

Nevertheless, it cannot be concluded that the 7-month period between 3 July 2018, when the Ministry was informed that the decision was finalised, and 16 February 2019, when the applicant was surrendered, was conducted with diligence. Following the judgment of the High Criminal Court that the extradition request is admissible by finding that there is no obstacle to extradition, the fulfilment of this decision depends on the approval of the President of the Republic. Article 19 of Law No. 6706 stipulates that the opinion of the Ministry of Foreign Affairs and the Ministry of Interior and the proposal of the Minister of Justice are required in this process. It is beyond doubt that the fulfilment of these bureaucratic procedures will take time. However, it is not apparent from the files as to why it took 5 months for the High Criminal Court to decide whether the applicant should be surrendered to the requesting state or not, after finding that there is no legal obstacle to extradition and deciding that the extradition request is admissible. The Ministry of Justice has not provided any explanation regarding this matter.

Besides, in this process, pursuant to paragraph (2) of Article 16 of Law No. 6706, the detention status must be examined by the high criminal court for a period of thirty days at the latest. In the present case, this provision was not complied with and the applicant's detention was not addressed with due diligence. Although it is acceptable to acknowledge that there were some formalities in the period from the approval of the extradition to the surrender so as to determine the appropriate place and date for the surrender and the officials to deliver and claim the surrender, it is concluded that the period of 2 months from the approval stage to the surrender was not reasonable, considering that the applicant remained in detention during this period. Although the applicant requested a postponement of the surrender during this period, it is observed that this request did not have any impact on the postponement of the surrender.

In conclusion, 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, this issue has been clarified by including the following explanation in the preamble of this article: "One of the problems that can be encountered in practice is that, despite the court's decision on the admissibility of the extradition request, the court may release the person whose extradition is requested under judicial control, the person may flee outside Turkey during the ongoing extradition process, and therefore the extradition request remains inconclusive. However, considering 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 occupation, it will be at the discretion of the court to apply other measures other than arrest." Although it may be necessary to resort to arrest at the first stage of the extradition procedure in order to prevent the person concerned from absconding, it is essential to consider judicial control measures at a later stage, taking into account the personal situation of the applicant in accordance with the principle of proportionality. In the present case, although the applicant has repeatedly stated in her petitions for release and objections to detention that she has been in Turkey since 2001, that she works in Türkiye as a registered employee of the Social Security Institution, that she has no criminal record to date, and that she lives lawfully at a fixed residence address with her 11-year-old daughter who studies in Türkiye, it is found that the judicial control measures were not sufficiently taken into account by the courts of first instance and the reasons why these measures would be insufficient were not justified.

Therefore, given the nature of the extradition proceedings initiated for the purpose of prosecuting the applicant in a third State and the lack of justification for the delays by the Turkish authorities, the applicant's detention for approximately one year and two months was unlawful.

Consequently, the Court has found a violation of the right to personal liberty and security.