Rule of Law

Extradition of offenders

by Murat Demir & İbrahim Yüce

The extradition of suspects or offenders refers to the hand-over of a person, in connection with an offence committed in another country, by a state which is not authorized to try the person to a state which is authorized to do so, so that the offence can be prosecuted or the penalty imposed can be enforced.

The “right of refuge” and the “sovereign rights of states” used to be invoked frequently as grounds for refusing requests for extradition. This approach has now been abandoned and the need for extradition has generally been recognised on a basis of sound legal principles. The legal principles on which the need for extradition is based can be summed up as: “justice” and the “protection of mutual interests”. Extradition makes it possible for a suspect to be tried by his or her natural judge, so that wherever a crime is committed, its perpetrator does not go unpunished. In this way, it acts as a vehicle for making sure that justice is done. In addition, extradition allows states to join forces to prosecute offenders and investigate and prevent crimes. The state which is requested to make the extradition order is able to rid itself of a foreign suspect or offender, and gains a way of providing and protecting order and justice on its own territory.

A little history

Until the 19th century, extradition was an act of government which depended on the condition of reciprocality. In 1833, a law on the extradition of offenders was adopted in Belgium. This law constituted a model for the laws that were subsequently to be adopted by other countries concerning the same issue. Turkey did not adopt specific laws for extradition, but was content to include certain principles in its Penal Code. At the same time, it reached bilateral agreements concerning extradition with a large number of states. Finally, under Law No. 7376 of November 18, 1959, Turkey approved the European Convention on Extradition, which had been adopted by the Council of Europe in 1957, and Turkey became a party to the Convention.

Constitutional prohibition

Currently, the sources of domestic legislation relevant to the extradition of offenders are the final clause of Article 38 of the 1982 Constitution, Article 18 of the Turkish Penal Code, the bilateral agreements on the extradition of offenders reached with various states at various times and the European Convention on Extradition.

Article 38 of the Constitution ends by stating that, “A citizen cannot be returned to a foreign country on account of a crime.” The rule that citizens should not be extradited is an established principle in extradition law. Article 6 (a) of the European Convention also stipulates that parties to the convention shall have the right not to extradite their own citizens.

Exceptional cases

Article 18 of the Penal Code (Law No. 5237) which took effect on June 1, 2005 makes more detailed arrangements for extradition than the relevant article (Article 9) of its predecessor (Law No. 765). The effect has been to ensure parallelism between the Code and the European Convention.

Article 18 sets out a series of exceptions and procedures for the extradition of offenders. The exceptions, in which circumstances the request for extradition cannot be accepted, cover the following cases:

-where the offence on which the request for extradition is based is not an offence under the laws of Turkey;

-where the offence in question is a crime of thought or a political or military crime;

-where the offence has been committed against the security of the Turkish state or to the detriment of the Turkish state, a Turkish citizen or a legal person established in accordance with Turkish law;

-where Turkey has authority to try the offence;

-where the case has been subject to an amnesty or has lapsed due to passage of time;

-where the offender is a Turkish citizen;

-where there are strong grounds for suspicion that the person, if extradited to the state making the request, will be persecuted or punished on account of his or her race, religion, citizenship, appurtenance to a certain social group or political views, or will be subject to torture or mistreatment.

How it works

If a request for extradition is correctly made to Turkey, then the response is given according to the procedures set out in paragraphs 4-8 of Article 18. Upon the receipt by the Turkish authorities of a request for extradition, the criminal (‘ağır ceza’) court in the place in which the person is to be found may decide whether or not the extradition request is acceptable under the terms of Article 18 of the Penal Code and of the international agreements to which Turkey is a party. The same court may also decide to take precautions concerning the person in question or to arrest him or her. The decisions of the court are subject to appeal. If the court decides in favour of extradition, then the Council of Ministers has the discretion to decide whether or not to carry out the order. In the event of extradition, the person may only be tried for the offences on the basis of which the extradition order was given or made to serve the penalty for which he or she has been sentenced.

Bilateral and multilateral accords

The bilateral agreements to which Turkey is a party provide for extradition on a basis of reciprocality by diplomatic means. Generally speaking, the grounds cited in the European Convention on Extradition as justifying the refusal of a request for extradition are also included among the grounds for refusal named in the bilateral accords.

As already noted, Turkey became a party to the Convention in 1959. Article 28 of the Convention states that it takes the place of bilateral accords. If the offence has been committed in the state to which the request for extradition is made, then this state will turn down the request on the basis of Article 7 of the European Convention. In addition, the state receiving the extradition request may refrain from extraditing a person where the offence has been committed in a place which under its own legislation is partially or wholly within its territory or considered a part of it. If the offence has been committed outside the territory both of the state requesting the extradition and of the state from which the extradition is requested, then in principle the request ought to be approved. In such circumstances, however, a request for extradition may be refused if the law of the state receiving the request is conducive to the prosecution of the offence in-country.

Minimum penalty?

Insisting that the offence on the basis of which extradition is requested must be considered an offence in both of the countries concerned, the European Convention differs from the Turkish legislation in specifying, further, that the offence in question must be punishable under the laws of both parties by deprivation of liberty. Where a conviction has occurred or a detention order has been made, the period of punishment must be at least four months. The Convention makes clear that it is up to the authorities in the state receiving the extradition request to determine whether they consider an offence to be political or politically related. Even in the case of ordinary offences – let alone crimes of thought or political or military offences - both the Turkish legislation and the Convention provide for the non-extradition of the suspect where the state receiving the extradition request has substantial grounds to believe that the purpose of the request is to prosecute or punish a person on account of his race, religion, nationality or political opinion.

Making a request

In cases where Turkey requests an extradition, the Prosecutor of the Republic sends to the Ministry of Justice the original or approved copies of the conviction or detention order, accompanied by a report which specifies the date and place of the act which the extradition request relates to and provides information concerning the identity and distinguishing features of the person whose extradition is being requested. These documents are examined by the Ministry’s General Directorate of Penal Affairs. Where deemed appropriate, they are then sent to the Ministry of Foreign Affairs, which carries out its own examination from the point of view of conventions and diplomacy. If the Ministry sees fit, the necessary documents and orders are sent out to the Turkish representative in the country where the person to be extradited is located so that the extradition request can be made.

(DIPLOMAT  -  November 2005  -  Ankara)