The applicant had led Kurdish separatists training and leading a gang of armed terrorists. Warrants for his arrest had been taken out in Turkey. He had lived for many years in Syria but then sought political asylum in Greece, Russia and Italy, none of which countries was prepared to allow him to stay. Ultimately, he achieved a temporary refuge in the home of the Greek Ambassador in Nairobi. He was then tricked into believing that arrangements had been made for him to fly to the Netherlands, where he would be given refuge. Instead, when he got to Nairobi airport he was arrested by Turkish officials and put on a plane to Turkey.
Held: This took place with the agreement of the Kenyan authorities. In Turkey he was tried, convicted and sentenced to death, a sentence which was subsequently commuted. The issue was whether his arrest by the Turkish authorities at Nairobi airport infringed the applicant’s Article 5 rights. Before dealing with the question of jurisdiction the Court considered the principles governing the question of whether the arrest was lawful: ‘The Court accepts that an arrest made by the authorities of one State on the territory of another State, without the consent of the latter, affects the person’s individual rights to security under Article 5 (1).’
Bankovic was distinguished: ‘Directly after he had been handed over by the Kenyan officials to the Turkish officials the applicant was under effective Turkish authority and was therefore brought within the ‘jurisdiction’ of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. The Court considers that the circumstances of the present case are distinguishable from those in the aforementioned Bankovic and Others case, notably in that the applicant was physically forced to return to Turkey by Turkish officials and was subject to their authority and control following his arrest and return to Turkey (see in this respect the aforementioned decisions in the cases of Illich Sanchez Ramirez v France and Freda v Italy).’
The Court then considered whether the acts of the Turkish officials were permissible under international law: ‘The Court must decide in the light of the parties’ arguments whether the applicant’s detention in Kenya resulted from acts of the Turkish officials that violated Kenyan sovereignty and international law (as the applicant has submitted) or from cooperation between the Turkish and Kenyan authorities (as the Government have submitted).’ The Court concluded that the Kenyan authorities had been party to the plan that the Turkish officials should arrest the applicant, which led to the conclusion that his arrest was an exercise of extradition which was not unlawful, so that it did not infringe Article 5.
The court considered the restrictions on the claimants access to his lawyers: ‘However, as stated above . . restrictions may be imposed on an accused’s access to his lawyer if good cause exists. The relevant issue is whether, in the light of the proceedings taken as a whole, the restriction has deprived the accused of a fair hearing.
. . In the present case, the Court accepts . . that the applicant and his lawyers were unable to consult out of hearing of the authorities at any stage. It considers that the inevitable consequence of that restriction, which was imposed during both the preliminary investigation and the trial, was to prevent the applicant from conversing openly with his lawyers and asking them questions that [might prove] important to the preparation of his defence. The rights of the defence were thus significantly affected.
The Court observes in that connection that the applicant had already made statements by the time he conferred with his lawyers and made further statements at hearings before the State Security Court after consulting them. If his defence to the serious charges he was required to answer was to be effective, it was essential that those statements be consistent.
Accordingly, the Court considers that it was necessary for the applicant to be able to speak with his lawyers out of hearing of third parties.
As to the Government’s contention that the supervision of the meetings between the applicant and his lawyers was necessary to ensure the applicant’s security, the Court observes that the lawyers had been retained by the applicant himself and that there was no reason to suspect that they had threatened their client’s life. They were not permitted to see the applicant until they had undergone a series of searches. Mere visual surveillance by the prison officials, accompanied by other measures, would have sufficed to ensure the applicant’s security’.
Consequently, the Court holds that the fact that it was impossible for the applicant to confer with his lawyers out of the hearing of members of the security forces infringed the rights of the defence.’
Citations:
46221/99, [2003] ECHR 125, (2003) 37 EHRR 10, 15 BHRC 297
Links:
Citing:
Cited – Bankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
Cited by:
Cited – Quark Fishing Ltd, Regina (on the Application Of) v Secretary of State for Foreign and Commonwealth Affairs Admn 22-Jul-2003
The respondent had failed to renew the claimant’s license to fish in the South Atlantic for Patagonian Toothfish. The refusal had been found to be unlawful. The claimant now sought damages.
Held: English law does not generally provide a remedy . .
Cited – Regina on the Application of B and others v Secretary of State for the Foreign and Commonwealth Office CA 18-Oct-2004
The applicant children had been detained in immigration camps in Australia. They escaped and sought refuge in the British High Commission in Melbourne and claimed diplomatic asylum. They claimed in damages after being returned to the authorities in . .
Cited – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
See Also – Ocalan v Turkey ECHR 12-May-2005
(Grand Chamber) – The applicant had been detained in Kenya. He had allowed himself to be taken by Kenyan officials to Nairobi airport in the belief that he was free to leave for a destination of his choice, but they took him to an aircraft in which . .
Cited – Bary and Others, Regina (on The Application of) v Secretary of State for Justice and Another Admn 19-Mar-2010
The applicants, incarcerated at Long Lartin pending extradition or deportation, challenged a decision further restricting their movements within the prison. All were unconvicted, and all but one were suspected of terrorist crimes. The changes were . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Brown, Regina v CACD 29-Jul-2015
The claimant, a patient hld at Rampton Hospital faced charges of attempted murder of two nurses. His lwayers had asked for the right to see their client in private, but eth Hospital objected, insisting on the presence of two nurses at all times. . .
Lists of cited by and citing cases may be incomplete.
Human Rights
Updated: 07 June 2022; Ref: scu.179804
