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Criminal Extradition (Return) Procedure in Turkey
The state’s criminal jurisdiction authority, which the state has been granted by its nature, is critical regarding public security and justice. The principle of territoriality, which prevails in Criminal Law, eliminates the possibility of punishing a person who absconds to a foreign state after committing a crime. In such cases, the issue of “extradition” comes to the fore, and this issue will be discussed in detail in this article.
What is Extradition?
Extradition is the return of criminals – who have committed a crime in a state’s territory and then abscond to another state’s territory – where the crime was committed.[1]
In accordance with the principles of International Law, states investigate and prosecute their own citizens according to their own domestic legislation, and the extradition procedure will not be applied when it comes to states’ own citizens.
Regarding the extradition of criminals in Turkish Law, the extradition procedure will be carried out in accordance with The International Judicial Cooperation Law in Criminal Matters with Law No. 6706 and the European Convention on Extradition “ECE”, to which Turkey is a party.
What Are The Conditions For Extradition?
Extradiction will take place with the condition that the state requesting the extradition and the state which the offender found in its territory (the requested state) have an agreement. Thus, provisions of the agreement will be applied. To put it clear with an example, the states party to ECE, to which Turkey is also a party, has mutually agreed to extradite offenders who are being prosecuted for violating the law or who are wanted by the judicial authorities of the extradition requesting party for the execution of a penalty or security measure, within the conditions set out in the convention.[2]
Within the absence of such agreement between the requesting and requested state(s), the extradition will take place in accordance with the domestic law of the states and the rules of mutual goodwill and courtesy between states.
There are several conditions that must be met for extradition.
Presence of Crime
The person whose extradition is requested must have committed or is alleged to have committed a crime in the country where extradition is requested.
Although there are different opinions, the most relevant opinion is that the offense in question must have met criminal offense characteristics under the domestic law of both the requesting and requested states. This requirement is a reflection of the “principle of double criminality”.
In addition, the alleged offense must not be subject to a statute of limitations or remission of punishment.
The severity of The offense
Pursuant to Article 10/2 of Law No. 6706, in order for the extradition provisions to be applied;
“Request for extradition may be accepted during the investigation or prosecution phase for offences which require the upper limit of the sentence of deprivation of liberty to be at least one year according to both the law of the requesting state and Turkish Law. With regard to finalized convictions, the request for extradition may be accepted if the imposed sentence is deprivation of liberty for at least four months. In the event that the person whose extradition is requested has committed more than one offence, these offences may be included in the request for extradition even if the stipulated sentence for some of them is less than the specified period.”
As it can be understood from the nature of the law, the crimes subject to extradition are crimes that require an upper limit of one year or more of imprisonment for crimes under investigation or prosecution. In the case of a final decision of the court on conviction, it is mandatory for the application of the extradition provisions that the punishment imposed must be at least four months’ imprisonment. Article 2 of the ECE stipulates the same conditions.
Extraditable Characteristics of The Crime/Offence
Article 3 and seq. of the ECE lists a number of offenses to which the extradition provisions will not apply.
Political Crimes
Crimes against the State, its national security and independence, the exercise of public freedoms, or violation of them are considered political crimes.[3] Pursuant to Article 3 of the ECE, extradition procedures shall not be applied for political crimes. However, there are exceptions to the principle of non-extradition.
The exceptions are regulated under Article 3/3 of the ECE. Accordingly, a crime that constitutes an attempt on the president of a state or his family’s life shall not constitute a political crime.
Moreover, Article 3/2 of the ECE regulates a non-extradition situation for infamous crimes. Accordingly, the requested state may refuse extradition if it has a conviction on the point that the extradition request is intended to prosecute and punish the offender on account of race, religion, nationality, or political opinion.
Military Crimes
Pursuant to Article 4 of the ECE, extradition procedures shall not apply to military offenses that do not constitute crimes under criminal law.
Financial Crimes
Financial crimes are crimes committed against the financial system of a state. Crimes committed by violating the economic and financial legislation of the state regarding taxes, duties, fees, foreign exchange, and customs are within the scope of financial crimes.
Also Read:
- Economic Crimes in Turkish Criminal Law,
- Financial Crime of Manipulation,
- What is Tax Evasion Crime and its Penalty?
According to Article 5 of the ECE, extradition for financial crimes is left to the appreciation of the parties. States parties to the Convention may conclude a special agreement among themselves on this matter.
Circumstances Where an Extradition is Not Acceptable
There are a number of circumstances in which the extradition procedure will not be carried out. These circumstances are regulated pursuant the Law No. 6707:
- Except for the obligations required by being a party to the International Criminal Court, the criminal whose extradition is requested is a Turkish citizen (Art. 11/1-a of Law No. 6706).
- The criminal whose extradition is requested has previously been acquitted or convicted in Turkey for the act subject to the request (Art. 11/1-ç of Law No. 6706).
- The extradition request relates to crimes punishable by the death penalty or a penalty incompatible with human dignity (Art. 11/1-d of Law No. 6706). In this regard, the extradition requesting state may make extradition possible by providing a sufficient guarantee that the punishment of the aforementioned nature will not be executed.
In Nivette v. France (44190/98, July 3, 2001) case, the ECtHR held that the extradition of the applicant, an American citizen suspected of murdering his girlfriend, to the United States would constitute a violation of Article 3 of the European Convention on Human Rights, in particular, if he were sentenced to life imprisonment without the possibility of early release.
- The extradition request may be rejected if the criminal requested for extradition is under the age of 18, has been in Turkey for a long time, is married, etc., and if disproportionate victimization arises between the criminal acts of the person and the application of the extradition procedure.
In this respect, the circumstances listed under sub-heading (c) of heading (2) above constitute the circumstances preventing extradition.
Extradition Procedure
In the case of a criminal who is in Turkey’s territory and whose extradition is requested, the decision on the extradition request is within the jurisdiction of the heavy criminal court competent in the place where the person whose extradition is requested is located. If the location of the person can not be precise, the Ankara High Criminal Court will be competent.
Pursuant to Article 19 of Law No. 6706; in the event that the heavy criminal court decides that the extradition request is admissible, the execution of this decision depends on the proposal of the Minister of Justice and the approval of the President of the Republic, in consultation with the Ministries of Foreign Affairs and Interior.
The result of the extradition request shall be notified by the Ministry of Justice to the requesting State and the criminal whose extradition is requested.
Article 20 of Law No. 6706; in the situation that there is a criminal investigation or prosecution in Turkey for another crime or a custodial sentence to be executed against the criminal whose extradition is ordered, or if he/she is unable to travel, the Central Authority may decide to postponement the extradition. This decision shall be notified to the criminal and the requesting State.
Non-Extradition States
Lebanon, Tajikistan, Tunisia, Tunisia, Jordan, Uzbekistan, Pakistan, Syria, Mongolia, Egypt, Libya, and a number of other countries do not accept extradition.
References & Sources
- [1] ŞAFAK Ali, Ansiklopedik Hukuk Sözlüğü, Genişletilmiş ve Gözden Geçirilmiş 4. Baskı, Ankara, 2002, s. 527.
- [2] ÖÇER Oktay, “Extradition of Criminals and the European Convention” Adalet Dergisi, Issue 1-12, Ankara, 1974, pp. 179-193.
- [3] BAYRAKTAR Koksal, Political Crime, Istanbul 1982, pp. 84-88.
