SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 6575/06 by Fraydun Ahmet KORDIAN against Turkey

The European Court of Human Rights (Second Section), sitting on 4 July 2006 as a Chamber composed of:

Mr J.-P. Costa , President, Mr A.B. Baka , Mr R. Türmen , Mr M. Ugrekhelidze , Mrs E. Fura-Sandström , Ms D. Jočienė , Mr D. Popović , judges, and Mrs S. Dollé , Section Regist rar ,

Having regard to the above application lodged on 15 February 2006 ,

Having regard to the provisional measure indicated to the respondent Government under Rule 39 of the Rules of Court ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Fraydun Ahmet Kordian, has both American and Iraqi national ity and was born in 1956. He is currently detained in Turkey pending extradition to the United States to face charges of murder in the State of California . He was represented before the Court by Mr M. Bilici a nd Mr M. Türköz , lawyers practising in Istanbul . The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court .

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

1. The applicant ’ s arrest and subsequent detention with a view to extradition

The applicant fled from the United States (“ US ”) as he was suspected of murdering two people and attempting to murder two others, in California . On 20 October 2005 the California State Court issued an arrest warrant for the applicant.

On 22 October 2005 the applicant was arrested at Istanbul Atatürk Airport , while in transit to Iraq . He was detained on the same day by the Bakırköy Magistrates Court, relying on the decision of 20 October 2005 of the California State Court.

On 31 October 2005 the Ministry of Foreign Affairs sent a diplomatic note to the US authorities, informing them about the provisional detention of the applicant.

2. The United States ’ request for extradition and related assurances

On 19 December 2005 the US Embassy in Ankara submitted a diplomatic note to the Turkish Ministry of Foreign Affairs, transmitting duly certified and authenticated documents in support of the extradition request concerning the applicant. They presented the affidavit, dated 2 December 2005 , of Mr Robert Grace, the Los Angeles County Deputy District Attorney, stating that his office was determined not to seek the death penalty against the applicant for the two counts of murder. The undertaking given by Mr Grace read as follows:

“Kordian would face the maximum penalty of death or life imprisonment without the possibility of parole if he is convicted of more than one crime of murder in the first or second degree. Having given consideration to the facts and circumstances of the murders with which Kordian is charged, this office has determined not to seek the death penalty against the defendant. Accordingly the maximum possible punishment that could be imposed on the defendant in this case would be life imprisonment without the possibility of parole, plus monetary fines and restitution. This office is aware that this election is irrevocably binding upon us should the petition for extradition be granted in this case such that we could not later elect to pursue the death penalty against Kordian for this offence.”

The affidavit was sworn before the California Superior Court Judge and certified by the Associate Director at the Office of International Affairs in the Criminal Division of the Department of Justice on 6 December 2005 . Furthermore, on the same day the affidavit and its certification were sealed by the Attorney General of the US Department of Justice and ultimately by the Secretary of State.

3. The extradition proceedings

On 4 January 2006, following t he questioning of the applicant and the examination of the relevant documents, the Bakırköy Assize Court prolonged the applicant ’ s detention on remand, as it considered that there was no clear request from the US authorities to extradite the applicant. On 6 January 2006 the applicant ’ s lawyer filed an objection against the remand decision. His request w as dismissed by the Bakırköy Public Prosecutor.

On the same day the Ministry of Justice informed the Bakırköy Public Prosecutor that, the contrary t o what the court ha d noted in it s decision of 4 January 2006, there was a clear extradition request from the US authorities concerning the applicant, in accordance with the relevant international agreement between the two countries. On 6 January 2006 , f ollowing the Public Prosecutor ’ s request, the Bakırköy Assize Court reconsidered the applicant ’ s case and rectified its initial decision. It decided to detain the applicant until his extradition.

B. Proceedings before the Court

On 15 February 2006 the applicant ’ s representative requested the Court to indicate to the Turkish Government , under Rule 39 of th e Rules of Court, the suspension of his client ’ s extradition.

On 16 February 2006 the President of the Chamber to which the case had been allocated decided to indicate to the respondent Government that it was desirable in the interest s of the parties and the proper conduct of the proceedings before the Court not to extradite the ap plicant to the United States until further notice , and invited them to submit written observations on the admissibility and merits of the case.

Following th is R ule 39 indication, on 21 February 2006 the Ministry of Justice requested the suspension of the extradition proceedings.

On 16 March 2006 and 14 April 2006 , the Court received the observations of the Government and the applicant, respectively .

C. Relevant domestic law

Extradition between Turkey and the United States is governed by the “Treaty on extradition and mutual assistance in criminal matters between the United States and the Republic of Turkey”, signed at Ankara on 7 June 1979. It entered into force 1 January 1981 . The relevant provisions of the Treaty provide as follows:

Article 7

“ Contents of the request:

1. A request relating to a person being prosecuted or who is charged with an offence, and who has yet to be convicted, shall be accompanied by the following:

(a) A warrant of arrest issued by a judge or other competent judicial officer;

(b) A statement of the facts of the case;

(c) Such evidence as, according to the laws of the Requested Party, would justify arrest and committal for trial of the person sought if the offence had been committed in the territory of the Requested Party;

(d) Evidence proving that the person sought is the person to whom the warrant of arrest refers, including information, if available, on nationality; and

(e) The text of the applicable laws of the Requesting Party, including the law defining the offence, the law prescribing the punishment for the offence, and the law relating to the limitation of legal proceedings or the enforcement of the penalty for the offence. ...”

Article 10

“ Provisional arrest or detention:

(1) In cases of urgency, either Contracting Party may apply for the provisional arrest or detention of the person sought before the request for extradition has been submitted to the Requested Party through diplomatic channels. The request for provisional arrest or detention may be made either through diplomatic channels or directly between the Department of Justice of the United States and the Ministry of Justice of Turkey .

(2) The application for provisional arrest or detention shall state that a warrant of arrest or a judgment exists and that it is intended to make a request for extradition. It shall also state the offence for which extradition will be requested and when and where such offence was committed and shall give all available information concerning the description of the person sought and nationality. ...

(3) The Requested Party shall make the necessary arrangements for the provisional arrest or detention and shall notify the other Party when the person sought has been arrested or detained specifying that the person sought will be released if the documents mentioned in Article 7 are not submitted within a period of 60 days from the date of arrest or detention.

(4) If the documents for extradition are submitted to the executive authority of the Requested Party within the 60 day time limit, the arrest or detention shall continue until a decision on the request for extradition has been reached by the competent authorities of the Requested Party. If the request for extradition is granted, the arrest or detention may be extended to the extent permitted by the laws of the Requested Party. ...”

COMPLAINTS

The applicant complained under Article 3 of the Convention that , if he is ext radited to the United States (State of California ) , he runs the risk of being sentenced to the death penalty. In his submissions, he contended that if he is sentenced to life imprisonment, without a possibility of parole, this would be inhuman punishment in violation of Article 3 of the Convention.

Moreover , the applicant complained under Article s 6 and 13 of the Convention that neither he nor his lawyer was present when the Bakırköy Assize Court gave its decision of 6 January 2006 , and that this decision was not served on to him.

THE LAW

1. The applicant contended that if the Turkish authorities were to extradite him to the United States , he would risk being sentenced to the death penalty . This would give rise to a breach by Turkey of Article 3 of the Convention , which provides as follows :

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

a. The Government ’ s submissions

The Government contended that the applicant was not at risk, given the assurances contained in the affidavit of the Los Angeles County Deputy District Attorney, sworn before the California Superior Court Judge and certified by the Associate Director at the Office of International Affairs in the Criminal Division of the Department of Justice. Furthermore, the affidavit and its certification were sealed by the Attorney General of the US Department of Justice and ultimately by the Secretary of State. According to that affidavit, the Office of the Los Angeles County Deputy District Attorney was determined to not to seek the death penalty against the applicant should he be convicted of murder. This assurance was irrevocably binding should the petition for extradition be granted.

The Government a sserted that the guarantee given by the US authorities in the present case w as more convincing than th at given in Soering v. the United Kingdom (judgment of 7 July 1989, Series A no. 161, § 20) . Consequently, t hey requested that the Court lift the provisional measure , issued in accordance with Rule 39 of its Rules, and declare the application inadmissible as being manifestly ill-founded.

b. The applicant ’ s submissions

The applicant maintained that the undertaking obtained from the US authorities was not included in the cas e file pending before the Bakırköy Assize Court . Moreover , he stated that , notwithstanding the assurance given to the Turkish Government, there was a serious likelihood that he would be sentenced to death if extradited to the United States . He contended that, although the Deputy District Attorney was determined not to seek the death penalty for each individual crime, there was no such guarantee regarding the multiplicity of crimes which he had committed. He further argued that there was no explanation as to the prison conditions in which his impending life sentence would be executed.

c. The Court ’ s assessment

The Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens. The right to asylum is not contained in either the Convention or its Protocols (see Vilvarajah and Others v. the United Kingdom , judgment of 30 October 1991, Series A no. 215, p. 34, § 102).

However, it is the settled case-law of the Court that extradition by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question would, if extradited, face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. The establishment of such responsibility inevitably involves an assessment of the conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment (see Soering , cited above, p. 35, §§ 89-91).

It would hardly be compatible with the “common heritage of political traditions, ideals, freedom and the rule of law” , to which the Preamble refers, were a Contracting State knowingly to surrender a person to another State where there were substantial grounds for believing that he or she would be in danger of being subjected to torture or inhuman or degrading treatment or punishment ( ibid , p.35, § 88).

Whil st aware of the laws of the State of California , which impose the severest penalties for a murder conviction , in the present case the Court must establish whether the applicant ’ s situation would contravene Article 3 of the Convention.

The Court notes that the Turkish authorities have demonstrated their desire to abide by the ir Convention obligations, first by obtaining guarantee s from the compete nt US authority prior to the request of the Court and , secondly , by staying the applicant ’ s surrender in accord ance with the provisional measure indicated by the President of the Section. It considers that the affidavit of the Deputy District Attorney of the Los Angeles County , which has been certified by the Criminal Division of the Department of Justice and sealed by the US Department of Justice and the Secretary of State , constitutes a sufficient guarant ee that the death penalty will not be requested or imposed should the applicant be convicted of murder .

C ontrary to the applicant ’ s submission, in view of the guarantees given by the US authorities , the Court considers it unlikely that , if he were convicted o n several counts of murder , the possible sentences of life imprisonment would be converted to the death penalty. Moreover, the Court is unable to speculate whether the applicant would receive a life sentence without the possibility of parole, the conditions in which he might serve that sentence or the effect such a sentence might have on him. In that connection, the Court observes that the applicant has not claimed that his state of health would be an impediment to the enforcement of the extradition order. Nor he has provided any evidence in support of his concerns regarding the prison conditions in which his possible life sentence would be served.

In view of the above considerations, the Court deems it appropriate to discontinue the indication issued under Rule 39 of its Rules, and concludes that the applicant ’ s complaint under Article 3 of the Convention must be rejected as being manifestly ill-founded , pursuant to Article 35 §§ 3 and 4 of the Convention .

2. The applicant alleged that he did not have a fair hearing before the Bakırköy Assize Court that has ruled on the request for his extradition, in that neither he nor his lawyer were present when the decision of 6 January 2006 was given. He complained of the unfairness of the extradition proceedings in Turkey . He relied on Articles 6 § 1 and 13 of the Convention, which guarantee respectively the right to a fair hearing and effective remedies for Convention breaches.

However, t he Court reiterates that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant ’ s civil rights or obligations or of a criminal charge against him, within the meaning of Article 6 § 1 of the Convention ( Maa ouia v. France [GC], no. 39652/98, § 40, ECHR 2000-X ; Mamatkulov and Askarov v. Turkey [GC], nos . 46827/99 and 46951/99, §§ 81-83, ECHR 2005 ‑ ... ).

The Court concludes, therefore, that Article 6 § 1 is not applicable in the instant case and that the applicant has no arguable claim for the purposes of Article 13 of the Convention (cf. Boyle and Rice v the United Kingdom , judgment of 18 April 1988, Series A no. 131, p. 23, § 52). It follows that this part of the application must be rejected as being incompatible ratione materiae with the provisions of the Convention, pursuant to Article 35 §§ 3 and 4 .

For these reasons, the Court by a majority

Decides to discontinue the application of the provisional measure indicated under the Rule 39 of the Rules of the Court;

Declares the application inadmissible.

S. Dollé J.-P. Costa Registrar President