KORDIAN v. TURKEY
Inadmissible
The applicant, Mr Fraydun Ahmet Kordian, has both American and Iraqi nationality 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 and 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. The facts of the case, as submitted by the parties, may be summarised as follows. 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. 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. On 4 January 2006, following the 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 was dismissed by the Bakırköy Public Prosecutor. On the same day the Ministry of Justice informed the Bakırköy Public Prosecutor that, the contrary to what the court had noted in its 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, following 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. On 15 February 2006 the applicant’s representative requested the Court to indicate to the Turkish Government, under Rule 39 of the 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 interests of the parties and the proper conduct of the proceedings before the Court not to extradite the applicant to the United States until further notice, and invited them to submit written observations on the admissibility and merits of the case. Following this Rule 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. 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. ...”