The burden and standard of proof for fair trial rights in extradition

On 6 January 2021, Chamberlain J dismissed an appeal by Nesin Kaderli, the Requested Person (‘RP’), against a decision by District Judge Goldspring to send his case to the Secretary of State. The RP was sought by Turkey, the Requesting State (‘RS’), to serve a prison sentence imposed following his conviction for rape. This was the second hearing in the RP’s appeal.

The appeal was dismissed but, in doing so, the Court made two significant distinctions which, taken together, arguably weaken the protections afforded to fair trial rights in extradition proceedings.  The result is that countries like Turkey, with highly questionable adherence to the rule of law, will be able to secure extraditions with less judicial scrutiny than before.

The background

The RP advanced three grounds of appeal at his first hearing.  The first two grounds were dismissed.  The third ground of appeal concerned section 85 of the Extradition Act 2003 (‘EA 2003’), which requires the RS to prove to the criminal standard that, where the RP was convicted in absence, the RP deliberately absented himself from his trial or, if not, that he would be entitled to a retrial. In the RP’s case, Chamberlain J disagreed with the District Judge’s finding that the RP deliberately absented himself, where two hearings had been held on the same day, in different locations.

The appeal was then adjourned to give the Turkish authorities an opportunity to supply an undertaking that the appellant would be offered a retrial, and to identify the domestic legal provisions under which this undertaking would take effect.

Second Appeal

Chamberlain J found, ultimately, that the requirements of section 85 were satisfied and dismissed the appeal.  In doing so, he made two key findings on the proper approach to the assessment of the fairness of a retrial.

Under section 85(8), the right to a retrial must include:

(a) the right to defend yourself in person or through legal assistance of one’s own choosing or, and if you had insufficient means to pay for legal assistance, to be given it free when the interests of justice so required; and

(b) the right to examine or have examined witnesses against you and to obtain the examination of witnesses on your behalf under the same conditions as witnesses against you.

It was common ground that the RS needed to prove to the criminal standard that the RP would have these rights.  The defence argued that the same burden and standard of proof applied to all the fair trial rights guaranteed by Article 6 ECHR.  Therefore, even if the RS proved to the criminal standard that the RP’s retrial would comply with the two conditions in section 85(8), extradition nevertheless should fail if the RS couldn’t prove to the same standard that the retrial was fully compliant with Article 6.   The Court rejected this argument, holding that the RS must only establish the specific aspects of fair trial rights required by section 85(8).  The RP could still argue that any such retrial would breach Article 6, but the burden was then on the RP to satisfy the “exacting standards” set by the Strasbourg Court, namely to show substantial grounds for believing that the RP would be exposed to a real risk of being subjected to a flagrant denial of justice.

The second distinction made by the Court related to the types of cases in which this “exacting standard” was likely to be met.  The Court heard expert evidence about political interference and lack of judicial independence in the Turkish criminal justice system.  Whilst noting that the evidence raised a “matter of significant concern”, Chamberlain J distinguished between politically and socially sensitive cases, in which there was a high risk of corruption and partiality, and other cases in which there was not.  The RP’s case was in the latter category so he had not shown substantial grounds for believing that there was a real risk that his retail would be flagrantly unfair

Commentary

The practical implication of this judgment is that the panoply of fair trial rights guaranteed under Article 6 are not treated equally in respect of retrials.  The RS has the burden of proving only that a retrial would comply with the provisions of section 85(8), but the RP has the burden of proving that such a retrial would breach any other rights under Article 6, such as the right to remain silent, equality of arms and  the right to an independent and impartial tribunal. In short, the RS is not required to prove that a retrial will be fair in all respects.  Chamberlain J noted that the defence argument, if correct, would create a different distinction whereby the RS had the burden of proving that a retrial would be fair in every respect where the RP had been convicted in absence, but would have no burden at all in respect of Article 6 in an accusation case where the RP had not yet been tried.  Neither position is satisfactory if one starts from the proposition that all the rights under Article 6 should be guaranteed.

As for the distinction between political and non-political cases, whilst it may be correct that the risks are much higher in the former than the latter, this should not be allowed to become a convenient rule of thumb to dismiss serious concerns about judicial corruption, political influence, and deterioration in the rule of law.  The Court appeared willing to accept that there was clear evidence of systemic, flagrant denials of justice in certain types of cases, but not that this meant there was a real risk of a flagrant denial of justice in any case.  It is difficult to understand how the Court could have such confidence that the Turkish criminal justice system would have such a line and know exactly where to draw it