Ozen v Republic of Germany

This is a judgment of the Court to which both members have contributed.

The Applicant, a Turkish citizen of Kurdish extraction, having been committed in custody by District Judge Evans sitting at Bow Street Magistrates Court, applies for a writ of habeas to prevent his return to Germany.

The Applicant was born in Turkey on 8 August 1971. In 1974 his father obtained a job in Germany. The family went to Wernau near Esslingen. There were four other children. Except for a brother called Fatih, to whom we shall refer shortly, they all live in Germany. We assume the Applicant held an unlimited permission to reside in Germany.

On 21 February 1994, when he was 22, the Applicant was convicted of a series of offences by the Local Court in Esslingen. They were “attempted extortionary robbery,” four cases of “dangerous bodily injury,” and one case of “attempted compulsion.” He was sentenced to 1 year 6 months’ imprisonment suspended on probation for three years. He committed these crimes with his brother, Fatih, who received the same sentence.

On 24 November 1994 the Applicant’s suspended sentence was revoked and he was committed to prison.

On 24 January 1995 the Applicant appeared before the same court again. He was convicted of another series of offences. They were “two crimes under the War Weapons Control Act,” which involved the possession of a hand grenade, one offence of “aiding and abetting 2 violations of the law on firearms committed in one act, 1 offence of falsification of health insurance, 5 offences of a particularly serious case of theft, in 3 cases committed jointly” and one offence of “wilfully driving without a licence.”

In the Secretary of State’s authorisation to the Senior District Judge to proceed under the Extradition Act 1989 the equivalent offences under English law are said to be blackmail, assault occasioning actual bodily harm, attempting to pervert the course of justice, making a threat to kill, kidnapping, possession of an offensive weapon, possession of an explosive substance, unlawfully causing gunpowder to explode, possession of firearm without a certificate, possession of ammunition without a certificate, burglary, theft, making and using a false instrument.

He was sentenced to 2 years 6 months imprisonment.

On 3 May 1995 he escaped when detained at Hohensberg prison hospital. There remained the sentence of 1 year 6 months to serve (less 139 days in custody awaiting trial) plus 645 days in respect of the 2 year 6 month sentence.

The Applicant came to England. Since then he has appeared before the English Court. On 21 March 2002 he was sentenced to 30 months imprisonment for a conspiracy to defraud and 18 months imprisonment consecutive for an offence of unlawful wounding. These prison sentences expired on 26 June 2003.

On 15 August 2002, when serving his sentence of imprisonment in England, he was arrested under a provisional warrant which had been issued under the Extradition Act 1989 by the District Judge on 29 May 2002.

The Applicant first appeared before the Magistrates Court at Bow Street on 24 January 2003. The case was adjourned for a contested committal hearing. He appeared again on 4 March 2003 and 21 May 2003 when the case was adjourned. On 27 June 2003 the case was listed again. The intention was to call the Applicant’s brother, Fatih. He did not appear because of what he now describes as “personal problems”. An application for an adjournment to secure his attendance failed. District Judge Evans committed the Applicant to await the Secretary of State’s decision as to his return in accordance with section 9(8) of the Extradition Act 1989.

As it is relevant to this application, we should summarise the material effect of Fatih Ozen’s evidence.

On 14 April 1994, because his visa had allegedly not been renewed, he was arrested and ultimately deported by the German authorities to Istanbul on 27 April 1994. He remained in Turkey for about six months. He then left for Germany on a false passport. He says he feared he would be conscripted into the Turkish army to fight the Kurds. When in Germany, he consulted a lawyer. He says he was assured that because of his social ties and the presence of his family in Germany he would not be deported: that all legal steps would be taken to protect his position. However, on 29 April 1997 he was arrested by the German police and deported a second time to Istanbul. Once there, he was severely beaten by the police because they believed he was a member of the Kurdish independence movement, the PKK. His nose was broken, he lost two teeth and the skin on his arm was split. After release from the police, he was admitted to hospital. Thereafter, he was arrested again by the military police and detained. Finally, he escaped on a false passport to the United Kingdom where he was granted asylum.

As a result of his treatment in Germany, a case was brought against the German Government. It was settled on terms that effectively rescinded his deportation on payment by him of some 1000 euros in costs. He could, but will not, return to Germany.

Fatih Ozen has made a more recent statement in which he says that he “really believe[s] that if returned to Germany [the Applicant] will suffer the same fate as [himself] in that he will be sent to Turkey without meaningful opportunity to prevent this happening and, if returned, he will suffer at the hands of the Turkish authorities.”

The Applicant’s argument can be put shortly. On completion of his sentence there is a serious possibility that the German Government will deport him to Turkey in contravention of his human rights, in particular his right to respect for private and family life under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; also that he has a well founded fear that in Turkey he would be subjected to inhuman or degrading treatment or punishment, contrary to Article 3.

In support of his submissions, the Applicant relies on the decision of The European Court of Human Rights in Yilmaz v Germany (Application 52853) and the treatment of his brother by the German and Turkish authorities.

The Applicant expressly accepts through Mr. Owen Davies QC that the law of Germany contains a protection of his rights which is “admirable” but contends that there is a serious possibility, to which we should have regard, that it will not in practice be properly applied in his case. He suggested this apparent protection was “an entirely empty right.”

The Respondent accepts that the Applicant will have to complete the outstanding part of his sentence and will thereafter be liable to be expelled from Germany. However, any decision to expel him will be according to law and subject to appeal in the German courts. His family situation will be considered as will the treatment he may receive if returned to Turkey. The Government of Germany will respect its obligations under the Convention.

Moreover, the relevant provisions in German law, which apply to all non-German nationals, have been held by the Strasbourg Court and the Commission to amount to a proportionate interference with the right to respect for private and family life.

By section 6(1) of the Extradition Act 1989

“A person shall not be returned under Part III of this Act…if it appears to an appropriate authority…

(d)

that he might if returned, be…detained or restricted in his personal liberty by reason of…nationality…”

Mr. Davies contends that the scope of this subsection is of sufficient width to extend to a situation where there is a real risk that the requesting state may send the person to another state where the detention or restriction referred to in the subsection may take place. He submits that the risk here is of detention by reason of nationality. He does not shrink from contending that detention by reason of his non-German nationality would be sufficient.

Ms Ezekiel, as part of her most able submissions on behalf of the Respondent, contends for a narrower construction. First, she argues that the detention or restriction referred to can only be referable to the particular returnee’s nationality, in this case Turkish. Second, she submits that the section 47 is not part of the trial process or sentencing procedure. It is an independent administrative procedure. Third, she submits that section 6(1)(d) can only apply to conduct within the requesting state’s borders.

So far as we are aware, the point is free of any authority. For the purposes of this judgment, although attracted by the force of Miss Ezekiel’s argument, we are prepared to proceed on the construction most favourable to the Applicant. We emphasise that we are not deciding the point in his favour .

Section 47(1) number 1 of the Foreigners Act provides that

“A foreigner shall be expelled from [Germany] if he has finally been convicted and sentenced to a term of imprisonment or youth custody of at least 3 years for one or several intentionally committed offences…”

Section 51(2) of the same Act provides that,

“A foreigner may not be deported to a country in which his life or freedom are threatened on account of his race, religion, nationality, because he belongs to a certain social group…

A foreigner who has been expelled from [Germany] does not have to be deported to the state of origin which is obliged to readmit him under international law. He can be deported to a third state which is prepared to accept him if there are no obstacles to a deportation where this state is concerned.”

A Supplementary Declaration to the German extradition request states that the “European Convention for the Protection of Human Rights is…binding upon all government agencies, and is to be taken into account by the German courts, ex officio.”

Our attention has also been drawn to sections 45 and 55 of the Foreigners Act. However it is not necessary for us to refer to them.

In short, while on its face section 47 obliges the German state to expel a foreigner after completion of an appropriate sentence, section 51(2) and the Convention provide clear safeguards if properly applied.

By Article 8 of the European Convention on Human Rights,

“1.

Everyone has the right to respect for his private and family life…

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and necessary in a democratic society in the interests of…for the prevention of disorder or crime…”

By Article 3 of the Convention

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

At the forefront of Mr. Davies’ argument was the only decision of the full court on section 47, namely Yilmaz v Germany (52853/99). The court considered the deportation of a Turkish national, born in Germany, co-habiting with a German national with whom he had a four year old son. He had unlimited permission to reside. The sentence he received was three years’ imprisonment. On his release he was informed that if he did not leave Germany within a stated period, he would be removed to Turkey, pursuant to section 47. He was also excluded from German territory for an indefinite period. Subsequently he was refused a temporary residence period so that he could visit his child. He claimed that both the deportation order and the exclusion order had breached his Article 8 rights.

The Court held that his deportation was not disproportionate to the legitimate aims pursued by the German authorities, but that his exclusion for an indefinite period amounted to a disproportionate interference in view of his family situation, the young age of his son and the fact that he had previously enjoyed unlimited permission to reside in Germany. On that basis the unanimous decision of the Court was that there had been a violation of Article 8.

Ms Ezekiel, in submissions with which we agree, emphasises that the deportation itself under section 47 withstood the scrutiny of the full court. She also directed our attention to no fewer than eight other European decisions which were to the same effect in which alleged violations of Article 8 had been held inadmissible. The facts in Yilmaz were quite different from the present case.

She also, in our view rightly, submits that it is clear that in each case the German Administrative Court structure has carefully considered the facts, the personal circumstances and the family situation of each deportee. As an example she relies on Karadag v Germany (21212/93), a decision of the European Commission, in which there was an administrative decision by the county administration, an administrative appeal to the regional governor, a hearing before the Administrative Court, an appeal to the Administrative Court of Appeal which quashed the deportation order but affirmed the order to leave the territory and finally an appeal to the Federal Administrative Court. It is now clear from the papers before us that this careful multi-tiered approach was followed in the case of the Applicant’s brother, Fatih Ozen.

Mr. Davies submits that none of the cases to which we have referred involved a Turkish citizen of Kurkish origin. On the face of it he is correct and we so assume. However, given a careful consideration of the merits of each case by the German Court, as the authorities suggest, the ethnicity of the deportee would be a factor to which equal weight would be afforded by the German Administrative Court system.

In support of his argument that there is a real risk that the Applicant’s Article 3 rights will be breached, Mr. Davies relies on the history of Fatih Ozen’s dealings with the German authorities and his treatment when deported to Germany. He argues that this history will or may repeat itself in the Applicant’s case. As will become apparent, we do not agree.

The applicant’s case, put simply, asks this court to reach the conclusion that there is a real risk that the courts of Germany will fail to apply German law correctly in the following respects: