42
OTHMAN (ABU QATADA) v. THE UNITED KINGDOM JUDGMENT
that statements by a third party, Ms Sorzabal Diaz, whilst in detention were
the only evidence against Mr Irastorza Dorronsoro. The court found there
were serious grounds for believing that Ms Sorzabal Diaz had been
physically abused during her detention and further inquiries of the Spanish
authorities had failed to dispel those concerns. It could not been excluded,
therefore, that her statements had been obtained contrary to Article 15 and,
as such, the extradition request was refused.
c. Germany
133. Article 15 was also relied on by the Düsseldorf Court of Appeal
(Oberlandesgericht) in its decision of 27 May 2003 refusing extradition of a
terrorist suspect to Turkey. The court recognised that Turkey had ratified
UNCAT and incorporated its provisions into domestic law. However, there
was a real risk (konkrete Gefahr) of those provisions not being respected in
the event of the requested person’s extradition. On the evidence before it,
the court found reasonable evidence (begründete Anhaltspunkte) to presume
that statements given to the Istanbul police by 32 co-defendants in autumn
1998 – containing full confessions – were made under the influence of acts
of torture by the Turkish security forces. The allegations of torture were
supported by medical evidence (albeit records that were unclear in places)
and matched information available from general reports on methods of
torture commonly applied – not always with physically verifiable effects –
in police custody in Turkey. There was, moreover, a risk, substantiated by
concrete evidence (durch konkrete Indizien belegte Gefahr), that the
statements taken from the co-accused might be used in proceedings against
the requested person in Turkey. The Court of Appeal accepted that, in their
judgments, Turkish courts were required to have regard to the domestic and
international legal provisions against the admission of torture evidence, as
well as case-law of the Turkish Court of Cassation to the effect that
uncorroborated confessions were inadmissible. However, human rights
reports had repeatedly noted that inadequate investigation by the Turkish
criminal justice system of allegations of torture meant that courts continued
to use confessions obtained by police ill-treatment. There were grounds to
fear that the Istanbul National Security Court would do so in the instant
case, not least that it would be impossible to prove the charges against the
requested person without relying on the autumn 1998 statements taken by
the police.
134. The Düsseldorf Court of Appeal’s judgment was relied upon by the
Cologne Administrative Court (Verwaltungsgericht) in its judgment of
28 August 2003 in a related extradition case. The Cologne court found that
the Court of Appeal’s conclusions were not altered by further assurances
given by the Turkish authorities; those assurances were not specific but
rather relied only on the general applicable provisions of Turkish law on
torture evidence.
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