In Absentia Convictions and Defence Rights in Extradition Proceedings under Turkish Law

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🇬🇧 Summary

The case concerned an extradition request submitted by the Republic of Kazakhstan against G.K. for alleged embezzlement offences committed between 2014 and 2016.The Bakırköy 20th Heavy Penal Court found the extradition request admissible under Law No. 6706.The defence appealed, arguing inter alia that:- insufficient time had been provided for defence preparation;- the requested person had already been convicted in absentia in Kazakhstan in 2024;- the extradition file was outdated because it relied on a 2019 extradition request;- additional documents concerning the alleged conviction should have been obtained;- the prosecution was politically motivated;- extradition would expose the requested person to torture and ill-treatment;- specialty guarantees had not been properly addressed.The Turkish Court of Cassation held that the lower court failed to sufficiently investigate whether:- in absentia proceedings had occurred;- a conviction had become final;- defence rights had been respected in the requesting State.The Court emphasized that under:- Article 4(1)(ç) of Law No. 6706;- Article 18(2) of Law No. 6706;- and the bilateral judicial cooperation agreement between Türkiye and Kazakhstan,supplementary information and updated documentation should have been requested before assessing extradition admissibility.The Court therefore quashed the judgment.

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Legislation

- Law No. 6706 on International Judicial Cooperation in Criminal Matters (Article 4(1)(ç), Article 16(2), Article 18(2), Article 18(4))
- Turkish Criminal Procedure Code (CMK) (Articles 285, 299, 302(2))
- Agreement between the Republic of Türkiye and the Republic of Kazakhstan on Mutual Legal Assistance in Criminal Matters and Extradition (1997) (Article 25)

ECHR References

Although not expressly analyzed by the Court, the defence relied on:
- fair trial guarantees;
- allegations of torture and ill-treatment;
- political motivation objections.
Relevant ECHR context may include:
Article 3 ECHR and Article 6 ECHR

The Republic of Kazakhstan requested the extradition of G.K. for alleged embezzlement offences committed between 2014 and 2016.

The Bakırköy 20th Heavy Penal Court found the extradition request admissible under Law No. 6706 on International Judicial Cooperation in Criminal Matters.

The defence appealed on several grounds, including:

inadequate time to present evidence and defence arguments;
allegations that the requested person had already been convicted in absentia in Kazakhstan in 2024;
assertions that the extradition request and underlying proceedings were politically motivated;
risks of torture and ill-treatment upon extradition;
absence of adequate specialty guarantees;
incomplete extradition documentation.

The Turkish Court of Cassation examined the extradition request together with:

the bilateral Agreement on Mutual Legal Assistance in Criminal Matters and Extradition between Türkiye and Kazakhstan dated 4 August 1997.

The Court emphasized Article 4(1)(ç) of Law No. 6706, which permits refusal of judicial cooperation where fundamental defence guarantees are lacking in the requesting State.

The Court further noted Article 18(2) of Law No. 6706, allowing Turkish courts to request supplementary information and documentation where extradition materials are considered insufficient.

Because the defence had specifically alleged that:

an in absentia conviction had already been rendered;
the conviction may have become final;
defence rights may not have been respected,

the Court held that the lower court should first have clarified:

whether in absentia proceedings had occurred;
whether a final conviction existed;
whether the requested person had benefited from adequate defence rights.

The Court therefore concluded that the extradition admissibility decision had been rendered following incomplete examination.

Additionally, the Court identified technical legal errors in the lower court judgment, including:

incorrect reference to the European Convention on Extradition, to which Kazakhstan was not a party;
incorrect indication of the offence date.

The judgment was quashed and the case remitted.