Decision No. 382/1993 of the Court of Appeal of Thessaloniki

Summary of facts: On 20-4-93, the Turkish Embassy in Athens by verbal note requested the extradition of S.S. and A.G. These two Turkish nationals were wanted in Turkey for membership of the terrorist group TKP/MA-TIKKO; in particular the former was sought for membership of its military committee and the latter for violation of the arms legislation and participation in a bank robbery during which he allegedly killed a bank clerk. Both accused had been arrested and escaped from prison. Extradition was requested for both only for the offence of escape from prison using forged documents, as it appeared from the documents supporting the extradition request. Both persons sought declared, before the Council, that they were members of the banned communist party TKP/MA-TIKKO and had suffered torture by the Turkish authorities for this reason. They had both entered into Greece illegally and applied for asylum (the latter having already been granted refugee status). The Council of the Court of Appeal ruled, based on the evidence produced, that the extradition request was politically motivated, since according to the supporting documents, extradition was requested only for a minor offence –escape from prison. Taking into account that the latter was already a recognized refugee, the Court ruled that the extradition request was only a pretext, and that there are well-founded reasons to consider that, if granted, the accused would be persecuted for their political opinions and denied extradition. 

After the conclusion of deliberations, the Public Prosecutor was informed that Turkey sent supplementary documentation on the two extradition cases, including the offences of participation in a terrorist organization, robbery and murder for the former, and of participation in a terrorist organization and armed robbery for the latter. A new date was set for the examination of the new extradition request. 

Point of law: The extradition request is rejected as unfounded because a) it is politically motivated b) the condition of the persons sought might deteriorate due to their political opinions and c) they were to be tried by a State Security Court which includes, among its members, a military officer in service, and lacks thus the necessary guarantees of personal ad functional independence. 

Reasoning and decision:

A) Art. 2 para. 1 and art. 12 of the European Extradition Convention prescribe absolutely the necessary documentation that must be supplemented for an extradition request, so that the requested State may decide on the admissibility of it: the description of the offence, the time and place of the its perpetration, the legal definition of the offence and the reference to the relevant legislation and the foreseen penalty for it that must be, under the laws of both requesting and requested States, a deprivation of liberty of at least one year prison sentence. In view of the above the Turkish request is admissible.

B) Art. 3 para. 2 of the European Extradition Convention does not allow extradition when the requested state has serious reasons to believe that the position of the person sought may be prejudiced, among others, due to his political opinions. Art. 3 para.4 of the same convention stipulates that the said convention does not affect prior obligations of the contracting States deriving from other multilateral conventions, among whom the 1950 Rome European Convention on Human Rights. Art. 6 para. 1 of this Convention consecrates the right to a fair trial by an independent and impartial judge. Consequently, extradition may also be denied when it is plausible that the trial of the person sought may not be fair or may be conducted in a partial way, as when military officers participate in the panel of judges. A military officer in service, assigned to judicial tasks, cannot enjoy personal and functional independence. Greek courts are, furthermore, competent to examine whether the requesting country allows its judges personal and functional independence. This guarantee is, in fact, constitutionally stipulated by virtue of art. 87 para.1 of the Greek Constitution. Independently of the validity of the offences committed and of their nature (either political or ordinary), there are serious reasons to believe that the position of the persons sought may be prejudiced due to their political opinions, to their past experience of torture and to the fact that they will be tried by a State Security Tribunal, which includes a military officer. 

The Court ruled against extradition of the political refugees to Turkey.