Extradition is the legal process concerning the surrender of a person who is subject to a criminal investigation, prosecution, or final conviction in one country to the requesting state if that person is apprehended or found in another country. In Turkish law, this institution is mostly referred to as “extradition” or “the return of offenders.”
In Turkey, extradition is evaluated within the framework of Law No. 6706 on International Judicial Cooperation in Criminal Matters, bilateral or multilateral international treaties to which Turkey is a party, the Constitution, and the relevant provisions of criminal procedure. According to the explanations of the Ministry of Justice, extradition is considered both in terms of extradition from Turkey to a foreign state and Turkey’s extradition requests from foreign states.
The extradition process does not conclude automatically merely because a foreign state makes a request. The court examines together the legal conditions of the extradition request, the person’s citizenship, the nature of the offense, statute of limitations, allegation of political offense, human rights risks, and the procedural compliance of the request documents.
What Is Extradition?
Extradition is the process of surrendering a person who is subject to a criminal investigation or prosecution in a foreign country, or who has a final conviction, to the requesting state.
This process may arise in two ways. In the first case, a foreign state requests the extradition of a person located in Turkey. In the second case, Turkey requests the extradition to Turkey of a suspect, defendant, or convicted person located abroad.
For Turkey, extradition is regulated in the third section of Law No. 6706. The Ministry of Justice states that Articles 10 to 21 of Law No. 6706 regulate the procedure for extradition from Turkey to a foreign state, while Article 22 regulates Turkey’s extradition requests.
What Are the Conditions for Extradition?
For extradition to take place, certain fundamental conditions must exist together. Without these conditions, it is not possible to surrender a person to a foreign state.
The main extradition conditions are as follows:
- Existence of a duly submitted extradition request
- The act subject to the request being considered a crime under the laws of both countries
- The offense requiring a custodial sentence of a certain severity
- Absence of a statute of limitations or amnesty obstacle
- The request not being of a political offense or purely military offense nature
- The person not being a Turkish citizen
- No final judgment having previously been issued in Turkey for the same act
- Absence of risk of torture, ill-treatment, or lack of a fair trial
- The request documents being prepared in accordance with the law and treaties
In extradition requests at the investigation or prosecution stage, it is required that, under the law of the requesting state and Turkish law, the upper limit of the offense requires a custodial sentence of a certain severity. In final conviction decisions, the imposed sentence must be above a certain duration. This assessment is made within the scope of the extradition provisions of Law No. 6706.
Dual Criminality Condition
One of the most important conditions in extradition is the principle of dual criminality. Accordingly, the act subject to the extradition request must constitute a crime under both the law of the requesting state and Turkish law.
For example, if an act considered a crime in a foreign country is not regulated as a crime under Turkish law, a serious legal obstacle may arise in terms of the extradition request. Therefore, in extradition files, not only the criminal classification made by foreign authorities but also the equivalent of the act under the Turkish Penal Code and relevant special laws must be examined.
When assessing dual criminality, the name of the offense is not decisive; rather, the legal nature and material elements of the act are taken into account. The use of a different offense name in the requesting country does not by itself constitute an obstacle to extradition. What matters is whether the alleged conduct is punishable under Turkish law as well.
Extraditable Offense Condition
Not every offense can be the subject of an extradition request. For extradition, the requested act must be an offense of a certain severity. Some minor acts, administrative sanctions, or matters arising solely from private law disputes may not be evaluated within the scope of extradition.
The following matters are taken into account in the assessment of an extraditable offense:
- The severity of the penalty prescribed for the offense
- The act being considered a crime in both countries
- Whether the offense has a political or military nature
- Whether the act is a private law dispute or a violation of criminal law
- The sufficiency of the documents submitted by the requesting state
- Whether the offense is time-barred
In particular, economic crimes, fraud, money laundering, drug offenses, organized crimes, homicide, sexual offenses, terrorism offenses, or other acts requiring severe penalties may frequently arise in extradition files. However, the nature of the offense and the extradition conditions must be examined separately in each file.
Can Turkish Citizens Be Extradited?
As a rule, extradition of Turkish citizens to a foreign country is not possible. According to Article 38 of the Constitution of the Republic of Turkey, except for obligations required by being a party to the International Criminal Court, a citizen cannot be surrendered to a foreign country due to an offense.
Therefore, the fact that the person whose extradition is requested is a Turkish citizen is one of the most important grounds for refusal in the extradition process. However, citizenship status must be examined concretely in each file. Dual citizenship, the date of acquisition of citizenship, the date of the offense, the date of the extradition request, and the person’s civil registry records are important in this assessment.
If it is alleged that a Turkish citizen committed an offense abroad, different legal avenues may come into question instead of extradition, such as conducting an investigation or prosecution in Turkey, mutual legal assistance, evidence sharing, or transfer of proceedings.
Cases Where the Extradition Request Will Be Refused
Law No. 6706 also regulates the cases in which an extradition request will not be accepted. If such cases exist, the court may not find the extradition request admissible.
The main cases in which an extradition request may be refused are as follows:
- The person whose extradition is requested being a Turkish citizen
- The person being at risk of punishment due to race, ethnic origin, religion, citizenship, social group, or political opinion
- Risk of torture or ill-treatment in the requesting state
- The act being an offense of thought, a political offense, or an offense connected to a political offense
- The act being of a purely military offense nature
- The act being an offense falling within Turkey’s jurisdiction
- The offense being time-barred or covered by amnesty
- A previous acquittal or conviction decision having been issued in Turkey for the same act
- The request relating to an offense requiring the death penalty or a punishment incompatible with human dignity
Law No. 6706 also provides that, in cases where there is a risk of the death penalty or a punishment incompatible with human dignity, the extradition request may be assessed separately if sufficient assurances are provided by the requesting state. In addition, the law states that a foreigner cannot be deported during the extradition process without obtaining the opinion of the Central Authority.
Extradition Due to Political Offense
In extradition law, the allegation of political offense is an important ground for refusal. If there is serious suspicion that a person will be punished due to political opinions, opposition identity, ethnic origin, or membership of a social group, the extradition request may not be accepted.
However, not every political allegation automatically constitutes an obstacle to extradition. The court evaluates the nature of the act subject to the request, the manner in which it was committed, the means used, the result that occurred, and the severity of the offense. Acts involving serious violence, crimes against humanity, or genocide may not be accepted within the scope of political offense.
Therefore, a political offense defense must be supported not by abstract allegations, but by concrete documents, country reports, judicial practice, the person’s background, and the risks in the requesting state.
Statute of Limitations and Amnesty Condition
If the offense subject to the extradition request is time-barred under Turkish law or the law of the requesting state, the extradition request may be refused. Likewise, if the act has been covered by amnesty, this may also constitute an obstacle to extradition.
The statute of limitations assessment must be made separately in each file. This is because the criminal limitation rules of the requesting country and the limitation periods under Turkish law may differ. In addition, acts that interrupt or suspend the limitation period must also be examined specifically for the file.
Therefore, in an extradition request, not only the date of the offense but also the arrest warrant, indictment, conviction decision, enforcement process, and the statute of limitations provisions of the requesting state must be evaluated together.
A Previous Decision Having Been Issued for the Same Act
If a previous acquittal or conviction decision has been issued in Turkey for the same act concerning the person whose extradition is requested, this is important in terms of refusing the extradition request.
This principle aims to prevent the same person from being tried or punished again for the same act. However, what matters here is whether the previous decision truly concerns the same act. Even if the name of the offense is different, if the event, victim, date, act, and legal subject are the same, this matter may be raised in the extradition defense.
Human Rights Risk and Extradition
In extradition files, not only the existence of the offense but also the treatment the person will face in the requesting state is important. If there is a risk of torture, ill-treatment, punishment incompatible with human dignity, lack of a fair trial, or discriminatory prosecution, the extradition request may be refused.
For such allegations to be effective, they must be made concrete. Prison conditions in the requesting country, access to an independent court, the right of defense, allegations of political pressure, health conditions, and the individual situation of the person must be evaluated together.
In particular, personal circumstances such as serious illness, advanced age, family ties, living in Turkey for a long time, or the situation of children may also be important in terms of the proportionality of the extradition decision.
Is a Red Notice a Condition for Extradition?
A Red Notice may be connected to the extradition process; however, it is not an extradition decision by itself. According to INTERPOL, a Red Notice is a request made to law enforcement authorities to locate a person and provisionally apprehend them for the purpose of extradition, surrender, or similar legal action. INTERPOL also explicitly states that a Red Notice is not an international arrest warrant.
Therefore, the apprehension in Turkey of a person who is subject to a Red Notice does not mean that the person will automatically be surrendered to a foreign state. In Turkey, extradition proceedings are also conducted, and the court evaluates whether the extradition conditions exist.
In files involving a Red Notice, the following matters should especially be examined:
- The arrest warrant underlying the notice
- The criminal allegation submitted by the requesting country
- The equivalent of the act under Turkish law
- Whether the extradition documents arrived within the prescribed period
- Whether provisional arrest is proportionate
- Whether there is a political offense or human rights risk
- Whether the notice complies with INTERPOL rules
Provisional Arrest and Judicial Control
During the extradition process, a provisional arrest decision may be issued against the person. However, arrest is not a measure that is applied automatically. The court must evaluate together the suspicion of flight, the nature of the alleged offense, the status of the extradition documents, fixed residence, family ties, and health condition.
Judicial control measures may also be applied instead of arrest. Within this scope, measures such as a ban on leaving the country, an obligation to report and sign at certain intervals, residence at a specific address, or security may come into question.
In extradition files, the proportionality of the arrest measure is particularly important. In this process, which directly affects the person’s liberty, it may be necessary to file an effective objection against the provisional arrest decision.
Competent Court in Extradition Proceedings
In Turkey, the high criminal court of the place where the person is located is competent to decide on the extradition request. If the person’s location is not known, jurisdiction is evaluated according to the relevant legal regulations.
The high criminal court examines whether the extradition request is admissible. In this examination, the court evaluates together the documents of the requesting state, the person’s defense, the nature of the offense, grounds for refusal, and fundamental rights risks.
Even if the court finds the extradition request admissible, this decision does not mean that the person will be surrendered immediately. In the extradition process, the administrative approval and surrender stage may also come into question after the judicial stage.
How Does the Extradition Process Work?
The extradition process generally consists of the following stages:
- Preparation of the extradition request by the foreign state
- Transmission of the request to Turkey through diplomatic channels or the central authority
- Preliminary examination by the Ministry of Justice
- Requesting additional information or documents if any documents are missing
- Sending the file to the competent Chief Public Prosecutor’s Office
- Conducting extradition proceedings before the high criminal court
- The court deciding whether the extradition request is admissible
- Evaluation of legal remedies against the decision
- If the acceptance decision becomes final, carrying out the administrative approval process
- Carrying out surrender procedures
According to the explanations of the Ministry of Justice, in extradition procedures, in addition to Law No. 6706, bilateral or multilateral treaties in force with the relevant states are taken into account; in cases where there is no treaty, international customary law and the principle of reciprocity are considered.
Are Deportation and Extradition the Same Thing?
Deportation and extradition are not the same legal institution. Deportation is an administrative procedure concerning the removal of a foreigner from Turkey. Extradition, on the other hand, is a special judicial cooperation process in which a foreign state requests the surrender of a person for the purpose of a criminal investigation, prosecution, or enforcement of a final conviction.
While the extradition process continues, deportation of the person is subject to special rules. Law No. 6706 provides that a foreigner cannot be deported during the extradition process without obtaining the opinion of the Central Authority. In addition, deportation cannot be carried out to the state whose extradition request has been refused without obtaining the opinion of the Central Authority.
Therefore, if there is a deportation decision, restriction code, administrative detention, or residence permit issue in extradition files, applications under foreigners law and administrative law must also be evaluated together with the extradition process.
Lawyer Support in Extradition
Extradition files directly affect personal liberty and often require swift action. Therefore, criminal law, international judicial cooperation, human rights law, and foreigners law must be evaluated together in the extradition process.
An extradition lawyer or Interpol lawyer may provide legal support on the following matters:
- Examining the conditions of the extradition request
- Evaluating Red Notice and diffusion message records
- Objecting to the provisional arrest decision
- Requesting judicial control measures
- Presenting a defense before the high criminal court
- Putting forward the reasons requiring refusal of the extradition request
- Submitting human rights and ill-treatment risks to the file
- Following deportation, restriction code, and administrative detention procedures
Early legal intervention is important in extradition files. This is because the person’s apprehension, provisional arrest, waiting for foreign state documents, and court process may develop within a short time.
Frequently Asked Questions
What is extradition?
Extradition is the legal process concerning the surrender, under certain conditions, of a person who is subject to an investigation, prosecution, or conviction in a foreign country to the requesting state.
What are the basic conditions for extradition?
A duly submitted extradition request, dual criminality, an extraditable offense, absence of a statute of limitations obstacle, the act not being of a political offense nature, absence of human rights risk, and the person not being a Turkish citizen are among the basic conditions.
Can a Turkish citizen be extradited to a foreign country?
As a rule, no. According to Article 38 of the Constitution, except for obligations required by being a party to the International Criminal Court, a citizen cannot be surrendered to a foreign country due to an offense.
Does a Red Notice mean an extradition decision?
No. A Red Notice is an international notification intended to locate the person and provisionally apprehend them within the scope of the extradition process. It is not, by itself, an international arrest warrant or an extradition decision.
In which cases is an extradition request refused?
An extradition request may be refused in cases such as Turkish citizenship, political offense, purely military offense, statute of limitations, amnesty, a previous decision for the same act, risk of torture or ill-treatment, death penalty, or possibility of a punishment incompatible with human dignity.
Can arrest occur during the extradition process?
Yes. If the conditions exist, provisional arrest may be applied. However, arrest must be proportionate, and it must be evaluated whether lighter measures such as judicial control would be sufficient.
Does deportation replace extradition?
No. Deportation is an administrative procedure, whereas extradition is a criminal judicial cooperation process. While the extradition process continues, deportation procedures are subject to special rules.
References
[1] Law No. 6706 on International Judicial Cooperation in Criminal Matters.
[2] Republic of Turkey Ministry of Justice, Directorate General for Foreign Relations and European Union – Legal Bases of the Extradition Procedure.
[3] Constitution of the Republic of Turkey, Article 38.
[4] INTERPOL – Red Notices.
