The opinion of the court was delivered by: HUGHES
This matter comes before the Court upon the Government's complaint seeking the extradition of Mehmet Semih Sidali for the rape and murder of a fifteen-year-old girl. Among other arguments, Mr. Sidali claims that in view of two acquittals in the lower courts in the Republic of Turkey, his extradition would constitute a great injustice. The Court conducted an extradition hearing on September 20, 1995, and has reviewed the written submissions of the parties. For the following reasons, the Court will issue a certificate of extraditability.
On April 17, 1970, Dursun Eskin, who was staying with the Sidali family in Turkey, was brutally raped and murdered. Thereafter, there were at least two separate findings of no probable cause for arrest by Turkish Magistrates when the local prosecutor sought to charge Mr. Sidali with the crimes. Afterward, according to Turkish law, the victim's family petitioned for a trial. The petition was granted and a full trial on the merits was conducted. This trial culminated in an acquittal on June 7, 1972 by a 2-1 vote of a judicial panel which considered the evidence. The victim's family then secured an appeal to the Turkish Court of Appeals which remanded the case for retrial on May 28, 1973. A second judicial panel, by unanimous vote, acquitted Mr. Sidali a second time after considering the evidence on May 17, 1976.
On December 17, 1976, Mr. Sidali traveled to the Turkish capital to secure a passport for travel to the United States. He was temporarily detained pending a check to assure that there were no criminal charges against him. As a result of this check, he received not only a valid passport but also a document stating that he had been cleared of the specific crimes involved here. On December 13, 1976, the Turkish Court of Appeals, after reviewing the second acquittal, reversed that trial court and found Mr. Sidali guilty of the crimes. Mr. Sidali left Turkey on December 31, 1976. On March 29, 1977, the Turkish Court issued an absentia warrant for the arrest of Mr. Sidali.
On October 31, 1994, a complaint, seeking the extradition of Mr. Sidali from the United States to Turkey, was filed with the Court and a warrant was issued for his arrest. The basis for the complaint was the absentia warrant for Mr. Sidali's arrest issued by Turkish authorities after Mr. Sidali was convicted by the General Criminal Board of the Court of Appeals of the rape and murder of Dursun Eskin.
On November 16, 1994, Mr. Sidali was arrested by agents of the Federal Bureau of Investigation and brought before the Court. The prisoner was presented with the complaint, advised of various rights, and, without objection from the Government, afforded the legal assistance of the Federal Public Defender. After the Government requested that the prisoner be detained pending an extradition hearing, counsel for Mr. Sidali sought a continuance of the initial hearing in order to assemble evidence to be used in an application for release.
On November 18, 1994, the Court conducted a hearing during which it heard testimony of five character witnesses for Mr. Sidali, reviewed numerous letters attesting to his good character, and considered the written and oral arguments of both counsel. That same day, the Court filed a Memorandum Opinion and Order detaining Mr. Sidali and remanding him to the custody of the United States Marshal pending a full extradition hearing.
Thereafter, on January 3, 1995, counsel for Mr. Sidali filed a motion for reconsideration of the November 18, 1994 detention order, principally claiming that newly discovered information justified release pending a full extradition hearing. Mr. Sidali claimed that, contrary to assertions in the Government's affidavit supporting the complaint for extradition, the "conviction" forming the basis for the absentia warrant is not final but merely requires a new (or third) trial for Mr. Sidali on the original rape and murder charges. The Court conducted a hearing on the renewed application for release on bail on January 26, 1995.
As a result of this hearing, the Court filed a Memorandum Opinion and Order, dated January 27, 1995, finding that Mr. Sidali presented no risk of flight and had demonstrated special circumstances justifying release. The specific special circumstances that this Court found were the unique history of acquittals and the high probability of success, in that, if he were returned to Turkey he would be acquitted a third time. Thus, this Court found that Mr. Sidali's release on bail was justified. The Court imposed several conditions upon Mr. Sidali's release which were designed to insure that Mr. Sidali would not flee the jurisdiction. The Court also issued an Order on January 27, 1995 staying the Order granting bail pending appeal by the Government.
The Government appealed this Court's release order to the District Judge who found, based on the certification of Thomas A. Johnson and a 'diplomatic note' from the Turkish Embassy, dated February 17, 1995, that Mr. Sidali is not entitled to a new trial upon his return to Turkey. The District Judge also noted that these two documents were not before this Court at the time of its decision granting bail and that the fact that Mr. Sidali would not be afforded a new trial "significantly impacted on the reliability of [this Court's] findings regarding Mr. Sidali's risk of flight and probability of success. Accordingly, the District Judge vacated this Court's Order of January 27, 1995 granting bail and remanded this matter for further findings.
On April 17, 1995, upon remand, and after reviewing the same two new documents that the District Judge examined, this Court determined that Mr. Sidali will not be afforded a new trial upon his return to Turkey, but will, instead, face a severe sentence. Thus, the Court found that there was, indeed, a high risk of flight and that Mr. Sidali's probability of success was significantly diminished. Accordingly, the Court found that release on bail pending a full extradition hearing was precluded and detained Mr. Sidali.
The extradition hearing originally was set for June 26, 1995, but was adjourned to September 20, 1995, at the request of Mr. Sidali's new attorneys, who were substituted in for the Federal Public Defender on May 25, 1995.
Subsequently, this Court denied additional motions for release upon grounds of Mr. Sidali's deteriorating physical condition. Mr. Sidali had been referred for testing and treatment for complaints of rectal bleeding, hypertension, and depression by the medical director of his place of incarceration. (Exhibit C-1)
At the extradition hearing, the Court considered the various exhibits offered and admitted into evidence, the competing "expert" affidavits relating to the interpretation of Turkish law (Exhibits G-6 and S-1), and heard the testimony of Mr. Sidali, his wife, and his physician. The Court then took the matter under advisement to again consider all of the evidence presented.
Mr. Sidali argues five primary reasons why his extradition is improper. First, he asserts that the Turkish request does not seek Mr. Sidali's surrender for an extraditable offense and fails to satisfy the requirement of dual criminality. Second, he argues that the Turkish request does not present sufficient evidence to warrant extradition because Mr. Sidali was not convicted in Turkey and because the Turkish evidence does not establish probable cause. Third, Mr. Sidali claims that his extradition is precluded by the defenses under Article 3 of the Treaty on Extradition & Mutual Assistance in Criminal Matters, June 7, 1979, U.S.-Turk., Art. 3, T.I.A.S. No. 9891 [hereinafter Treaty]. Fourth, he claims that his extradition must be denied under Article 4 of the Treaty. Finally, he claims that the complaint for extradition must be denied as contrary to concepts of reciprocity and fundamental decency. Each of these arguments will be considered in turn after first discussing the authority of the Court.
In an extradition hearing, the Court's duty is to determine whether a probable cause exists that the Respondent committed the acts alleged. Spatola v. United States, 925 F.2d 615 (2d Cir. 1991). The only inquiries which the extraditing court may make are:
1) whether there is an applicable extradition treaty between the requesting and requested parties which is in full force and effect;
2) whether charges are pending against the person to be extradited in the requesting nation;
3) whether the treaty authorizes extradition for the crimes alleged to have been committed; and
4) whether there is probable cause to believe that a crime was committed and that the person to be extradited committed it.
See, Bingham v. Bradley, 241 U.S. 511, 516-17, 60 L. Ed. 1136, 36 S. Ct. 634 (1916); Gallina v. Fraser, 177 F. Supp. 856, 860 (D. Conn. 1959), aff'd, 278 F.2d 77 (2d Cir. 1960), cert. denied, 364 U.S. 851, 5 L. Ed. 2d 74, 81 S. Ct. 97 (1960).
B. RESPONDENT'S ARGUMENTS
1. The Turkish Request Does Not Seek Mr. Sidali's Surrender For An Extraditable Offense and Fails To Satisfy The Requirement of Dual Criminality
Mr. Sidali argues that Turkey has failed to demonstrate that the crime for which extradition is sought is covered by the present treaty or was covered by a previous treaty, Extradition Treaty Between the United States of America and Turkey, August 6, 1923, Art. 43 [hereinafter Lausanne Treaty]. He contends that the crime with which he is charged in the extradition documents is the crime of "homicide to conceal evidence" and that such a crime is not covered by either the current treaty or the Lausanne Treaty. See, Treaty, Art. 2; Lausanne Treaty, Art. II(1). Additionally, he argues that Turkey has failed to meet the "dual criminality" requirement. Specifically, Mr. Sidali contends that Turkey has failed to establish that the alleged crime for which extradition is sought is punishable in each country. Republic of France v. Moghadam, 617 F. Supp. 777, 784 (N.D. Cal. 1985). Respondent asserts that the United States' constitutional limitation on double jeopardy would place the alleged acts in the instant case beyond the reach of American jurisdiction, and thus, the dual criminality requirement has not been satisfied.
The Court finds that the dual criminality requirement has been satisfied because it is the "alleged acts" which must be punishable. Clearly, the alleged acts are punishable regardless of the notion of double jeopardy. The only inquiry the Court must make here is whether the alleged crime or act is punishable in each country. The answer to that question is clearly yes. The Court may not inquire into whether Mr. Sidali at this point in time, after two acquittals in Turkey, could be tried for the crime in this country.
In addition, after reviewing the Treaty itself, it is clear to the Court that "rape" and "murder" are crimes easily encompassed by its terms and the obvious intentions of both countries. A finding that " homicide to conceal evidence" falls outside the treaty would be unduly restrictive. The Treaty clearly refers to [crimes] punishable for at least a period of one year. Rape and murder fit within that description.
Accordingly, the Court finds that Turkey seeks the surrender of Mr. Sidali for an extraditable offense and that the dual criminality requirement has been satisfied.
2. The Turkish Request Does Not Present Sufficient Evidence To Warrant Extradition Because Mr. Sidali Was Not Convicted In Turkey And Because The Turkish Evidence Does Not Establish Probable Cause
Mr. Sidali argues that he was not convicted of a crime in Turkey because the December 1976 decision following Mr. Sidali's second acquittal merely annulled the judgment acquitting Mr. Sidali and did not constitute a "conviction."
Additionally, Mr. Sidali asserts that the evidence presented by the Government does not establish probable cause because he presents evidence which rebuts or explains the Turkish evidence, and thereby demonstrates that probable cause does not exist.
When an individual to be extradited has already been convicted, all that is necessary to establish probable cause is the record of the judgment of conviction. See, Spatola, 925 F.2d at 618; United States v. Clark, 470 F. Supp. 976, 978 (D. Vt. 1979); In re Edmondson, 352 F. Supp. 22, 24 (D. Minn. 1972).
Here, the Court has reviewed the actual judgment of the General Criminal Board of the Court of Appeals, analyzed the relevant Turkish law (principally Sections 325 and 326 of the Turkish Code of Criminal Procedure), and considered the written communications between the two countries in connection with this extradition request (principally the Certification and Diplomatic Note, dated 2/17/95) (Exhibit G-5). The Court has also considered the legal expert opinions offered by the Respondent and the Government. (Exhibits S-1 and G-6). The Court adopts, as more persuasive given all the ...