I. INTRODUCTION

In this study, the provisions regarding the judicial aspect of extradition regulated in Articles 10 to 22 of the Law No. 6706 on International Judicial Cooperation in Criminal Matters (Law) will be examined, and the decisions of the Constitutional Court (AYM) and the Court of Cassation on the subject will be evaluated.

In practice, it is observed that the extradition proceedings stipulated in Law No. 6706 and the provision stipulated in Article 13 of the Turkish Criminal Code No. 5237 stipulating that Turkish law shall be applied in the event that the crime listed in the catalogue is committed by a foreigner or a citizen in a foreign country are not operated correctly, and that both an extradition request is submitted to the heavy criminal court by the chief public prosecutor's office and an indictment is issued in accordance with Article 13 of the TCC within the scope of the information, documents and evidence attributed to the accused abroad and sent to the Republic of Turkey within the scope of the extradition request.

However, it should not be ignored that Article 9 of the European Convention on Extradition (ECCPR) titled "Non bis in idem" states that the principle of "no more than one trial for the same act" shall be observed within the scope of the ECCPR, and that the Turkish judicial authorities should operate one of the two processes, in other words, subjecting the foreigner to extradition proceedings for a crime allegedly committed abroad and at the same time being tried in the Republic of Turkey pursuant to Article 13 of the TCC would constitute a violation of the principle mentioned above and protected in Article 9 of the ECCPR would be contrary to the principle mentioned above and protected under Article 9 of the SIDAS.

II. GENERAL PROVISIONS (Art.1 to Art.6 of the Law)

Articles 1 to 6 of the Law provide for "General Provisions" to be applied to the extradition process and proceedings. Articles 3, 4 and 5, which affect the extradition proceedings and the judicial aspect of the extradition process, should be analyzed for our study.

Regarding the separation of the judicial and administrative aspects of the extradition process, Article 3/4 of the Law stipulates that "The Central Authority may accept the conditions put forward by States or provide the requested guarantees, except for matters falling within its jurisdiction. The conditions accepted or guarantees given by the Central Authority shall be binding on the judicial authorities." While the Central Authority undertakes the main task regarding the administrative aspect of the extradition process, the independence and impartiality of the judicial authorities protected under Article 138 of the Constitution in extradition proceedings is not abandoned.

Article 5 of the Law stipulates that "In cases where there are no provisions in this Law and other laws, the provisions of the Code of Criminal Procedure dated 4/12/2004 and numbered 5271 shall be applied in the fulfillment of judicial cooperation requests", and that the Criminal Procedure Code shall be applied in cases where there are no special provisions in the Law.

As Article 5 of the Law refers to the Code of Criminal Procedure No. 5271, since the Code of Criminal Procedure will be applied in cases where there is no provision in the Law No. 6706, the rights granted by the Code of Criminal Procedure to suspects and defendants in matters related to the right to defense counsel, the right to an interpreter and procedural safeguards shall also be enjoyed by those whose extradition is requested in the same way.

According to Article 2/1-b of the Law, the Central Authority is the Ministry of Justice, and according to subparagraph (a) of the same paragraph, judicial authority refers to "courts, judgeships and prosecutor's offices and other authorities exceptionally authorized by law to conduct criminal investigations, and the authorities specified by states in their declarations to international treaties."

Article 4 of the Law regulates the circumstances under which foreign states' requests for judicial cooperation may be rejected. The grounds for refusal listed in this article may be taken into account by both judicial and administrative authorities.

Article 4/ç of Law No. 6706 stipulates that requests for judicial cooperation shall be rejected in the event that "the requesting State does not have basic guarantees regarding the right to defense", and Article 3/1 of Protocol No. 2 to the European Convention on Extradition to which we are bound states that "Where one Contracting Party requests the extradition of a person from another Contracting Party for the execution of a conviction or detention order made in absentia, the requested Party shall/1 stipulates that "Where a Contracting Party requests the extradition of a person from another Contracting Party for the execution of a conviction or an arrest warrant issued in absentia, the requested Party may refuse the extradition request on this ground if it is of the opinion that in the investigation leading to the decision, the minimum rights of defense which should be afforded to a person accused of a crime are not recognized.",

Article 5 of Law No. 6706 stipulates that "In cases where there are no provisions in this Law and other laws, the provisions of the Criminal Procedure Law dated 4/12/2004 and numbered 5271 shall be applied while fulfilling judicial cooperation requests." According to the Criminal Procedure Code, a person who has not been interrogated according to the Criminal Procedure Code who has not exercised his/her right to defense by being present in person at the trial cannot be convicted, even Article 193 of the Criminal Procedure Code/With the latest amendment made in Article 20 of the Law No. 7445, it is seen that a decision of non-prosecution or a security measure, let alone a conviction, cannot be imposed in the absence of the accused.

In light of the above-mentioned legislation, will an extradition request be deemed admissible for a person who has been convicted in a foreign country without taking his/her defense before a court/judge?

In our opinion; in the finalized trial in a foreign country, in cases where the person whose extradition is requested has never attended the hearings, the defense counsel has attended the hearings on behalf of the person whose extradition is requested, but the person whose extradition is requested has not been able to exercise his/her right to defense in accordance with the principles of "attendance at the hearing", "face-to-face" and "directness" within the scope of the right to a fair/honest trial, his/her defense has not been taken from the country where he/she is located by requesting international judicial cooperation in criminal matters, or his/her extradition has not been requested while the trial is ongoing, the extradition request should be found inadmissible pursuant to Article 4/ç of Law No. 6706 the extradition request must be found inadmissible. The fact that the extradited person's statement is taken outside the court in the extradition requesting country, for example, at the prosecutor's office or at the police force, does not mean that the principles of "attendance at the hearing", "face-to-face" and "directness" are complied with, and will not make the extradition of the foreigner possible.

In the decision of the 11th Criminal Chamber of the Court of Cassation dated 16.12.2021 and numbered 2021/39955 E. and 2021/12699 K.; "According to Articles 3/3 and 4/ç of the Law No. 6706 on International Judicial Cooperation in Criminal Matters and Article 3, paragraph 1 of Additional Protocol No. 2 to the 'European Convention on Extradition' to which the Republic of Albania, which requested extradition, and our country are parties According to paragraph 1 of Article 3 of Additional Protocol No. 2 to the 'European Convention on Extradition' to which the Republic of Albania and our country are parties; 'Where a Contracting Party requests the extradition of a person from another Contracting Party for the execution of a conviction or an arrest warrant issued in absentia, the requested Party may refuse extradition on this ground if it is of the opinion that in the investigation leading to the decision, the minimum rights of defense that should be afforded to a person accused of a crime have not been recognized'.

If there is any doubt as to whether the person whose extradition is requested has been convicted in the extradition requesting country without taking his/her defense in the presence of the extradition requesting country, it will be necessary to request the Central Authority to make the necessary correspondence to clarify this issue.

In this regard, the decision of the 9th Criminal Chamber of the Court of Cassation dated 05.04.2023, numbered 2022/16772 E. and 2023/1996 K.; "2. It is not understood from the extradition request and its annexes issued by ... judicial authorities about ... nationality, born on 20.11.1985, ... whether the conviction sentence against the said person was given in absentia or after his defense was taken; if the decision was given without taking his defense, it was found unlawful not to take into consideration that a guarantee can be requested from the ... authorities in accordance with Articles 4/ç and 3/3 of Law No. 6706 that he will be retried by granting the right to defense if he is extradited. In accordance with Articles 4/ç and 3/3 of Law No. 6706, it has been found unlawful not to take into consideration that a guarantee can be requested from the ... authorities." and a decision of reversal has been made.

In the case subject to the above-mentioned decision of the 9th Criminal Chamber of the Court of Cassation, it is understood that there was a doubt as to whether the defendant's defense was taken in the trial in which he was convicted (in the country where extradition was requested), and therefore the decision to accept extradition was reversed without clarifying this issue.

In the decision of the 9th Criminal Chamber of the Court of Cassation dated 05.04.2023 and numbered 2022/16772 E. and 2023/1996 K.; "It was found unlawful not to take into consideration that a guarantee can be requested from the ... authorities pursuant to Articles 4/ç and 3/3 of the Law No. 6706.", it was stated that, as a rule, the extradition of the foreigner whose defense is not taken before the court cannot be decided, and pursuant to Article 3/3 of the Law No. 6706/3 of Law No. 6706, it is stated that the extradition should be evaluated after the foreigner is retried in the country requesting extradition for the same act and a guarantee is obtained that he will be heard before the court.

III. REFUNDS AND CIRCUMSTANCES WHERE REFUNDS CANNOT BE ACCEPTED (Art. 10, Art. 11 of the Law)

According to the last paragraph of Article 38 of the Constitution and Article 11/1-a of the Law, a Turkish citizen cannot be extradited to a foreign state. The exception to this rule is "obligations required by being a party to the International Criminal Court". If there is a dispute as to whether the person whose extradition is requested is a Turkish citizen or not, this preliminary issue should be resolved first pursuant to Article 218/1 of the Criminal Procedure Code or the case filed/to be filed before the competent administrative court should be made a matter of waiting. Otherwise, the principle of "non-extradition of a citizen" guaranteed by the Constitution will be violated.

According to the Law, extradition may be carried out for the execution of a finalized sentence in a foreign country or for the enforcement of an ongoing investigation or prosecution in a foreign country. In the event that there is no finalized conviction decision against the person whose extradition is requested and the investigation or prosecution is ongoing, the person will benefit from the presumption of innocence, and the Turkish judicial authorities will have to pay maximum attention to the rights of the person whose extradition is requested, such as trial within a reasonable time. In the file under investigation or prosecution in the foreign country, the upper limit under Turkish law must be one or more months of imprisonment, and in terms of finalized sentences, at least four months of imprisonment.

According to paragraph 64 of the Constitutional Court's application dated 22.02.2022 and numbered 2018/19302 Samira Alakbarova; "In order to determine the degree of care to be taken, the importance of the form of extradition should not be overlooked. Unlike extradition for the execution of a sentence, in the case of extradition for the extradition requesting State to try the suspect, as in the concrete case, the detained person is considered innocent while the criminal proceedings are ongoing. More precisely, at this stage, the possibility of using the right of defense during the criminal proceedings to prove the innocence of this person is very limited. It is not possible for the state requested to extradite the suspect to examine the merits of the case. For these reasons, serious care must be taken by the extradition requesting State to protect the rights of the person concerned, to ensure the proper functioning of the extradition procedure and to ensure that the person is tried within an appropriate period of time".

According to the Constitutional Court's decision, the degree of care to be taken in extradition proceedings will vary according to the "form of extradition". The form of extradition refers to whether the extradition request is based on a final judgment of conviction or on an investigation or prosecution file. If the file subject to the extradition request is an investigation or prosecution file, the person whose extradition is requested will be deemed innocent.

Especially if the file is in the investigation stage in the foreign country, if there is a confidentiality order in the file or if the acts and evidence subject to the accusation are not clear, it will be very difficult for the person whose extradition is requested to defend himself in the extradition proceedings. For the same reasons, it will also not be possible for the court conducting the extradition proceedings to examine the file subject to extradition and reach an opinion on the merits. Taking into account the disadvantageous situation of the person whose extradition is requested in terms of the file under investigation or prosecution in the foreign country, the Constitutional Court stated that "the State to which extradition is requested must take serious care to protect the rights of the person concerned, to ensure the proper functioning of the extradition procedure and to ensure that the person is tried within an appropriate period of time".

We are of the opinion that the extradition case filed by the competent public prosecutor's office on the basis of the extradition request, in which no concrete information, documents or evidence is sent by the extradition requesting state, and only the incident narrative is included, cannot be found acceptable. The state requesting extradition, even if the file is at the investigation stage, must at least show what the acts alleged to have been committed by the person whose extradition is requested, and on the basis of what concrete data it is concluded that these acts were committed by the person. In the case files finalized in the foreign country, there is more evidence that the court conducting the extradition proceedings may have the opportunity to examine, because here the evidence collection and evaluation phase has been completed and it is easier to see on which evidence the defendant was convicted and to reach a decision on the extradition request accordingly. For cases that are still under investigation or pending trial, there will be difficulties in identifying and proving evidence that can be used as a basis for extradition. The judicial authority of the country examining the extradition request is not automatically bound by the extradition request; the preparation of an extradition request for the file sent for the initiation of the extradition process after the initial examination completed by the Ministry of Justice and the preparation of an extradition request in order to be subject to the extradition case by the relevant public prosecutor's office and sending its annexes to the court that will conduct the extradition proceedings is a kind of investigation-like preparation process that must be completed, and the extradition request prepared at the end of this process does not bind the court.

Questions may arise as to whether the heavy criminal court conducting the extradition proceedings will go into the merits of the case, whether it will evaluate the evidence, whether it will conduct only a formal trial, and to what extent it will examine the extradition request and its annexes.

When the decisions of the Court of Cassation on the subject are examined, it is understood that in the extradition request document from a foreign country, the acts directed against the person whose extradition is requested must be concretized, the evidence and sub-documents must be sent to the Republic of Turkey, the conviction sentence finalized abroad and subject to the extradition request and its justification must be examined and evaluated in detail by the heavy criminal court conducting the extradition proceedings, and it is unthinkable for the Turkish Judicial Authorities to make an acceptance decision without any questioning about the content of the extradition request from a foreign country.

In the decision of the 10th Criminal Chamber of the Court of Cassation No. 2023/7497 E. 2023/4519 K.; "In order to explain and concretize where, when and how the acts attributed to the person whose extradition is requested within the scope of the criminal investigation subject to the extradition request dated 15.02.2023 and numbered TU22NZ9693 by the Kocaeli 6th Assize Court within the scope of the extradition request dated 15.02.2023 and reference numbered TU22NZ9693, detailed information regarding the evidence revealing the relation of the person whose extradition is requested with the crimes attributed to him was not brought into the file, and only the 15.02.2023 dated 15.02.2023 and reference number TU21NZ1758" is considered as a reason for reversal.

In the decision of the 10th Criminal Chamber of the Court of Cassation dated 08.03.2021 and numbered 2020/18619 E. and 2021/3189 K. in the same direction; it is understood that a decision of reversal was made considering that "pursuant to paragraph 2 of Article 18 of the Law No. 6706 on International Judicial Cooperation in Criminal Matters, the evidence revealing the relationship of the extradited person with the crime for which he was convicted was not transmitted in a clear and detailed manner".

In the file subject to the decision of the 10th Criminal Chamber of the Court of Cassation dated 08.03.2021; it is understood that a decision of reversal was made on the grounds that the trial held in the extradition requesting state was finalized, but the evidence revealing the extradition requestee's relation to the crime for which he was convicted was not sufficient, therefore the extradition request should be found inadmissible.

In this case; it should be observed that the extradition request and its annexes sent from the foreign country should not restrict the right to defense, should contain sufficient information, documents and evidence, and that the extradition request will be found inadmissible if it is unclear what, where, how and with whom the "acts" attributed to the person whose extradition is requested are committed.

Considering the provision in Article 10/4 of the Law, "In case of extradition, the person may only be tried for the crimes that constitute the basis of the extradition decision or the sentence that the person has been convicted of may be executed.", it is understood that in the case of extradition of the foreigner, if the foreign state requesting extradition does not provide the assurance that the foreigner will not be tried for crimes other than the crimes subject to the extradition request, it is understood that extradition is not possible within the framework of Article 10/4 of the Law and the detached decisions of the Court of Cassation.

Since Article 10/4 of the Law is seen as a prerequisite for extradition, and it is seen that extradition cannot be ordered without the guarantee mentioned in the paragraph, the legal basis of the guarantee is found in Article 3/3 of the Law. According to this paragraph; "The fulfillment of a foreign state's request for judicial cooperation may be conditioned or secured by the Central Authority".

The prohibition of "prosecution for other crimes in case of extradition", which is known as "particularity" in practice, is within the scope of the Central Authority's duty and authority pursuant to Article 3/3 of the Law. Considering the decisions of the Court of Cassation below, this guarantee must be obtained when the extradition request reaches the Central Authority. In the event that the said security is taken after the extradition decision is rendered by the Assize Court, it will not be possible for the Court of Cassation to examine whether the security was taken or not. However, since the Court of Cassation has made this assessment, it is understood that the Central Authority should take the guarantee before the extradition proceedings commence or during the judicial process.

According to the decision of the 11th Criminal Chamber of the Court of Cassation dated 06.03.2023, numbered 2023/730 E. and 2023/1240 K. According to the decision of the 11th Criminal Chamber of the Court of Cassation dated 06.03.2023 and numbered 2023/1240 K.; "In the fourth paragraph of Article 10 of the Law No. 6706, it is stipulated that 'in case the person is extradited, he can only be tried for the crimes that constitute the basis of the extradition decision or the sentence he has been convicted of can be executed', and according to the rule of particularity regulated in the first paragraph of Article 14 of the SIDAS, it is understood that there is no commitment by the requesting Republic of Azerbaijan that if the person is extradited, he will not be tried for other crimes or the sentence he has been convicted of will not be executed; it is seen that, in accordance with the fourth paragraph of Article 10 of the Law No. 6706 and the first paragraph of Article 14 of the SİDAS, it is considered as a reason for reversal to establish a verdict without stating that in case of extradition, the person can only be tried for the crimes that constitute the basis of the extradition decision or that the sentence he has been convicted of can be executed."

In the decision of the 10th Criminal Chamber of the Court of Cassation dated 08.03.2021 and numbered 2020/18619 E. and 2021/3189 K. on the same subject; "Since Article 10/4 of the Law No. 6706 stipulates that 'in case of extradition, the person can only be tried for the crimes that constitute the basis of the extradition decision or the sentence he has been convicted of can be executed' and since it is understood that there is no commitment in the extradition request of the Federal Republic of Brazil that the named person will not be tried for other crimes or the sentence he has been convicted of will not be executed if he is extradited", a decision of reversal was given.

According to the decision of the 11th Criminal Chamber of the Court of Cassation dated 06.03.2023 and numbered 2023/730 E. and 2023/1240 K.; "In the fourth paragraph of Article 10 of the Law No. 6706, it is stipulated that 'in case the person is extradited, he can only be tried for the crimes that constitute the basis of the extradition decision or the sentence he has been convicted of can be executed', and according to the rule of particularity regulated in the first paragraph of Article 14 of the SIDAS, it is understood that there is no commitment by the requesting Republic of Azerbaijan that if the person is extradited, he will not be tried for other crimes or the sentence he has been convicted of will not be executed; it is seen that it is considered as a reason for reversal to establish a judgment without stating that the person can only be tried for the crimes that constitute the basis of the extradition decision or that the sentence he has been convicted of can be executed in case of extradition, in accordance with the fourth paragraph of Article 10 of the Law No. 6706 and the first paragraph of Article 14 of the SİDAS.[1] .

In the decision of the 10th Criminal Chamber of the Court of Cassation dated 08.03.2021 and numbered 2020/18619 E. and 2021/3189 K. on the same subject; "Since Article 10/4 of the Law No. 6706 stipulates that 'in case of extradition, the person can only be tried for the crimes that constitute the basis of the extradition decision or the sentence he has been convicted of can be executed' and since it is understood that there is no commitment in the extradition request of the Federal Republic of Brazil that the person named in the extradition request will not be tried for other crimes or the sentence he has been convicted of will not be executed if he is extradited", the decision was reversed.

In practice, it is seen that Article 10/4 of the Law is considered as a precondition for extradition, and that an extradition decision cannot be made without the guarantee mentioned in the paragraph, and the legal basis of the guarantee is found in Article 3/3 of the Law. According to this paragraph; "The fulfillment of a foreign state's request for judicial cooperation may be conditioned or secured by the Central Authority".

Article 11/4 of Law No. 6706 stipulates that: "The extradition request may not be accepted if the extradition would cause the person or his/her family to suffer disproportionately to the gravity of the act, due to the personal circumstances of the person whose extradition is requested, such as the fact that he/she has not reached the age of eighteen at the date of the request, has been in Turkey for a long time or is married."

Article 11/4 states that extradition will be refused if "extradition would cause the person or his/her family to suffer disproportionately to the gravity of the act", and which personal circumstances will be taken into account in the assessment of "proportionality" are listed in the text of the article in a non-exhaustive manner, In many decisions of the Court of Cassation, it has been stated that the conditions of "being in Turkey for a long time" and "being married", which are given as examples in Article 11 of the Law, include the word "or", and that even one of the conditions is deemed sufficient for the extradition request to be inadmissible for the aforementioned reason, and that in many decisions of the Court of Cassation, persons who are resident in the Republic of Turkey and have families and children are deemed inadmissible under Article 11 of the Law. It is understood that the court has decided that it cannot be refunded pursuant to 11/4.

In this regard, the decision of the 10th Criminal Chamber of the Court of Cassation dated 20.02.2023 and numbered 2021/17787 E. and 2023/1251 K.; "In the investigation conducted by the law enforcement; the person whose extradition is requested ...... has been residing in İnegöl district of Bursa province since 2007, is married, has a son and two daughters, lives with his son, his daughters are married and both daughters have three children each, the aforementioned is a resident in Turkey and has acquired a fixed residence, since it is understood that he has been living with his wife, children and grandchildren for a long time; it has been decided to reject the extradition request of the judicial authority of Kazakhstan regarding the crime of trafficking in narcotic substances (...)

An investigation was initiated against ..., a citizen of Kazakhstan, for the offense of drug trafficking, and the said person, who was sought for extradition to the country of Kazakhstan based on the arrest warrant dated 08.11.2006 issued by the judicial authorities of Kazakhstan, was captured in Bursa province İnegöl district on 03.03.2017 and arrested on 04.03.2017; Kazakhstan judicial authorities through the Ministry of Justice of the Republic of Turkey by the judicial authorities of the Republic of Turkey, "Judicial Assistance in Criminal Matters and Extradition Agreement between the Republic of Turkey and the Republic of Kazakhstan" in accordance with the extradition requested, İnegöl Chief Public Prosecutor's Office on the request for extradition as a result of the trial held on the request for extradition of the non-Turkish citizen, but has a residence permit in Turkey ... In the examination of the verdict given about ...; "it was decided to approve the decision of the court of first instance that the extradition request was not acceptable due to the personal and family situation of the person whose extradition was requested[2] .

 

IV. TEMPORARY DETENTION (Article 14 of the Law)

Law No. 6706 provides that provisional arrest, which is a protection measure specific to the Law No. 6706, may be applied upon the arrest of the foreigner before the extradition request by the foreign country is forwarded to the Central Authority. Provisional arrest is possible with the decision of the criminal judge of peace within 24 hours after the arrest and is applied for a maximum of 40 days. Within this period, the extradition requesting state must forward the extradition request and all relevant documents to the Central Authority, at the end of which the provisional arrest or judicial control must be terminated immediately.

The maximum period of 40 days shall not apply to arrest and judicial control measures to be applied after the extradition request has been sent and the extradition proceedings have started before the heavy criminal court. Provisional arrest is not a prerequisite for the commencement of extradition proceedings, and the foreigner who is not under provisional arrest or judicial control can be tried in the process that starts with the extradition request sent directly to the Central Authority by the foreign state.

Pursuant to Article 14/1 of the Law, strong suspicion of a crime shall be sought for the application of provisional arrest. According to Article 14/2 of the Law, the request of the foreign state is not required if "the offense requires a prison sentence of not less than three years under Turkish law". According to Article 14/3 of the Law, extradition based on consent is possible during the provisional arrest phase before the criminal judge of peace. In addition, extradition based on consent is carried out within the scope of the procedure set out in Article 17 of the Law, when the extradition request reaches the Central Authority and the extradition proceedings commence before the heavy criminal court. In our opinion, in the extradition procedure based on consent under Article 14/3 of the Law, i.e. before a criminal judge of peace, the rules set out in Article 17 of the Law should be followed.

V. DUTIES AND AUTHORITY (Article 15 of the Law)

Article 15/1 of the Law stipulates that "The heavy penal court in the place where the person is located is authorized to decide on the extradition request." It should be determined what should be understood by the concept of "the place where the person is located".

Although there is a consensus in practice that the phrase "the place where the person is found" should be understood as "the place where the person is arrested", it can also be argued that the public prosecutor's office where the foreigner resides is authorized. Article 15/2 of the Law stipulates that the chief public prosecutor's office shall request the heavy criminal court to decide on the extradition request. However, although the phrase "the place where the person is located" can also be understood as the place of residence or the place where the person actually resides, the place where the person is arrested or summoned for extradition is accepted from this phrase and acted accordingly.

VI. EXECUTION OF DETENTION AND OTHER PROTECTION MEASURES (Art. 16 of the Law)

As we have stated under the heading "Provisional Arrest", the person under provisional arrest or judicial control must be released at the end of 40 days. Pursuant to Article 16 of the Law, this time limit does not apply to the protection measures to be applied after the extradition proceedings commence before the heavy criminal court. The one-year period set out in Article 16/3 of the Law is valid between the finalization of the extradition decision and the implementation of this decision with the "proposal of the Minister of Justice and the approval of the President of the Republic (...) upon the opinion of the Ministries of Foreign Affairs and Interior" pursuant to Article 19 of the Law. Apart from that, the maximum periods of detention and judicial control should be calculated according to Article 102 of the Criminal Procedure Code entitled "Time to be spent in detention".

According to Article 16/4 of the Law; "The total period of detention shall not exceed the period of execution of the sentence that the person may receive or has been convicted for the offense subject to the extradition request." In accordance with the provision, the foreign state must calculate the execution of the sentence that the extradited person may receive or has been convicted of, and for this purpose, the foreign state must request documents from the foreign state regarding the execution of the sentence.

VII. RETURN BASED ON CONSENT and RETURN PROCEEDINGS (Art. 17, Art. 18 of the Law)

Article 17 of the Law regulates extradition based on consent and Article 18 regulates extradition proceedings. In Article 18 of the Law, titled extradition proceedings, it is not possible to find an answer to our question in section (II) of our study titled "General Provisions" regarding the extradition proceedings: "Whether the heavy criminal court conducting the extradition proceedings will enter into the merits of the case, whether it will evaluate the evidence, whether it will conduct only a formal trial, to what extent it will examine the extradition request and its annexes (...)".

Article 18/1 of the Law states that extradition proceedings will be conducted "in accordance with the provisions of this Law and international treaties to which Turkey is a party". Therefore, it is indisputable that all rights and guarantees provided to the accused within the scope of the right to a fair/honest trial will be observed in extradition proceedings.

 

VIII. THE CONNECTION OF THE RETURN PROCESS WITH FOREIGNERS LAW AND DEPORTATION PROCESSES AND THE ROLE OF THE CENTRAL AUTHORITY (Art.12, Art.13, Art.19, Law No. 6458 on Foreigners and International Protection)

In cases where the person whose extradition is requested has applied for international protection to the Directorate of Migration Management, extradition is not possible until this application is evaluated and concluded, and this is clearly stated in the precedent decision of the Court of Cassation. Even if the foreigner's application is rejected, the outcome of the lawsuit to be filed in administrative jurisdiction against this decision should be awaited. As a matter of fact, in the decision of the 1st Criminal Chamber of the Court of Cassation numbered 2016/1692 E. and 2016/3134 K.; "Failure to wait for the outcome of the lawsuit filed before the administrative court regarding the rejection of the international protection request or to consider that justification should be provided in a way that would allow the Supreme Court of Appeals to review this issue" was considered as a reason for reversal.

In other words, in cases where the deportation process to be applied to the foreigner for the reasons set out in Article 54 of Law No. 6458 is established due to the fact that it is an "easier and faster" process compared to the extradition proceedings regulated under Law No. 6706, the deportation process to be applied to the foreigner for the reasons set out in Article 54 of Law No. 6458 is established due to the fact that it is an "easier and faster" process compared to the extradition proceedings regulated under Law No. 6706. In the case where the deportation process to be applied to the foreigner for the reasons set out in Article 54 of Law No. 6458 is an "easier and faster" process compared to the extradition proceedings regulated in Law No. 6706,

In Administrative Law, the use of a procedure prescribed for a purpose other than the purpose stipulated in the legislation is defined as procedural diversion, this situation cripples the procedure in terms of the purpose element, and it can be said that the deportation procedure applied to the foreigner will constitute illegality in terms of the purpose element of the procedure, considering that it is used to circumvent and render ineffective the extradition proceedings procedure, that is, outside the purpose stipulated in the legislation.

IX. THE RELEVANCE OF THE INTERPOL RED NOTICE TO THE EXTRADITION PROCESS

In the decision of the 15th Criminal Chamber of the Court of Cassation dated 19.03.2018 numbered 2018/1366 E. and 2018/1800 K.; it was stated that "since it was reported that the named person was not wanted at the international level and therefore the extradition process was inconclusive, it should be decided that there is no need to extradite the defendant in line with the stated reasons and documents".

It is foreseen/assumed that the red notice issued by States by applying to Interpol may not always be in accordance with fundamental rights and freedoms and equity; therefore, according to the Regulation consisting of 50 articles and described as the "Interpol Constitution"; red notice requests that are arbitrary, groundless, unsupported by concrete evidence, political in nature, violating fundamental rights and freedoms will be rejected,

Red notice requests that do not meet these conditions will be lifted/corrected by an application to the Interpol Commission by the person subject to the red notice or his/her representative (Articles 2, 3, 33 of the Interpol Main Regulation)[3] , and individuals and their representatives are also granted the right to access the entire file content subject to the red notice (Article 29 of the Interpol Main Regulation)[4] ,

Within the framework of the rights recognized above, an "access request" can be sent to the official address and e-mail address of Interpol to provide the foreigner/representative with all the information and documents about the red bulletin said to be issued about the foreigner,

Once all the information and documents have been sent by Interpol in response to the access request, Interpol may apply for the red notice that does not meet the above-mentioned conditions to be deleted,

Within the scope of the application, it may be argued that the extradition request against the foreigner is based on political reasons and/or violates fundamental rights and freedoms, and that this constitutes sufficient grounds for the lifting/deletion of the red notice according to the Interpol Main Regulation.