Application No. 17518/90
by Ayhan GEZICI
against Switzerland
The European Commission of Human Rights sitting in private
on 7 March 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G. H. THUNE
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 November 1990
by Ayhan GEZICI against Switzerland and registered on 21 December 1990
under file No. 17518/90;
Having regard to the report provided for in Rule 47 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The facts of the case, as submitted by the applicant, may be
summarised as follows:
The applicant, a Turkish citizen born in 1957, is a teacher
currently detained at Larissa prison in Greece. Before the Commission
he is represented by Mr. H. Vest, a lawyer practising at Aesch in
Switzerland.
I
According to the applicant's submissions, while still in
Turkey he was a member of the Devrimci Kurtulus Revolutionary
Liberation Movement as well as of an opposition teachers' trade
union. After his arrest in 1980 he was convicted of political
offences in 1984 and sentenced to 12 years' imprisonment, though he
was released in the same year.
In 1985 the applicant travelled to Greece where he applied for
asylum. He then stayed in the Lavrion refugee camp in Greece where he
was a member of the camp inmates' board. During this time, serious
disputes arose between the camp inmates and the camp's management.
The applicant also helped to organise protest demonstrations in the
camp.
Eventually, the applicant's request for asylum was dismissed
by the Greek authorities. As the applicant feared that he would be
expelled to Turkey, he returned illegally in 1986 to that country
where until 1989 he lived under a false name in Istanbul.
II
On 7 March 1989 the applicant entered Switzerland, where on 9
March 1989 he applied for asylum.
On 20 April 1989 the Athens Interpol Office transmitted a
request to the Swiss authorities to apprehend the applicant.
On 10 November 1989 the applicant was arrested on suspicion of
the offence of forging documents as well as on the basis of a warrant
of extradition issued by the Swiss Federal Office for Police Affairs
(Bundesamt für Polizeiwesen).
On 14 December 1989 the Greek Embassy in Berne requested the
applicant's extradition to Greece. The Embassy relied on a warrant of
arrest of the Pireus Criminal Court in Greece and on an extradition
request of the Public Prosecutor's Office at the Pireus Court of
Appeal. The applicant was suspected in particular of having committed
a bank robbery in Greece in 1987.
The applicant thereupon informed the Swiss authorities that he
objected to his extradition to Greece. He stated that at the time
when he was alleged to have committed the offences he had been in
Turkey. After 12 March 1990 the applicant underwent a hunger strike.
Meanwhile, on 2 March 1990, the Federal Office for Police
Affairs granted the request for the applicant's extradition to Greece.
The applicant then filed an administrative law appeal
(Verwaltungsgerichtsbeschwerde) with the Federal Court (Bundesgericht)
in which he complained inter alia that the Greek authorities would
eventually extradite him to Turkey. During these proceedings, the
Greek Embassy in Berne submitted a note according to which the
applicant, if extradited, would not be liable to capital punishment in
Greece.
On 3 May 1990 the Federal Court dismissed the applicant's
appeal. As to the applicant's complaint about his further extradition
to Turkey the Court found that according to Article 15 of the European
Convention on Extradition, to which both Switzerland and Greece were
parties, Greece was not permitted to extradite the applicant without
the agreement of Switzerland with regard to offences committed before
his extradition to Greece. The Court noted a statement by Amnesty
International according to which there existed a risk of further
extradition. However, the Court concluded that this statement
insufficiently considered the European Convention on Extradition in
force between the two States.
The applicant was extradited to Greece on 24 May 1990.
COMPLAINTS
1. The applicant complains of his extradition to Greece. He
fears that the Greek authorities will extradite him to Turkey where he
would immediately be arrested, detained and subjected to treatment
contrary to Article 3 of the Convention. The applicant alleges that
the Swiss, Greek and Turkish authorities have extensively cooperated
with regard to his case. He refers to a telex of the Ankara Interpol
Office to the Swiss Federal Office of Police Affairs according to
which "(the applicant has) a lot of previous convictions and is still
wanted for making him serve his 12 years imprisonment".
2. Under Article 6 of the Convention the applicant complains of
the unfairness of the extradition proceedings in Switzerland. He
refers inter alia to the fact that he could not consult the entire
case-file. Under Article 14 taken together with Article 6 of the
Convention he complains that he suffered discrimination in these
proceedings as he was financially badly off.
THE LAW
1. The applicant complains of his extradition to Greece. He
submits that the Greek authorities will extradite him to Turkey where
he will be subjected to treatment contrary to Article 3 (Art. 3) of the
Convention. This provision states:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission has constantly held that the right of an alien
to reside in a particular country is not as such guaranteed by the
Convention. However, expulsion may in exceptional circumstances
involve a violation of the Convention, for example where there is a
serious risk of treatment contrary to Article 3 (Art. 3) of the
Convention in the receiving State (see No. 12102/86, Dec. 9.5.86,
D.R. 47 p. 286).
In the present case the Commission notes that the applicant
has been extradited to Greece. However, he does not contend that
in Greece he would risk treatment contrary to Article 3 (Art. 3) of the
Convention.
Rather, his complaint is that he should not have been
extradited to Greece as the Greek authorities will further extradite
him to Turkey, where he risks treatment contrary to Article 3
(Art. 3) of the Convention.
The Commission notes in the first place the decision of the
Federal Court of 3 May 1990 according to which the applicant may not
be further extradited to Turkey with regard to offences committed
before his extradition to Greece, without the agreement of the Swiss
authorities in accordance with Article 15 (Art. 15) of the European
Convention on Extradition to which both Greece and Switzerland are
parties. There is therefore no immediate risk of the applicant being
surrendered to a third country. The applicant furthermore does not
claim that the Swiss authorities have given such consent.
Moreover, if Greece were to extradite the applicant to a third
country, as a party to the European Convention on Human Rights Greece
would have to examine whether the treatment awaiting the applicant in
the third country could give rise to an issue under the Convention.
The applicant would then be free to bring an application before the
Commission under Article 25 (Art. 25) of the Convention in respect of any
violation of his Convention rights by the Greek authorities.
Finally, if the applicant were extradited to Turkey, he could
file an application under Article 25 (Art. 25) of the Convention in
respect of any violation of his Convention rights by the Turkish
authorities.
This part of the application must therefore be rejected as
being manifestly ill-founded within the meaning of Article 27, para. 2
(Art. 27-2) of the Convention.
2. The applicant further complains under Article 6 para. 1
(Art. 6-1) of the Convention of unfairness of the extradition
proceedings in Switzerland. Under Article 14 (Art. 14) of the
Convention taken together with Article 6 (Art. 6) he complains of
discrimination as he was financially badly off.
The Commission recalls its case-law according to which a
decision as to whether an alien should be allowed to stay in a country
or be expelled does not involve the determination of the alien's
rights or obligations nor of a criminal charge within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention (see No. 7317/75, Dec.
6.10.76, D.R. 6 p. 141). It follows that Article 6 para. 1 (Art. 6-1)
of the Convention is not applicable to extradition proceedings.
Moreover, Article 14 (Art. 14) of the Convention only concerns
discrimination in relation to rights and freedoms guaranteed by the
Convention; it is therefore also not applicable in the present case.
It follows that the remainder of the application is
incompatible ratione materiae with the provisions of the Convention
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)
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