AS TO THE ADMISSIBILITY OF
Application No. 24698/94
by H. G.
against Switzerland
The European Commission of Human Rights (Second Chamber) sitting
in private on 6 September 1994, the following members being present:
MM. H. DANELIUS, Acting President
G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
MM. F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 22 April 1994 by
H. G. against Switzerland and registered on 27 July 1994 under file
No. 24698/94;
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 national of Kurdish origin born in 1959,
resides at Hägglingen in Switzerland. He is married to a Turkish
citizen and has two children, born in 1988 and 1991 respectively.
Before the Commission he is represented by Mr D. Gfeller, a lawyer
practising in Basel.
I.
In 1979 criminal proceedings were instituted against the
applicant before the Elbistan Criminal Court in Turkey on suspicion of
having kidnapped and raped a 14 year old girl. In September 1979 the
applicant was remanded in custody for approximately three months
whereupon he was released and drafted for military service.
The applicant finished his military service in June 1981 and in
February 1982 left Turkey and went to Switzerland.
During this time criminal proceedings were conducted against the
applicant and, after he had left Turkey, these proceedings took place
in his absence. In these proceedings the applicant was represented by
an officially appointed lawyer.
On 9 July 1987 the Elbistan Criminal Court convicted the
applicant in absentia of kidnapping and rape. Upon an appeal, the
Court of Cassation quashed the conviction for rape on the ground that
the applicant had not been heard on this count.
By letters rogatory the applicant was questioned by the Brugg
District Office (Bezirksamt) in Switzerland on 1 November 1988.
On 14 March 1989 the Elbistan Criminal Court again convicted the
applicant of rape and sentenced him to imprisonment of 13 years, 10
months and 20 days. An appeal lodged by his counsel was dismissed by
the Court of Cassation on 27 September 1989.
II.
On 19 December 1991 the Turkish Embassy in Bern requested the
applicant's extradition to Turkey in order to execute his prison
sentence. When questioned by the Swiss authorities the applicant
complained that he had been convicted in absentia; that kidnapping of
a bride was a traditional custom in Kurdistan; and that its punishment
by the Turkish authorities amounted to political persecution of Kurds.
He also submitted that he would be ill-treated in Turkish prisons and
that he would be separated from his wife and children.
Upon a request by the Federal Office for the Police (Bundesamt
für Polizeiwesen), the Swiss Embassy in Ankara informed the Federal
Office on 26 May 1992 that due to a general amnesty the applicant had
to serve only one fifth of his original prison sentence. If his
detention on remand was taken into account the sentence would amount
to two years, seven months and seven days.
On 3 March 1993 the Federal Office for the Police decided, inter
alia with reference to the European Extradition Convention, to
extradite the applicant to Turkey. In its decision the Office found
inter alia that, according to inquiries by the Swiss Embassy in Ankara,
no political background could be seen in the applicant's conviction and
that the criminal proceedings against the applicant had been fair.
Moreover, it did not run counter to extradition that conditions in
Turkish prisons were different from those in Switzerland. It could
also not be said that the applicant had not been informed about the
criminal proceedings, as he had even been heard upon letters rogatory
by the Brugg District Office which had informed him of the date of the
trial; he had therefore had the possibility to participate in the
proceedings.
The applicant's administrative appeal (Verwaltungsgerichtsbe-
schwerde) against this decision was dismissed on 18 March 1994 by the
Federal Court (Bundesgericht).
In its decision the Court noted that the conditions for
extradition according to the European Extradition Convention had been
met. Thus, the request of the Turkish Government had been made in
accordance with the conditions of Article 12 of the Convention, and the
offence in respect of which the applicant should be extradited fell
under the offences mentioned in Article 2 of the Convention.
In respect of the applicant's complaint of unfairness of the
criminal proceedings and of having been convicted in absentia, the
Federal Court noted that Turkey had not ratified Protocol No. 2 to the
European Extradition Convention and was therefore not obliged to re-
open the proceedings against the applicant. However, the applicant had
had the possibility to appoint counsel for the proceedings in Turkey
at the latest when he was informed in 1988 of the trial at his
questioning by the Brugg District Office, or to contact his officially
appointed lawyer. As he had not done so, he could not now complain
about unfairness of the proceedings. In any event, in view of the fact
that his appeal had at least in part been successful it could not be
said that the defence by the officially appointed lawyer had been
ineffective.
In respect of the applicant's complaint under Article 8 of the
European Convention of Human Rights the Court considered that every
prison sentence interfered with a person's private and family life.
Finally, the Court found that in view of the political situation
in Turkey and the applicant's Kurdish origin the danger of inhuman
treatment in prison could not be ruled out completely. Therefore, the
Federal Office for the Police had to obtain certain guarantees; in
particular the Swiss Embassy in Ankara should be informed of the place
of the applicant's detention, the Embassy should have the possibility
at any time to visit the applicant in the presence of a doctor, and the
applicant should have the possibility to contact the Swiss Embassy at
any time. If these guarantees could not be obtained the applicant's
extradition had to be refused.
COMPLAINTS
The applicant complains that, if extradited to Turkey, he will
risk inhuman treatment in prison contrary to Article 3 of the
Convention. He refers to his Kurdish origin, claiming that he stems
from surroundings which were friendly to the PKK.
The applicant further complains that his extradition to Turkey
would breach Article 6 of the Convention. Thus, the criminal
proceedings conducted against him in Turkey had not been concluded
within a reasonable time and had been unfair; in particular he had not
been able to question witnesses and had had no defence counsel of his
own choice. Moreover, he had been convicted in absentia.
Under Article 8 of the Convention the applicant complains that
his extradition would violate his right to respect for his family life.
PROCEEDINGS BEFORE THE COMMISSION
The applicant introduced his application on 22 April 1994.
On 28 April 1994 the President decided not to apply Rule 36 of
the Commission's Rules of Procedure.
The application was registered on 27 July 1994.
THE LAW
1. The applicant complains that, if extradited to Turkey, he will
risk inhuman treatment in prison contrary to Article 3 (Art. 3) of the
Convention. Under Article 6 (Art. 6) of the Convention he submits that
the proceedings in Turkey lasted too long and were unfair. His
extradition would also violate his right to respect for his family life
within the meaning of Article 8 (Art. 8) of the Convention.
2. The Commission recalls that no right of an alien to enter or to
reside in a particular country is as such guaranteed by the Convention.
However, expulsion or extradition may in exceptional
circumstances involve a violation of fundamental rights, in particular
where there is a serious fear of treatment contrary to Articles 2 or
3 (Art. 2, 3) of the Convention in the country to which the person is
to be expelled (see Eur. Court H.R., Soering judgment of 7 July 1989,
Series A no. 161, p. 32 et seq., para. 81 et seq.).
Moreover, an issue might exceptionally be raised under Article
6 (Art. 6) of the Convention by an extradition decision in
circumstances where the fugitive has suffered, or risks suffering, a
flagrant denial of a fair trial in the requesting country (see
Eur. Court H.R., Soering judgment, loc. cit., p. 45, para. 113).
Expulsion or extradition of a person from a country where close members
of his family are living may also amount to an infringement of the
right to respect for family life guaranteed in Article 8 para. 1
(Art. 8-1) of the Convention (see Eur. Court H.R., Moustaquim judgment
of 18 February 1991, Series A no. 193, p. 18, para. 36).
3. The applicant complains that, if extradited to Turkey, he will
risk inhuman treatment in prison contrary to Article 3 (Art. 3) of the
Convention. He refers to his Kurdish origin, claiming that he stems
from surroundings which were friendly to the PKK.
The Commission recalls that the mere possibility of ill-treatment
on account of the unsettled general situation in a country is
insufficient to give rise to a breach of Article 3 (Art. 3) of the
Convention (see Eur. Court H.R., Vilvarajah and others judgment of
30 October 1991, Series A no. 215, p. 37, para. 111).
In the present case the applicant has not sufficiently shown that
in view of his Kurdish origin or for any other reason he had been ill-
treated by the Turkish authorities or that upon his return to Turkey
he would face a real risk of being subjected to treatment contrary to
Article 3 (Art. 3) of the Convention. The Commission further notes
that the Federal Court in its decision of 18 March 1994 made
extradition dependent on certain guarantees in respect of which it gave
instructions to the Federal Office for the Police.
This part of the application is therefore manifestly ill-founded
within the meaning of Article 27 para. 2 (art. 27-2) of the Convention.
4. The applicant further complains that his extradition to Turkey
would breach Article 6 (Art. 6) of the Convention. Thus, the criminal
proceedings conducted against him in Turkey were not concluded within
a reasonable time and were unfair; in particular, he was not able to
question witnesses and had no defence counsel of his own choice.
Moreover, he was convicted in absentia.
The Commission need not examine whether the extradition would
raise an issue under Article 6 (Art. 6) of the Convention. It suffices
to note that the applicant, by fleeing from Turkey, himself delayed the
progress of the proceedings (see Eur. Court H.R., Girolani judgment of
19 February 1991, Series A no. 196-E, p. 55, para. 15). Moreover,
although he was aware of the criminal proceedings at the latest in 1988
when questioned by the Brugg District Office upon letters rogatory, he
did not attend the trial. He also did not appoint a lawyer of his
choice to represent him in the proceedings, or even take up contact
with his officially appointed lawyer.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
5. Under Article 8 (Art. 8) of the Convention the applicant
complains that his extradition would violate his right to respect for
his family life.
The Commission notes that the applicant's wife and children
reside in Switzerland. Thus, the decision of the Swiss authorities to
extradite the applicant amounts to an interference with the applicant's
right to respect for his family life within the meaning of Article 8
para. 1 (Art. 8-1) of the Convention. The Commission must therefore
examine whether this interference is justified under Article 8 para.
2 (Art. 8-2) of the Convention.
The Commission observes that the applicant's extradition was
based on the European Extradition Convention. As the Federal Court
found in its decision of 18 March 1994, the request of the Turkish
Government had been made in accordance with the conditions of Article
12 of that Convention, and the offence in respect of which the
applicant should be extradited fell under the offences mentioned in
Article 2 of that Convention. The interference was therefore "in
accordance with the law" within the meaning of Article 8 para. 2
(Art. 8-2) of the Convention on Human Rights.
Moreover, the purpose of the applicant's extradition to Turkey
was the execution of the prison sentence as a result of his conviction
of kidnapping and rape. Furthermore, the applicant's wife and children
are Turkish citizens, and the applicant has not sufficiently shown
before the Commission that they could not upon their return adapt to
the circumstances in Turkey.
Having regard to the margin of appreciation which is left to
Contracting States in such circumstances (see Eur. Court H.R., Berrehab
judgment of 21 June 1988, Series A no. 138,. p. 15, para. 28), the
Commission considers that the interference with the applicant's right
to respect for his family life was justified in that it could
reasonably be considered "necessary in a democratic society ... for the
prevention of disorder or crime" within the meaning of Article 8 para.
2 (Art. 8-2) of the Convention.
The remainder of the application is therefore also manifestly
ill-founded 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 Acting President of the
Second Chamber Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy