Lexploria

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)

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H.G. v. SWITZERLAND

H.G. v. SWITZERLAND

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