Lexploria

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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GEZICI v. SWITZERLAND

GEZICI v. SWITZERLAND

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