SECOND SECTION

Application no . 65692/12 Mehmet Ali TATAR against Switzerland lodged on 8 October 2012

STATEMENT OF FACTS

THE FACTS

The applicant , of Kurd origin , arrived in Switzerland in June 1988 . He claimed to have been detained and tortured by the Turkish authorities in 1987/88 previously to fleeing to Switzerland because he was a member of the Turkish Communist Party. Together with his two older sons, who also had been politically active for this party, the applicant was granted refugee status in 1994 by the Federal Office for Migration (FOM ) . In 1995 the applicant received a residence permit issued by the Office for Migration of the Canton of Z ü rich. Following this, his wife and his other three children came to live in Switzerland . In 1990 the applicant was severely hurt at work and subsequently received an invalidity pension of 100%. Around this time he also started to suffer from schizophrenia although it was only diagnosed in 2002.

In 2003 the applicant was sentenced to eight years of imprisonment for having killed his wife in 2001. Due to his mental illness he was accounted diminished responsibility for the act. His imprisonment was postponed for the benefit of measure enforcement in a closed psychiatric facility . In April 2010 the applicant was paroled under the condition that he is living in a n open psychiatric clinic for the next three years. The medical certificates submitted by the applicant show that despite of the psychiatric treatments received for the past 12 years, he is unable to live on his own and suffers relapses . He needs to take psychopharmaca daily and is attending therapies. He has also received a legal guardian.

With decision of 3 March 2009 the FOM revoked the asylum granted to the applicant because he was sentenced for a crime (the killing of his wife). Nevertheless, the FOM did not withdraw the recognition of the applicant as refugee under the 1951 Refugee Convention.

On 28 June 2010 the Migr ation Office of the Canton of Zü rich revoked the residence permit of the applicant based on the FOM ’ s decision. The applicant appealed unsuccessfully through all instances against this decision until the Federal Supreme Court (FSC).

On 2 August 2012 the FSC rejected the applicant ’ s appeal. It ruled that the applicant can be sent back to Turkey despite of his recognition as refugee under the 1951 Refugee Convention. It considered that the expulsion of the applicant to Turkey was lawful since he fell under the exception of the non- refoul e ment principle because he was sentenced for a severe crime. It ruled that the applicant is a risk for public safety because he suffers relapses during which he might harm himself or other persons. The FSC furthermore denied the risk of the applicant of being ill-treated, tortured or killed in Turkey . It argued that there were sufficient good facilities for mentally ill persons in Turkey where the applicant could receive the needed treatment. Regarding the applicant ’ s fear to be a victim of blood feud by the relatives of his wife in Turkey , the FSC stated that he failed to proof that the Turkish authorities were not able to protect him from such an act and that he could relocate in Turkey . With respect to the risk of being tortured for having been a member of the Turkish Communist Party , the FSC ruled that the applicant ’ s political activities dated back more than 20 years in which the human rights situation in Turkey has changed significantly. Most of the applicant ’ s children had already renounced their refugee status and did not report any difficulties when travelling back to Turkey .

On 21 August 2012 the Migration Office of the Canton of Z ü rich informed the applicant that he needed to leave Switzerland until 30 November 2012. It furthermore requested the FOM to release an entry ban against the applicant.

COMPLAINTS

Under Article 2 and 3 of the Convention the applicant claims to be at risk of life or ill-treatment if expulsed to Turkey because his mental health condition would deteriorate quickly and he would be at high risk to severely hurt or kill himself or a third person. He alleges that if returned to Turkey , he would be unable to look for himself or for a place to stay. His closest family members (his children and grandchildren) all received the Swiss nationality and live in Switzerland . He claims that in Turkey places in psychiatric facilities are very scarce and treatment reduced to pure medication. With the invalidity pension he receives from Switzerland he would not be able to afford the needed treatment in Turkey . The applicant also claims that a separation from his children and grandchildren with whom he maintains close relationships would lead to a further deterioration of his mental health condition.

Under Article 2 of the Convention the applicant furthermore states to be at risk of being murdered as act of blood feud by the relatives of his wife he killed. He alleges to have already received threats from them . He states that the police in Nurhak , where he and his wife originate from, is unable to protect him from such an act since the State ’ s structure in this part of Turkey is weak. In any case, so he claims, will he be unable to return to Nurhak but since he is severely mentally ill and in need of stationary treatment he will be unable to hide from the relatives even if he relocates in another part of Turkey .

The applicant further claims under Article 3 of the Convention that most likely he is still registered with the Turkish authorities as member of the Turkish Communist Party and would be at risk of being arrested and tortured upon return.

QUESTION S TO THE PARTIES

1. 1. In light of the applicant ’ s current state of mental health, would his removal to Turkey amount to a treatment in breach of Article 2 or 3 of the Convention?

2. 2. In light of the applicant ’ s current state of mental health, is he fit to travel?

3. 3. The parties are requested to provide full details of the accommodation and medical arrangements to be put in place by the Turkish authorities upon the applicant ’ s arrival in Turkey and to comment upon the su fficiency of those arrangements. Those arrangements should take into accou nt the above considerations on relocation of the applicant in Turkey and his possibilities to receive support by relatives if relocated.

4. 4. Have all internal remedies been exhausted regarding the applicant ’ s right for family life under Article 8 of the Convention?

5. 5. Is the entry ban that is proposed by the Migration Office of the Canton of Z ü rich in accordance with the applicant ’ s rights under Article 8 of the Convention?

The government is requested to inform immediately the Court if at any stage of the proceedings the applicant is about to be expulsed to Turkey.