CAT/C/66/D/846/2017
State party’s observations on admissibility and the merits
4.1
In notes verbales dated 19 December 2017 and 30 April 2018, the State party
submitted observations on the background to the complainant’s detention and the request
for his extradition.
4.2
The State party identifies the complainant as Ayden Elmas, a Turkish citizen born
on 14 April 1958. He is the manager of the VAFA company in Tétouan, which specializes
in managing a chain of retail establishments, including ice cream shops, bakeries,
restaurants and fast-food outlets. He also has other business interests in the import-export
sector.
4.3
On 26 July 2017, the complainant was arrested in Morocco, pursuant to international
arrest warrant No. 2754/2016, issued by the court of first instance of Malatya on 6 August
2016, for his alleged membership of an armed terrorist group, the Hizmet movement. The
complainant was brought before the Crown Prosecutor at the court of first instance of
Tétouan, who ordered that he be placed in pretrial detention in the Salé 2 local prison.
4.4
The Turkish authorities submitted a written extradition request that was translated
into Arabic in accordance with article 29 of the Agreement between the Kingdom of
Morocco and the Republic of Turkey on Mutual Assistance in Criminal Matters and
Extradition, concluded on 15 May 1989. The annex to the extradition request contained the
following documents: the arrest warrant issued by the Turkish judicial authorities, a
summary of the offences for which extradition was requested, a description of the person
subject to the extradition request, along with all his personal details, and the legal
provisions applicable to the case.
4.5
On 19 September 2017, the Criminal Division of the Court of Cassation adopted
decision No. 1429/3, accepting the request for the complainant’s extradition. In the view of
the Court, the extradition request met all the procedural and substantive conditions
established in the Agreement on Mutual Assistance.
4.6
Concerning the allegations that the complainant’s extradition would expose him to
torture in violation of article 3 of the Convention, the State party submits that the Court of
Cassation, in its decision, considered the offences that are the subject of the extradition,
including the commission of terrorist acts and the financing of terrorism, to be ordinary
offences under Turkish law. There was no connection with political offences or offences
associated with them. The charges brought against the complainant would therefore not
lead to his being prosecuted or punished on grounds of race, religion, nationality or political
opinion and would not risk aggravating his situation for any of those reasons.
4.7
In this regard, it is worth noting that the provisions of Moroccan law relating to
torture adequately implement the provisions of the Convention. Article 721 of the Code of
Criminal Procedure provides for the inadmissibility of an extradition request if the
Moroccan authorities have serious reasons to doubt that the request relates to an ordinary
offence. Thus, accused persons cannot be extradited for prosecution or punishment on
grounds of race, religion, or political opinions or on the basis of their personal situation.
4.8
Even though the complainant did not invoke the risk of torture before the Court of
Cassation, Turkey presented the necessary procedural safeguards relating to the
complainant’s rights, including the right to a defence, as stipulated in the international
agreements ratified by Turkey and in its national legislation. Moreover, the fact that Turkey
has accepted the procedure for submission of individual complaints under article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (the European
Convention on Human Rights) enables the complainant to file a complaint to the European
Court of Human Rights if his rights are violated.
4.9
The State party is of the view that the complainant has not sufficiently substantiated
the allegations that the evidence presented by the Turkish authorities is not convincing.
Furthermore, it is not within the Court of Cassation’s competence to rule on the question of
the complainant’s innocence or guilt. It is for the competent judicial authorities of the State
requesting the extradition to hand down a decision in that regard, with full respect for the
rules ensuring a fair trial.
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GE.19-10782