CAT/C/61/D/747/2016
2.2
On an unspecified date, the complainant and his twin brother, S.Y., were charged
with murdering a village guard in 1988 in revenge for their father. The complainant denied
involvement in the murder, claiming that the charges against him had been fabricated for
political reasons and because of his family history. While in pretrial detention, police
officers subjected him to torture for eight days, in particular falaka (beating on the soles of
his feet), burning with cigarettes, beatings and electric shocks. He was not able to lie down
or walk during those eight days, urinated blood for several days thereafter and still has scars
on his wrists. On 23 October 1989, the second jury court in Gaziantep sentenced him to
death on the murder charge, which was later commuted to life imprisonment. The sentence
was based mainly on the testimony of his brother, M.Y., which was obtained under torture.
Subsequently, M.Y. and two other witnesses withdrew their testimonies against the
complainant. The complainant did not challenge the sentence as he could not find a
competent lawyer. On an unspecified date, he managed to escape from prison with the help
of S.Y., who remained in prison in his place.
2.3
In 1992, the complainant sought asylum in Switzerland on the grounds of the torture
and related post-traumatic stress disorder that was first diagnosed in 1994.1 On 26 August
1994, the Swiss Federal Office for Refugees denied his asylum request. On 5 January 1995,
the Swiss Asylum Review Board rejected his appeal. Further to his application for reexamination, dated 10 May 1995, the Office granted him subsidiary protection and
temporary admission to Switzerland on 17 September 1996. The Office found that the
complainant would face a real risk of a breach of article 3 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (European Convention on Human
Rights) if he were to be returned to Turkey. The complainant also claims that the Office
established that he had a “political data sheet” in Turkey which characterized him as “an
inconvenient or recalcitrant person” and that the Turkish authorities had monitored his
political activities. On 19 September 2002, the Board upheld its decision on appeal.
2.4
In the meantime, in 1995, the complainant’s brother S.Y. was released from prison
and fled Turkey. On 16 August 1996, S.Y. was granted refugee status in Switzerland. In his
request for asylum he claimed that he had been tortured in September/October 1994 after he
was arrested by the police. The complainant contends that his brother’s asylum application
contained records of a proceeding brought against him under the Turkish anti-terrorist
legislation listing the complainant as a PKK member. This confirms that the complainant
had a political data sheet in Turkey, as recognized by the Swiss authorities.
2.5
In 2010, the complainant was granted residence “B” status in Switzerland. As he had
not been able to work full time since 1999 due to his work-related injury and subsequent
partial disability, he revived his interest in the PKK movement. He worked as a driver for
PKK leaders, drove them on long journeys throughout Europe, hosted PKK members
visiting Switzerland, participated in a number of PKK-related events, was interviewed and
raised funds for Kurdish charities. He visited a PKK administrator who was under house
arrest in Germany and surveillance by the German and Turkish authorities. He hosted a
PKK leader from the Syrian Arab Republic and a cousin of the Turkish PKK leader
Abdullah Öcalan in Switzerland. The Swiss authorities never contested the complainant’s
political activities in Switzerland.
2.6
On 15 August 2011, the Attorney General of Gaziantep issued an extradition request
for the complainant to serve the life sentence relating to his murder conviction. On 5
October, the Turkish Embassy in Bern transmitted the extradition request to the Federal
Office of Justice. After three unanswered requests, the Turkish authorities provided
diplomatic assurances to the Office on 22 March 2012. In the meantime, according to the
complainant, the Turkish authorities replaced the complainant’s political data sheet with a
regular data sheet.2
1
2
2
The diagnosis has been reconfirmed several times. The report of 30 July 2014, among the eight
medical reports dated between 2012 and 2014, on file in German, states that the post-traumatic stress
disorder is directly linked to the torture the complainant suffered in custody in the period 1988-1990.
Whereas a regular data sheet contains information about a person’s criminal record and common-law
charges, a political data sheet marking someone as an inconvenient or recalcitrant person is said to be
established if a person is suspected of anti-government activities.