Advance unedited version CAT/C/67/D/857/2017
the complainant told the judge that he was tortured and forced to sign a confession. However,
neither the judge nor the prosecutor asked him any questions about the torture, and the court
ordered that he should be further kept in pre-trial detention. The complainant was released
after 10 months in pre-trial detention, however, the criminal case against him and 36 other
persons associated with his party continued.
2.5
In 2006, the European Court of Human Rights examined the complainant’s case and
found a violation of the right to liberty and security under article 5 (unlawful and arbitrary
detention in Diyarbakir police headquarters, and lack of access to lawyer and judicial
examination of his detention).3
2.6
On 27 November 2012, after 11 years of investigation, the Diyarbakir Court sentenced
the complainant and five other co-defendants to 15 years of imprisonment for participation
in an armed organization, namely the Revolutionary Party of Kurdistan (PSK), which, as
stated in the court decision, aims to destroy the present system of the Republic of Turkey and
to establish in its place an independent Kurdish State on the basis of socialist system, under
the name Kurdistan, over the region of eastern and south-eastern Anatolia region. The trial
consisted of only a few evidentiary hearings during which the complainant was absent as he
was not summoned to appear. He was not present during the sentencing but was informed
about the verdict by his lawyer.
2.7
The complainant submitted an appeal to the Supreme Court of Turkey stating all of
the violations during the pre-trial investigation (torture, extortion of confession, deprivation
of legal representation). On 6 April 2016, the Supreme Court rejected his appeal. After this
decision, the complainant fled Turkey and travelled through several countries trying to reach
Germany (Iran, Ukraine, Azerbaijan, Russia, Montenegro).
2.8
The complainant was arrested on 30 November 2016 on the border crossing between
Serbia and Bosnia and Herzegovina on the basis of an international arrest warrant issued in
Turkey. On the same day, he was questioned by a judge at the Higher Court in Šabac in the
presence of an ex-officio lawyer. However, since the complainant did not know Serbian, the
court invited a local merchant who had business connections in Turkey to translate for the
complainant. This person did not speak Turkish well, and during the court hearing had to
consult over the phone with his associate in Turkey who in turn had to re-phrase judge’s
questions to the complainant. For the same reason, the ex-officio lawyer also was not able to
provide confidential counseling for the complainant. The Higher Court in Šabac decided to
keep the complainant in detention pending his extradition.
2.9
On 2 December 2016, the complainant appealed against his detention. On 6 December
2016, the Higher Court in Šabac denied his appeal. On 7 December 2016, the Turkish
authorities submitted a request to the Ministry of Justice of Serbia for the complainant’s
extradition. On 19 January 2017, the Higher Court in Šabac decided that all prerequisites for
the complainant’s removal to Turkey were met in line with articles 7 and 16 of the Law on
Mutual Assistance in Criminal Matters. There was no rigorous scrutiny by the Higher Court
in Šabac in examining the risks of treatment contrary to article 3 of the Convention. The
decision was rendered based on documents received from Turkey and related to the
complainant's case, which were not properly translated to Serbian and, as a result, were
unreadable. The translation was done in the mixture of Serbian and Macedonian languages
in Cyrillic and Latin alphabet. The same translated documents were used throughout the
extradition procedure.
2.10 On 3 February 2017, the complainant appealed the decision to extradite him to the
Appellate Court in Novi Sad. On 23 February 2017, the Appellate Court in Novi Sad quashed
the decision of the Higher Court in Šabac on the grounds that it did not provide for adequate
interpretation during the proceedings and did not establish for which criminal offence the
complainant had been convicted in Turkey.
2.11 On 17 March 2017, the Higher Court in Šabac rendered an identical decision without
proper questioning of the complainant, without properly translating the documents received
3
Ayaz and others v. Turkey, Application No. 11804/02.