CAT/C/61/D/747/2016
The Swiss psychiatric reports showing causality between the complainant’s past torture and
his present health condition rely on his own account and therefore were not considered to
be reliable by the Swiss authorities.
4.5
Second, the State party submits that the complainant has failed to substantiate the
risk of torture because of his political activities in Turkey, Switzerland or other European
countries. The Swiss asylum authorities found contradictions in his account of political
activities in Turkey. In the first asylum proceedings, he claimed that he and his family had
provided food and financial support to guerrilla fighters. He also claimed that he had been
arrested several times in connection with his support of PKK in 1976, 1978, 1985 and 1986.
The asylum authorities found that his account lacked detail; in particular, he was not able to
specify when and how many times he had been arrested. They also found that he had not
faced any difficulties with respect to the Turkish authorities. In his application for reexamination dated 10 May 1995, the complainant submitted that the Security Court of
Malatya had launched criminal proceedings for possession of PKK propaganda against his
brother S.Y. and the latter confirmed having received the material from the complainant.
Although investigations conducted by the Swiss Embassy in Turkey showed that S.Y. had
indeed been accused of having supported PKK fighters by the Security Court and was
acquitted on 19 January 1995, no proceedings had been launched against the complainant.
S.Y. had been imprisoned for having helped the complainant to escape from prison and was
released in 1991. The complainant did not claim before the asylum authorities that he had
provided propaganda to S.Y. between 1990 and his departure for Switzerland in 1992,
while in hiding in Turkey. Additional investigations by the Swiss Embassy in Turkey
showed that no new proceedings were pending against him there. Furthermore, while
emphasizing that the mere existence of a political data sheet for alleged support for an
opposition group is sufficient grounds to fear torture upon return to Turkey, in the present
case, investigations conducted by the Swiss Embassy in Turkey in 2012 and 2015 showed
that no political data sheet based on the complainant’s alleged link to the PKK existed in
Turkey, no related data had been found and nothing demonstrated that such a document had
been created but subsequently destroyed. There was, however, a regular data sheet
reflecting the author’s murder conviction. On 2 September 2015, the Federal Office for
Refugees found that the complainant’s extradition to Turkey would not expose him to a risk
of torture or inhuman or degrading treatment, even in the light of recent developments in
the country.
4.6
Regarding the complainant’s political activities in Switzerland, the State party
considers that they did not amount to serious political involvement and could not have
attracted the attention of the Turkish security services. This is confirmed by the fact that no
political data sheet has been created in connection with the complainant. Furthermore, his
wife has returned to Turkey several times and although she was questioned about the
complainant’s whereabouts, no repressive measures were taken against her. The Turkish
authorities explained that although the complainant had been residing in Switzerland since
1992, the extradition request was made in 2011 because his precise address was not known
until then, although an arrest warrant had been issued several days after his escape from
prison. The State party finds the explanation convincing and rejects the complainant’s
allegations as unsubstantiated.
4.7
Third, the State party argues that the complainant’s conviction for the revenge
murder of A.Y. was not politically motivated or manifestly flawed. It submits that A.Y.’s
son was convicted of the complainant’s father’s murder in 1986. The Swiss authorities
found that, due to the complainant’s failure to substantiate his political involvement, he was
not targeted as a political opponent and had been prosecuted under common law. The trial
court is competent to deal solely with common-law offences. S.Y. was also accused of the
murder but later acquitted; if the proceedings had been politically motivated, S.Y. would
have been convicted as well. The complainant was convicted under article 450.10 of the
Turkish criminal code, providing that revenge murder is punishable by death, but he was
sentenced to life imprisonment. Should he have been persecuted, he would have received
the maximum penalty. The complainant was represented by several lawyers of his choice
and his conviction was affirmed by the Court of Cassation and the Supreme Court. The fact
that the Supreme Court had doubts about the complainant’s guilt, as he claimed, showed
that his case had been examined impartially. The complainant’s claim that his conviction
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