On 16 August 2019, the United Nations Committee against Torture (UNCAT) found that the return of an applicant of Kurdish origin to Turkey by Serbia violated the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention).
The applicant was a Kurdish political activist in Turkey. In 2001, he was detained following accusations that he was part of an opposition group. In detention, he was tortured and forced to sign a confession. In 2006, the European Court of Human Rights found Turkey to be in violation of Article 5 of the European Convention on Human Rights in respect of the detention of the applicant. In 2012, the applicant was sentenced to 15 years imprisonment for his alleged involvement in an armed organization, the Revolutionary Party of Kurdistan. During the appeals proceedings, the applicant fled Turkey and was detained at the border crossing between Serbia and Bosnia and Herzegovina, pending his extradition. He subsequently applied for asylum in Serbia but remained in detention.
The Committee recalled that Contracting States, when examining an extradition order, must take into account the general human rights situation in the country, as well as the individual risk the applicant could face if returned. The Committee cited General Comment No. 4 (2017), wherein “substantial grounds” for believing a person concerned would be in danger of being subject to torture is defined as whenever the risk of torture is “foreseeable, personal, present and real”. The Committee assessed the circumstances of the applicant, particularly with regard to his previous detention and sentencing to 15 years imprisonment, as well as the current human rights situation in Turkey including the impact of the declared state of emergency, lifted in July 2018, that led to widespread violations of human rights.
The Committee held that the Serbian authorities had failed to carry out an individualized assessment before returning the applicant to Turkey. It held that, due to the absence of adequately translated documents, the authorities failed to take into consideration that his prison sentence in Turkey was based on a confession extorted by torture. It held that Serbia had violated Article 3 of the Convention in exposing the applicant to a risk of ill-treatment and Article 22 for failing to comply with interim measures in returning the applicant to Turkey.
The EWLU team would like to thank Nikola Kovacevic, ELENA Coordinator for Serbia, for bringing our attention to this case.