Switzerland: contradictory extradition rulings
01 January 2007
On 23 January 2007, the Swiss Federal Court passed two sentences on extradition cases which seriously contradict each other. Both cases concern requests by Turkey, which were both, in first instance, granted by the Federal Office of Justice (
Bundesamt für Justiz - BJ).
Erdogan Elmas
The 28-year-old Erdogan Elmas has been living in Switzerland for eleven years with status of "provisional acceptance". Despite the fact that he was refused refugee status in his asylum procedure from 1996, the asylum authorities have since repeatedly found that in case of deportation to Turkey he would face serious disadvantages or even political persecution. None the less, Elmas was arrested in 2006 on grounds of an extradition request by Turkey and spent his extradition detention, which lasted almost one year, in five different prisons because the authorities kept transferring him to stem protests in front of the prison.
In the extradition order, Elmas is accused of having taken part in the murder of a policeman as a member of the DHKP-C in 1995. The Federal Court now declared the extradition unlawful. In its decision it considered, firstly, the long duration of the court procedure. Further, the extradition request was issued nine years after the actual crime. Secondly, the court saw another obstacle to extradition in the fact that Elmas was only 17 years of age on the alleged date of the crime. It is "questionable", the court said, "that a possible youth sentence under Swiss law would even be considered a sanction justifying extradition" as laid down in the extradition treaty of the Council of Europe from 1957.
Thirdly, the court stated that Turkey was in a state of quasi civil war between 1992 and 1997 and that particularly oppositional Kurds were regularly tortured after arrest. Although Elmas had been a member of the DHKP-C, which has been classified as a terrorist organisation by Germany since 1997 and by the EU since 2002, he was not a functionary in the organisation. The court held that Switzerland could therefore not convict him on grounds of membership of a criminal organisation. This in turn meant that the precondition of (in German
beiderseitige Strafbarkeit – the condition that the offence would be punished also in the requested state) was not fulfilled. The circumstances meant that an extradition was therefore not possible, even if Turkey would grant a diplomatic promise for a fair trial. The additional documents that Elmas' lawyer Marcel Bosonnet retrieved in Turkey during the extradition procedure are probably also sufficient to achieve recognition as a refugee in the renewed asylum procedure of his client.
Mehmet Esiyok
In total contradiction to the above case, the Federal Court passed a sentence on the same day and in the same constellation, granting the extradition request of Turkey in the case of Mehmet Esiyok – on the precondition that his asylum claim is met with a negative decision. Esiyok's asylum procedure is still pending. "We have sufficient legal arguments", Peter Nideröst, Esiyok's asylum lawyer, said. But he fears that the Federal Administrative Court, second instance in asylum cases, will pass a similarly political judgement than that of the Federal Court in the parallel extradition procedure.
Mehmet Esiyok has been a member of the Kurdistan Workers Party (PKK) since 1989 and was a member of the party's central committee from 1995 where he was responsible for press and education as well as for contacts abroad. According to Nideröst, he never participated directly in the military conflicts between the PKK and the Turkish state. In December 2005, he landed in Zurich via Moscow and lodged an asylum application. Since his arrival he has been detained in the airport detention centre in Zurich.
The Federal Court granted the extradition request on grounds of only one of the thirty alleged crimes listed in the indictment in the Turkish extradition request: accordin