CAT - M.T. v. Sweden, Communication No. 1109/2021, 08/11/2024

Facts:

The complainant became involved with the Hizmet/Gülen movement while volunteering at an affiliated organization, when he was studying at university in Sri Lanka. According to the complainant, the Turkish Embassy leaked their personal details to local media and portrayed them as terrorists.

In June 2016, he moved to Kosovo and worked as an English teacher at schools linked to the Gülistan Educational Institutions, which he states Türkiye considers connected to a terrorist organization. The same year, the Turkish Embassy in Kosovo allegedly sent a list of 78 suspected affiliates to Turkish security services of which six individuals were abducted in Kosovo and transferred to Türkiye, where they were imprisoned and mistreated. Shortly after, a Turkish lawyer confirmed that an arrest warrant had been issued against the complainant under the anti-terrorism legal provision over his affiliation with the Hizmet/Gülen movement. His Turkish passport was then cancelled in 2019.

He moved to Sweden in September 2020, where he applied for asylum. The Swedish Migration Agency rejected his claim in 2021, arguing that the complainant had lived safely in Kosovo and thus could have sought protection there. This decision was upheld by the Swedish courts.

Decision & reasoning:

Firstly, the complainant argued that his deportation to Kosovo would violate article 3 of the Convention against Torture as he, due to his affiliation with the Hizmet/Gülen movement, could face the risk of being expelled. He also feared becoming subject to illegal rendition to Türkiye, where he would likely be arbitrarily imprisoned and subjected to torture. He further argued that the Swedish authorities wrongly considered Kosovo a safe third country as he pointed out the strong political influence of Türkiye over Kosovo. He thereby brought up the fact that six other individuals were abducted in Kosovo and transferred to Türkiye. He further added that Kosovo failed to respect the principle of non-refoulement and noted that Kosovo isn’t a party to several key international human rights treaties. At last, he argued that following the attempted coup d’état of 15 July 2016, the government allegedly carried out acts of repression against suspected Hizmet/Gülen supporters.

Regarding the merits of the case, Sweden argued that the issue at stake is not the situation in Türkiye, since Swedish authorities assessed the complainant’s case in relation to Kosovo as a safe third country, not Türkiye. So, the key question would then be whether returning him to Kosovo would violate article 3. To then counter arguments raised by the complainant, Sweden adds that even though Kosovo is not a member of the United Nations or the Council of Europe, Kosovo commits to unilaterally guarantee major human rights treaties in its constitution. Besides, its national asylum legislation prohibits non-refoulement explicitly and is, in principle in line with the EU acquis.

The Committee first considered the admissibility under article 22 of the Convention. The committee found the claim that returning him to Kosovo could lead to a transfer to Türkiye, where he might face torture, to be admissible. The argument that living in constant fear in Kosovo in itself would amount to torture, was found to be inadmissible.

The Committee then assessed two different issues.

First, the Committee noted that there was, based on UN reports, credible evidence to believe that there were various forms of torture and ill-treatment (including beatings, sexual assault, electric shocks and simulated drowning) in Türkiye following the 2016 attempted coup. The Committee also noted torture against individuals suspected of affiliation with the Hizmet/Gülen movement as according to official records, several detainees suspected of being affiliated with this movement had committed suicide in custody, without confirmation of that cause by independent autopsy. Besides, the Committee noted that recent reports implied a pervasive culture of impunity persisted as abductions and enforced disappearances continued to be reported and were not investigated properly.  Therefore, the Committee considered there to be grounds to believe the complainant would face a real, personal, and foreseeable risk of torture if transferred to Türkiye.

Second, the Committee examined whether Kosovo represents a safe destination. The Committee noted that although officials of Kosovo acknowledged a previous transfer violated domestic and international law, the Working Group on Arbitrary Detention stated that Kosovo never responded to requests for clarification regarding the legal basis for those actions. Furthermore, the Committee noted that the complainant’s Turkish passport had been cancelled, his temporary residence permit in Kosovo was expired and that he had no refugee status in Kosovo.

Looking at the likelihood of a transfer from Kosovo to Türkiye for the complainant and looking at the arguments that were raised before, the Committee conclude that returning the complainant to Kosovo could expose him to a real risk of onward transfer to Türkiye and torture.

Outcome:

The Committee states there are grounds to believe that, if the complainant is returned to Kosovo, he would face a foreseeable and real risk of being transferred to Türkiye, where he could be subjected to torture. Based on this assessment, the Committee states that sending the complainant from the State party to Kosovo would violate article 3 of the Convention against Torture and therefore finds that Sweden has a legal obligation not to forcibly return the complainant to Kosovo.

Observations/comments:

This summary was written by Warre Roelants during her participation in the Migration Law Clinic of Gent University.