ECtHR - Tatar v. Switzerland, Application no. 65692/12, 14 April 2015

Facts:

In 1994 the applicant and two of his sons were granted refugee status in Switzerland due to their political involvement in the Turkish Communist Party (TCP). His wife and other children followed them to Switzerland.

 In 2001 the applicant killed his wife and was sentenced to eight years’ imprisonment. During the proceedings he was diagnosed with schizophrenia.

In March 2009 the Federal Office revoked his asylum status because of his conviction. Owing to his mental state he was ordered to stay in a psychiatric care facility for three years.

Expert reports had indicated that he would remain unable to live on his own. In June 2010 the Migration Office revoked his residence permit and ordered him to leave Switzerland.

The applicant appealed claiming that he was still protected by the principle of non-refoulement. He also alleged that his expulsion would lead to a deterioration of his mental health endangering his life and that he would be at risk of torture and ill-treatment by his wife’s family and the Turkish authorities.

Although the applicant’s probation regarding his criminal conviction was prolonged until July 2016, the order to leave the country still remained in force without a date of removal.

Decision & reasoning:

The Court examined whether the applicant’s removal to Turkey would be in breach of articles 2 and 3 of the Convention with regards to his medical situation, examined the claim of a blood feud and the risk of inhuman treatment due to his former membership of the TCP.

With regards to the claimed violation of article 3 in relation to the applicant’s mental health, the Court noted that the applicant’s removal to Turkey would not jeopardise his mental health taking into account the availability of medical treatment in the bigger cities of Turkey. Taking cue from Bensaid v. the United Kingdom(Application no. 44599/98), the Court highlighted that the fact that his treatment in Turkey would be less favourable than that offered in Switzerland does not constitute a violation of article 2 and 3.

What is more, the Court took into account the Swiss Government’s submission that upon executing the expulsion the immigration authority will ensure that the applicant’s medical condition allows him to travel and that the competent Turkish authorities will be informed about the applicant’s situation.

The Court acknowledged the graveness of the applicant’s medical situation; however it noted that the humanitarian grounds against his removal are not imperative (as in the case D. v. the United Kingdom,no. 30240/96).

With respect to the applicant’s claim of a blood feud against him by the relatives of his wife, the Court recalled the Federal Supreme Court’s statement that relatives of his wife have already visited Switzerland without any reported episode.

Moreover, the applicant’s claim to be at risk of torture or inhuman treatment upon return to Turkey due to his political activities in the past was considered unfounded given the applicant’s inactiveness for more than 20 years as well as the unhindered visits to Turkey of his relatives residing in Switzerland.

Furthermore, the Court holds that internal relocation remains an option in case specialised facilities do not exist in his town of origin but also in case the Nurhak police are unable to protect him from a blood feud [48 and 51].

Accordingly, the implementation of the decision to remove the applicant to Turkey does not breach articles 2 and 3 of the Convention.

Concerning the applicant’s claim of a violation of article 8 the Court reiterated its findings in N.A. v. the United Kingdom (Application no. 25904/07) that domestic remedies must be exhausted before applying to this Court. The applicant did not claim a violation of his right to family and private life (article 8 of the Convention) during his application for judicial review before the Federal Supreme Court. Therefore, his complaint under article 8 before the ECtHR was found inadmissible for failure to exhaust available domestic remedies in accordance with article 35 para 1 and 4 of the Convention.

Lastly, with reference to the alleged violation of article 6 para 1 of the Convention the Court cited its decisions in the case Maaouia v. France [GC] (no. 39652/98) that decisions regarding the entry, stay and deportation of aliens do not concern the determination of an applicant’s civil rights or obligations or of a criminal charge against him, within the meaning of article 6 para 1 of the Convention.

Outcome:

The Court found that the expulsion of the applicant to Turkey would not give rise to a violation of article 2 or 3 of the Convention.

Further, the Court found his claim of a violation of articles 6 para 1 and 8 of the Convention to be unfounded.

Observations/comments:

Partly Dissenting opinion of Judge Lemmens

Judge Lemmens raised concerns over the applicant’s mental situation and paid attention to whether his expulsion would deteriorate his already fragile health. Taking into account the applicant’s need of specific therapy, failing which he may harm himself or other people, he concluded that in the present case the humanitarian grounds against the removal are compelling.

He further highlighted that the applicant is unable to live on his own and needs permanent supervision. Taking into account the above mentioned medical condition of the applicant, his 26 years absence of his country of origin as well as the lack of guarantees that he will receive treatment compatible with article 3 if removed to Turkey, he supported that the applicant’s expulsion would lead to a violation of article 3 and will put him at risk of inhuman and degrading treatment.