FECL 19 (October 1993):

ASYLUMSEEKERS TORTURED FOLLOWING THEIR DEPORTATION: NO LIABILITY OF SWISS STATE

By decision of 4 September 1993 the Swiss Federal Court rejected a sue for damages filed by a Kurd against the Swiss Confederation. The Kurd was deported to Turkey in 1989 after his asylum application had been turned down by the Swiss asylum authorities. In Turkey, the Kurd was arrested and heavily tortured.

The Kurd, T., was deported despite warnings of renowned Swiss charities that he was threatened with serious persecution in his home country, because of his participation in an occupation of the German Consulate in Basle, as a sympathiser of the Kurdish Worker Party, PKK.

Five months after his deportation T. was arrested by the Turkish police and accused of aiding and abetting in a murder, as well as of supporting a "terrorist organisation".

A State Security Tribunal in Malatya later acquitted him on the grounds of lacking evidence, but during detention pending trial T. was so heavily tortured with electro-shocks, that he is still unable to work, according to Swiss medical certificates.

After his release from prison in Turkey, T. again made his way to Switzerland, where his second asylum application was approved.

But the Swiss authorities rejected T.'s claim for damages resulting from loss in wages after the deportation and for reparation for the torture he suffered in Turkey. T. then filed a sue at the Swiss Federal Court.

The court dismissed the case on formal grounds. There is a law in Switzerland "on the accountability of the Confederation, the members of its authorities and its civil servants" that makes the Confederation accountable for the "damage, a civil servant illicitly inflicts upon a third person in pursuance of his official activity". Yet, there is an important limit to this accountability. According to article 12 of the law, the lawfulness of official acts shall not be examined, when a decree, a decision, or a sentence has formally gained legal force.

The court's dismissal of the case is based on this provision. According to the judges, T.s' deportation was carried out following a regular procedure and a final decision with legal force. Thus, the Federal Court did not follow the argumentation line of T.'s lawyer, who stressed that the first negative decision on T.'s asylum application had not gained legal force, considering that it had been annulled by the second decision of approval.

The Federal Court, however, disagreed, arguing that the deportation measure following the first application was perfectly valid. The second, favourable decision, the court said, was based on new grounds that had emerged after the deportation, and T.'s arrestation in Turkey after his deportation was not due to his political activities in Basle, but to a murder occurred in his home region, after his deportation from Switzerland.

The same day, the court also dismissed the similar case of a Tamil asylum seeker deported in 1980. The Tamil's lawyer had tried to circumvent the barrier of article 12 by pleading that the Federal Authorities had failed to consider a demand for re-examination presented by the asylum seeker after the deportation order. But the court stated that the officials concerned had not trespassed their legal administrative competence of free assessment in refusing to consider the demand.

For the charities and aylum defence groups suppporting the case of the two refugees the outcome of the case was not unexpected, but bitter.

The legal consideration of the Federal Court focused on the fairely abstract question of the legal force of decisions, while eluding the fundamental question, if the Swiss state is violating international conventions by denying asylum to applicants and sending them back to their home countries despite strong evidence of persecution.

After hearing the Federal Courts decision, one of the lawyers involved bitterly remarked that it was now difficult to imagine a case, where the Confederation could be made accountable for obviously wrong decisions of its officials within asylum procedures. Indeed, deportation orders are usually formally valid.

 

Sources: Der Tagesanzeiger, 25.9.93; Neue Zürcher Zeitung, 26/27.9.93; Bundesgericht, II. Öffentlichrechtliche Abteilung, Urteile 2A.321/1992 und 2A.377/1991, 24.September 1993.