Ali Yildiz has successfully defended a case before the UN Committee against Torture against Switzerland, which rejected the asylum applications of a Turkish couple and decided to return them to Kosovo, where they came from.

The Committee, which has already issued an interim measure to prevent the deportation of the complainants, concluded at its last session that the Swiss authorities erred in their decisions.

The Swiss authorities, in adopting the decision in question, assumed that Kosovo was a safe country for persons with links to the Gulen movement and stated that Kosovo’s diplomatic assurance not to deport the complainants to Turkey provided sufficient guarantees.

Ali Yildiz, on the other hand, argued on behalf of the complainant that Kosovo was not a party to any of the international human rights treaties, that six Turkish persons with links to the Gulen movement had been forcibly returned from Kosovo and imprisoned in Turkey, that Turkey had great influence and leverage over Kosovo, that the tripartite memorandum signed by Turkey, Finland and Sweden on the latter’s bid for NATO membership shows that the deportation of those linked to the Gulen movement is at the top of Turkey’s international agenda, that the Turkish officials said that Turkey would support Kosovo’s NATO membership if it banned the Gulen movement.

The UN Committee against Torture concluded that the complainants, who are perceived to be associated with the Gulen movement, “would face a personal, real, present and foreseeable risk of being subjected to torture if returned to Turkey”.

The Committee also noted that it was “relevant that Kosovo is not a party to the Convention and is therefore not bound under international law by Article 3 of the Convention to refrain from transferring (the complainants) to a country where he would be in danger of being subjected to torture, nor is it bound by any of the other provisions of the Convention”. With regard to the State party’s “diplomatic assurances argument”, the Committee stated that diplomatic assurances should not be used as a loophole to undermine the principle of non-refoulement.

The Committee further noted that “the Government of Turkey has urged the Government of Kosovo to outlaw the Gülen Movement” and observed that “if Kosovo designates the Gülen Movement as a terrorist organisation and asserts that its adherents consequently pose a “danger to the security of the country”, any assurance or possible refugee status that Kosovo may grant to the authors cannot protect them”.

The Committee then concluded that the assurance given by Kosovo to the Swiss against deportation or forcible transfer did not negate the conclusion that the complainants would face a real risk of being transferred from Kosovo to Turkey if they were returned to Kosovo.

The Committee finally decided that the State party’s possible removal of the authors to Kosovo – where they would face a real risk of being forcibly returned to Turkey and subjected to torture – would constitute a violation of article 3 of the Convention and that the State party must therefore refrain from forcibly returning the authors to Kosovo.