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Germany

Repatriation of Seven Sudanese Nationals (1995)

The German government acknowledges in its reply that it has sought diplomatic assurances in two cases. In the 1995 case of the repatriation of seven Sudanese nationals described in the reply at page 24, the government makes the claim that the Federal Constitutional Court found that a “note verbale” from the Sudanese Foreign Ministy—“expressly affirming” its nationals would not face persecution, arrest, or criminal prosecution upon return in relation to their activities in Germany or having filed an application for asylum— “constituted a declaration and assurances, binding under international law.” 

The reply states that the German court “agreed with the German government’s assessment and judgment that these understandings under international law with the Sudanese government constituted suitable means which promised to be effective in countering the risk to the people concerned…and [t]he assessment and judgment fell within the area of competence of the Federal Government based on its power over foreign affairs.” 

The German government appears to conflate what might have been instrumental or practically expedient in terms of effecting returns to Sudan with what is effective in terms of guaranteeing the men’s safety and security of person. A simple note verbale cannot suffice to provide an effective safeguard against ill-treatment upon return. It is notable that in other cases where governments in Europe have sought assurances that amount to a simple restatement of existing treaty obligations, courts have found them to be insufficient (see section on Netherlands: Case of Nuriye Kesbir below).

There is ample evidence that a simple note verbale would do nothing to increase safeguards against torture and ill-treatment. Persecution, ill-treatment, and unfair trials were commonplace in Sudan at that time.⁸ The very fact that the German government found it necessary to obtain the note verbale amounts to an acknowledgement that the Sudanese government regularly violates its binding treaty obligations.⁹ The German government reply is silent on the question of why a government that routinely violates obligations under international law would abide by a promise to respect those obligations in an individual case.

Case of Metin Kaplan

The second case detailed in the German government reply is that of Metin Kaplan, a radical Muslim cleric deported to Turkey. In May 2003, a German court halted Kaplan’s extradition based on human rights concerns, including the insufficiency of diplomatic assurances against torture and unfair trial from the Turkish authorities.¹⁰ In response to the judgment, the German authorities sought enhanced assurances from the Turkish government. Kaplan lost a series of legal challenges to his subsequent deportation, but the German government justified Kaplan’s removal by claiming that it had secured written assurances from the Turkish Foreign and Justice Ministries that Kaplan would get a fair trial. Kaplan was deported to Turkey in October 2004.

In June 2005, Metin Kaplan was sentenced to life in prison in Turkey for plotting to overthrow Turkey's secular system with his Cologne-based extremist group, the Union of Islamic Communities, also known as “Hilafet Devleti” (Caliphate State). A Turkish Appeals Court overturned that verdict in November 2005. According to an Anatolia News Agency report, the court ruled unanimously to overturn the verdict on grounds of procedural deficiencies and inadequate investigation.¹¹ According to Kaplan’s lawyer, the cleric was convicted on the basis of evidence from an earlier case, in which there was forensic medical evidence indicating that many of the defendants were subjected to torture. He told Human Rights Watch: “Therefore, we believe that the judgment in that case should not be taken into account in Metin Kaplan's case. Since it was a judgment on the basis of evidence obtained illegally.”¹² A retrial is scheduled to commence on April 28, 2006.

The Kaplan case raises concerns about the reliability of diplomatic assurances. The Turkish government undertook that Kaplan would receive a fair trial, although its judicial system has been routinely criticized for unfair trial practices, including by the European Court of Human Rights, particularly with respect to national security suspects.¹³ The fact that Kaplan’s conviction was overturned on appeal based on procedural and investigative irregularities lends credence to his argument in German courts prior to his deportation that he would not get a fair trial upon return. Moreover, Kaplan’s contention that evidence extracted by torture was used to convict him further sullies the process.

The conduct of Kaplan’s trial is also relevant to question of assurances against torture in his case. The United Nations Committee against Torture has noted that a similar fair trial breach by Egypt in 2004, despite diplomatic assurances to the contrary, went “to the weight that can be attached to the assurances as a whole.”¹⁴