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The Committee
against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 8 May 1996,
Having concluded its consideration of communication No. 21/1995, submitted
to the Committee against Torture on behalf of Mr. Ismail Alan under article
22 of the Convention,
Having taken into account all information made available to it by the author
of the communication, his counsel and the State party,
Adopts the following:
Views under article 22, paragraph 7, of the Convention
1. The author of the communication is Ismail Alan, a Turkish citizen of
Kurdish background, born on 1 January 1962, currently residing in
Switzerland. He claims to be a victim of a violation by Switzerland of
article 3 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. He is represented by counsel.
The Facts as Submitted
2.1 Since 1978, the author has been a sympathizer of KAWA, an outlawed
Kurdish Marxist-Leninist organization. In 1981, the author was arrested for
the first time. He claims that he was tortured and interrogated about his
organizational activities. After nine days, he was released. In June 1983,
while fulfilling his military service, the author was once again arrested.
He claims that he was brutally tortured during 36 days. He states that he
was subjected to electric shocks.
2.2 On 30 April 1984, he was sentenced to 8 years and 4 months of
imprisonment, plus 2 years and 10 days of internal exile, for being an
active member of KAWA. His conviction was quashed by the Court of Cassation,
on 17 October 1984, and a retrial was ordered. On 5 November 1984, the
military tribunal of Elazig sentenced the author to two and a half years'
imprisonment and 10 months' internal exile in Izmir, for having assisted
militants of KAWA. During his internal exile in Izmir he had to present
himself to the police every day. Eventually, the author found a job and
bought a house in Izmir.
2.3 The author claims that he was arrested several times in 1988 and 1989
and kept in detention for short periods of time, not over six days, because
of his political activities (distribution of flyers). The author claims that
during these periods of detention, he was put under pressure to denounce his
friends. He also states that he was tortured, without further specifying his
claim. In the circumstances, the author thought it better to leave Izmir and
to return to his province Tunceli, but when he visited the region in July
1990, he found that the repression was even worse there. By chance, the
author met a member of parliament, whom he told about the situation in
Tunceli. Later, the parliamentarian, after having conducted his own
investigations, raised the matter in parliament. According to the author,
the military then started looking for him. In the beginning of September
1990, when the author was visiting his brother in Bursa, the police searched
his house, confiscated two books and questioned his wife about his
whereabouts. The author then decided to leave and to seek asylum in
Switzerland. He left Turkey with a falsified identity card on 20 September
1990.
2.4 Counsel submits a copy of a medical report, dated 25 January 1995, which
concludes that the author suffers from a post-traumatic stress disorder.
Some scars on the left side of his body are compatible with tortures to
which he allegedly was submitted during his imprisonment in 1983-1984.
2.5 The author states that, after his departure, his wife was put under such
pressure by the police that she left the town where she was living and moved
to Bursa to live with family. In July 1992, the author's brother was
allegedly detained for 10 days and maltreated.
2.6 On 1 October 1990, the author requested asylum in Switzerland. On 5
November 1990, he was heard by the cantonal authorities and on 10 August
1992 by the Office Fédéral des Réfugiés. On 17 December 1992, the Office
informed the author that it had contacted the Swiss embassy in Ankara in
order to verify some of the author's allegations, and that it appeared from
the reply that the member of parliament with whom the author had said to
have had contact did not remember him, that there was no passport
prohibition for the author, and that a lawyer had represented the author in
a civil judicial procedure after his departure in 1990.
2.7 On 8 January 1993, author's counsel spoke with the author's wife in
Istanbul. She stated that her house had been under constant surveillance by
the police and that she had contacted a lawyer because she felt threatened.
She then had moved to Bursa, without officially taking up residence there in
order not to be disturbed. The Swiss authorities were informed of the
contents of the conversation. On 5 July 1993, counsel transmitted to the
Office Fédéral des Réfugiés a copy of a letter from the lawyer in Turkey, in
which he stated that the embassy had misunderstood him and that he was not
authorized to represent the author, but only his wife.
2.8 On 12 July 1993, the author was informed that the Office Fédéral des
Réfugiés, on 1 July 1993, had rejected his request for asylum. The Office
considered that the author's earlier imprisonment was too remote in time as
to constitute grounds for fear of persecution. The decision was further
based on contradictions concerning the author's arrests in the years prior
to his departure from Turkey, as well as concerning the intensity of his
political engagement.
2.9 On 7 September 1993, the author appealed the decision to the Commission
suisse de recours en matière d'asile. On 8 February 1994, the Office Fédéral
des Réfugiés once more approached the embassy in Istanbul for additional
information. Basing itself on this information, the Office found that the
author was not listed in Turkey, that the police did not have him on record,
and that he could freely change his residence. It considered unlikely that
the initial information given by the Turkish lawyer to the embassy was based
on a misunderstanding.
2.10 Author's counsel, by memorandum dated 25 May 1994, contested these
findings, and transmitted a copy of a letter, dated 4 May 1994, from the
member of parliament, which confirmed his meeting with the author in the
summer of 1990. On 18 October 1994, the author informed the Office of the
destruction of his native village in the province of Tunceli following
political unrest, and of his brother's arrest.
2.11 On 27 October 1994, the Appeal Commission rejected the author's appeal;
the author was ordered to leave Switzerland before 15 February 1995. The
Commission considered that the author's imprisonment and subsequent internal
exile were credible, but that the more recent political activities and
arrests were not. It considered that, if the author feared difficulties in
Izmir because of the local police, he could go to another part of the
country.
2.12 As regards the author's argument that a return to Turkey would expose
him to maltreatment and torture, the Appeal Commission found that by
reference to the general situation in Turkey, the author's Kurdish
background and origin, no special, individual and concrete risk had been
shown to preclude the author's return. It considered that, since many Kurds
lived peacefully in central and west Turkey, there was no reason why the
author could not return to his country.
The Complaint
3.1 Counsel argues that Turkey is among the countries where torture is
systematically being practised and human rights systematically being
violated. In this context, counsel refers to the Committee's report of
November 1993, and to Amnesty International reports. It is stated that since
the publication of the Committee's report, the situation has not improved
and that several detainees have died of torture. Others have disappeared or
become victim of arbitrary execution. According to counsel, many of the
persons affected have in the past supported the Kurdish cause.
3.2 As regards the author's personal situation, counsel submits that the
fact that the author is a Kurd, that he originates from Tunceli, a province
with a strong PKK presence where repression is heavy, that he is and
continues to be a sympathizer of the illegal KAWA, that he has a criminal
record in Turkey for having committed political crimes, that he has already
been tortured in his country, and that he has been put under pressure to
become an informer, indicates that he belongs to several target groups of
Turkish repression. If the author crosses the border, he would certainly be
arrested because he is not in possession of a passport or a valid identity
card.
3.3 It is further stated that cities in Turkey keep a registry of all Kurds
who take up residence within their borders, in order to facilitate
investigations into their political activities, and that razzias are
regularly held in Kurdish neighbourhoods. The author thus runs a real risk
of being arrested and consequently tortured.
State Party's Observations
4. On 10 February 1995, the Committee, through its Special Rapporteur,
transmitted the communication to the State party for comments and requested
the State party not to expel the author while his communication was under
consideration by the Committee.
5. By submission of 3 April 1995, the State party informed the Committee
that it did not challenge the admissibility of the communication.
6.1 By submission of 10 August 1995, the State party informed the Committee
that it had deferred the author's expulsion, in compliance with the
Committee's request.
6.2 The State party recalls that the author's request for asylum was
rejected by the Office Fédéral des Réfugiés on 1 July 1993, and that his
appeal was dismissed by the Commission suisse de recours en matière d'asile
on 27 October 1994. The decisions were based on contradictory declarations
made by the author (concerning the number of arrests, his political
activities and his encounter with the member of parliament), on the fact
that, contrary to his assertions, no record existed in Turkey in respect to
him, that no recent acts of persecution could justify his departure from
Turkey, the improbability that he would personally be threatened with
torture, and the possibility for the author to settle in a part of Turkey
where he would not be at risk. The State party emphasizes that its
authorities have seriously examined the author's claim and that, in case of
doubt, they have contacted the Swiss embassy in Ankara. The information so
gathered has been transmitted to the author for comments, and he has had
access to the whole file which was before the domestic authorities. His
right to be heard has thus fully been complied with and the facts have been
established in as detailed a fashion as possible.
6.3 The State party explains that, in the instant case, the author has
contradicted himself on numerous occasions. For instance, at the first
hearing, he claimed to have been arrested four or six times since 1988, and
to have been held each time for three or four days. Before the cantonal
authorities, he claimed to have been arrested four times and to have been
held for between three to six days. Furthermore, before the Office Fédéral
des Réfugiés he claimed to have been arrested 15 or 16 times.
6.4 Also, before the cantonal authorities the author claimed to have been
kept in detention for four days in February 1988 because he had requested a
passport. Before the Office Fédéral des Réfugiés, however, he claimed that
he was detained on that occasion because of suspicions that he had renewed
contact with the organization KAWA. The author's account of his political
activities also shows inconsistencies, and the State party notes that he was
not familiar with important dates connected to his alleged ideological
affiliation.
6.5 The State party further refers to inconsistencies in the author's
account of his purported encounter with the parliamentarian, and points to
the contradictory declarations made by the author's lawyer in Turkey, who
first affirmed having represented the author in a judicial procedure after
his departure, and then later revoked this. According to the State party, it
is likely that the lawyer made his second declaration as a favour to the
author.
7.1 The State party notes the author's reasons for fearing detention and
torture upon his return in Turkey, but submits that according to information
collected by the Swiss embassy in Ankara, there is no outstanding file on
the author, he is no longer sought by the police and no prohibition for a
passport is in force. In these circumstances, the State party is of the
opinion that it can reasonably demand of the author to establish himself in
another region of Turkey. The State party submits that in general only
listed individuals are being targeted by the authorities. Although no
arbitrary actions by the police can be excluded, the State party is of the
opinion that the risk is minimal if one avoids the more sensitive places.
7.2 The State party refers to the text of article 3 of the Convention, and
argues that the author has invoked the general situation of the Kurds in
Turkey to substantiate his fear of being subjected to torture, but has not
demonstrated that he personally risks being subjected to treatment in
violation of article 3 of the Convention.
7.3 The State party refers to its general asylum policy with regard to Kurds
from Turkey and states that its authorities examine regularly and carefully
the situation in the different regions of Turkey. The State party
acknowledges that it is true that in some areas the situation of the Kurd
population is difficult because of armed conflict between Turkish security
forces and guerrilla movements. However, the State party states that these
conflicts are limited to certain regions and that it is not justified on
this basis to proceed to a global judgement of all asylum claims of Kurds.
The State party maintains that Kurds are not threatened in all regions in
Turkey and that it is sufficient to examine in each case individually
whether the appellant is personally affected by the situation and whether he
could establish himself in another region.
7.4 The State party emphasizes that it does not contest the author's
conviction and periods of detention between 1981 and 1985. However, it
argues that these events happened too long ago to justify the author's
departure from Turkey in 1990. Also, the probability that the author was
tortured between 1981 and 1985 does not justify the conclusion that
substantial grounds exist that he will be in danger of being subjected to
torture if returned to Turkey today. In this context, the State party
explains that in terms of Swiss asylum practice, a causal link must be
established between the acts of persecution against an appellant and his
decision to flee the country. In the author's case, this link cannot be
established.
8.1 Finally, the State party recalls that Turkey ratified the Convention on
2 August 1988 and has recognized the competence of the Committee under
article 22 to receive and examine individual communications. Consequently,
Turkey is under an obligation to take measures to prevent acts of torture in
its territory. Further, the State party notes that Turkey is a member of the
Council of Europe, that it has ratified the European Convention on Human
Rights and Fundamental Freedoms and recognizes the right of individual
petition as well as the obligatory jurisdiction of the European Court of
Human Rights. Moreover, Turkey has ratified the European Convention for the
Prevention of Torture and is subject to inspection by the European
Committee.
8.2 The State party refers to the Committee's views in communication No.
13/1993 (Mutombo v. Switzerland) where the fact that Zaire was not a party
to the Convention formed part of the Committee's deliberations leading to
the conclusion that the State party was under an obligation not to expel Mr.
Mutombo to Zaire. The State party draws the Committee's attention to the
serious and paradoxical consequences if the Committee were to decide that
the return of the author to Turkey would constitute a violation of article 3
of the Convention by Switzerland, bearing in mind that Turkey is not only a
party to the Convention but also has accepted the Committee's competence to
examine individual complaints.
Counsel's Comments
9.1 By submission of 10 November 1995, counsel states that, on 6 December
1994, the author wrote a letter to the Prosecutor in Izmir to ask him for a
copy of his record. He has received no reply, but in January 1995 the police
came to see the author's former neighbours in Izmir and inquired after him.
According to counsel, this shows that the police in Turkey are still looking
for the author. Counsel doubts therefore the information given by the Swiss
embassy in Ankara according to which the author is not listed by the police.
9.2 Counsel acknowledges that the Swiss authorities have examined the
author's file in a detailed manner, but contends that its examination lacked
depth and that the evidence in favour of the author has not been properly
evaluated. In this connection, counsel claims that the State party
appreciates more the information acquired by its own mission in Turkey than
the information provided by the author. Counsel does not deny the
contradictions and inconsistencies in the author's story but submits that
the Swiss authorities never took into account the effect of torture on the
author's memory and ability to concentrate. Counsel adds that the hearings
in themselves create considerable stress leading to mistakes and that only
in rare cases refugee claimants do not contradict themselves during the
procedure. Moreover, counsel questions the seriousness of the contradictions
and their relevance to the heart of the author's claim.
9.3 As regards the meeting with the member of parliament, counsel recalls
that the parliamentarian confirmed this meeting in a letter and that he has
explained that he was caught by surprise by the phone call from the Swiss
embassy, which interrupted him in his work.
9.4 Counsel rejects the State party's suggestion that the lawyer in Turkey
wrote his letter as a favour to the author and points out that a copy of the
authorization to represent the author's wife was enclosed. Counsel submits
that the written document submitted by the author should carry more weight
than a report based on a telephone conversation, during which
misunderstandings may have occurred.
9.5 Counsel maintains that the author would be in danger if returned to
Turkey and denies that he could seek refuge in another part of the country.
In this connection, counsel submits that the situation continues to
deteriorate and that the author has already had to flee Izmir, and that his
wife, who resettled in Bursa, has again seen the situation deteriorate
there. Counsel claims that not only listed persons run the risk of being
arrested, but that large groups are being threatened with arrest, especially
young people and those who originally come from Tunceli. According to
counsel, it is no longer possible to avoid places at risk.
9.6 Counsel does not deny that the Swiss authorities take the situation in
Turkey into due account when deciding refugee claims by Kurds, as is shown
by the fact that 50 per cent of the refugee claimants from Turkey are
granted asylum and that another 25 per cent are provisionally allowed to
stay in Switzerland. In the instant case, however, counsel claims that the
author's file was not examined with the requisite objectivity.
9.7 Counsel submits that, despite the fact that Turkey has ratified the
Convention against Torture, it has never actually tried to combat torture,
which is still common practice in the country. Counsel states that more and
more persons disappear in detention and that hardly any action is taken
against alleged torturers. Counsel doubts whether, in these circumstances,
the ratification of the Convention can be used against the author's claim
that he fears torture. Counsel argues that the mere fact that a country has
ratified the Convention does not discharge a State party from its
obligations under article 3 to determine whether substantial grounds exist
for believing that a person would be in danger of being subjected to torture
in that country. In this connection, counsel argues that the factual
situation in a country, and not only its international obligations, should
be taken into account.
Decision on Admissibility and Examination of the Merits
10. Before considering any claims contained in a communication, the
Committee must decide whether or not it is admissible under article 22 of
the Convention. The Committee has ascertained, as it is required to do under
article 22, paragraph 5 (a), of the Convention, that the same matter has not
been and is not being examined under another procedure of international
investigation or settlement. The Committee notes that the State party has
not raised any objections to the admissibility of the communication and that
it has provided the Committee with its observations concerning the merits of
the communication. The Committee finds therefore that no obstacles to the
admissibility of the communication exist and proceeds with the consideration
of the merits of the communication.
11.1 The issue before the Committee is whether the forced return of the
author to Turkey would violate the obligation of Switzerland under article 3
of the Convention not to expel or to return a person to another State where
there are substantial grounds for believing that he would be in danger of
being subjected to torture.
11.2 Pursuant to article 3, paragraph 1, the Committee must decide whether
there are substantial grounds for believing that Mr. Alan would be in danger
of being subject to torture upon return to Turkey. In reaching this
conclusion, the Committee must take into account all relevant
considerations, pursuant to article 3, paragraph 2, including the existence
of a consistent pattern of gross, flagrant or mass violations of human
rights. The aim of the determination, however, is to establish whether the
individual concerned would be personally at risk of being subjected to
torture in the country to which he would return. It follows that the
existence of a consistent pattern of gross, flagrant or mass violations of
human rights in a country does not as such constitute a sufficient ground
for determining that a person would be in danger of being subjected to
torture upon his return to that country; specific grounds must exist that
indicate that the individual concerned would be personally at risk.
Similarly, the absence of a consistent pattern of gross violations of human
rights does not mean that a person cannot be considered to be in danger of
being subjected to torture in his specific circumstances.
11.3 In the instant case, the Committee considers that the author's ethnic
background, his alleged political affiliation, his history of detention, and
his internal exile should all be taken into account when determining whether
he would be in danger of being subjected to torture upon his return. The
State party has pointed to contradictions and inconsistencies in the
author's story, but the Committee considers that complete accuracy is seldom
to be expected by victims of torture and that such inconsistencies as may
exist in the author's presentation of the facts are not material and do not
raise doubts about the general veracity of the author's claims.
11.4 The Committee has noted the State party's argument that the author has
invoked the general situation of Kurds in Turkey to substantiate his fears
of torture, but that he has failed to demonstrate that he personally risks
to be subject to torture. The Committee has also noted the State party's
statement that, according to information collected by its embassy in Ankara,
the author is no longer sought by the police and that no prohibition of a
passport is in force for him. On the other hand, the author's counsel has
stated that, according to the author's wife, his house in Izmir had been
under constant surveillance by the police, also after his departure, and
that, in January 1995, the police questioned his former neighbours about the
author. Furthermore, since the author left, his brother has been arrested on
more than one occasion and his native village was demolished. As regards the
State party's argument that the author could find a safe area elsewhere in
Turkey, the Committee notes that the author already had to leave his native
area, that Izmir did not prove secure for him either, and that, since there
are indications that the police are looking for him, it is not likely that a
"safe" area for him exists in Turkey. In the circumstances, the Committee
finds that the author has sufficiently substantiated that he personally is
at risk of being subjected to torture if returned to Turkey.
11.5 Finally, the Committee has taken note of the State party's argument
that Turkey is a party to the Convention against Torture and has recognized
the Committee's competence under article 22 of the Convention to receive and
examine individual communications. The Committee regretfully notes, however,
that practice of torture is still systematic in Turkey, as attested to in
the Committee's findings in its inquiry under article 20 of the Convention.
[FNa] The Committee observes that the main aim and purpose of the Convention
is to prevent torture, not to redress torture once it has occurred, and
finds that the fact that Turkey is a party to the Convention and has
recognized the Committee's competence under article 22, does not, in the
circumstances of the instant case, constitute a sufficient guarantee for the
author's security.
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[FNa] Official Records of the General Assembly, Forty-eighth Session,
Supplement No. 48 (A/48/44/Add.1).
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11.6 The Committee concludes that the expulsion or return of the author to
Turkey in the prevailing circumstances would constitute a violation of
article 3 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.
12. In the light of the above, the Committee is of the view that, in the
prevailing circumstances, the State party has an obligation to refrain from
forcibly returning Ismail Alan to Turkey.
[Done in English, French, Russian and Spanish, the English text being the
original version.]
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