against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 20 November 1998,
Having concluded its consideration of communication No. 101/1997, submitted
to the Committee against Torture under article 22 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Having taken into account all information made available to it by the author
of the communication, his counsel and the State party,
Adopts its Views under article 22, paragraph 7, of the Convention.
1. The author of the communication is Mr. Halil Haydin, a Turkish national
currently residing in Sweden, where he is seeking refugee status. He claims
that his forced return to Turkey would constitute a violation by Sweden of
article 3 of the Convention against Torture. He is represented by counsel.
The Facts as Presented by the Author
2.1. The author is a Turkish national of Kurdish ethnic origin from Bagdered,
close to Adiyaman, in the south-eastern part of Turkey. He states that his
father and brother were active sympathizers of the PKK (Partya Karkeren
Kurdistan) and that in 1984 his father was sentenced to two years'
imprisonment by a military court for his political activities. The author
himself began to support the organization actively in 1985. He started by
giving food and shelter to members of the PKK, but eventually also handed
out propaganda leaflets in his and surrounding villages.
2.2. In 1985 the author was arrested together with his brother and kept in
detention without a trial in Pram Palace prison, Adiyaman, for a period of
40 days, during which he was subjected to torture. He was beaten with fists,
truncheons and other objects on his back, lower legs, face and the soles of
his feet. He also received electric shocks.
2.3. After his release the author continued his political activities, of
which he claims the Turkish authorities were aware. Whenever there was a
clash between the PKK and Turkish police or military near the author's
village he was arrested, kept in detention, interrogated for a couple of
hours and then released. He was beaten and insulted in order to force him to
cooperate with the Turkish authorities and to reveal names of PKK
sympathizers. Following one of those clashes between the PKK and the
security forces in March 1990 in a neighbouring village, the author was
informed that his name had been revealed to the authorities. He then fled,
together with his father, his brother and other inhabitants of his village,
to the mountains. From there, he received help from the PKK to flee the
country. He arrived in Sweden via Romania, where he stayed for one and a
2.4. The author arrived in Sweden on 7 July 1990 and immediately applied for
asylum. On 20 June 1991 the National Immigration Board rejected his
application. His appeal was subsequently rejected by the Aliens Appeal Board
on 1 December 1992. A so-called "new application" was turned down by the
Aliens Appeal Board on 23 November 1994, and two further "new applications"
were rejected on 29 April 1996 and 15 November 1996, respectively.
2.5. The author went into hiding and in December 1996, the immigration
authorities' decision to expel the author could no longer be enforced due to
the statute of limitation. A new asylum procedure was then initiated. On 2
October 1997, the National Immigration Board rejected the author's new
request for asylum. His appeal was subsequently rejected by the Aliens
Appeal Board on 27 November 1997. Another "new application" was turned down
on 19 December 1997.
3.1. In view of his political activities, the author claims that there exist
substantial grounds to believe that he would be subjected to torture if he
were to be returned to Turkey. His forced return would therefore constitute
a violation by Sweden of article 3 of the Convention against Torture.
3.2. Counsel provides a medical report from the Center for Torture and
Trauma Survivors in Stockholm indicating that the author suffers from a
post-traumatic stress disorder (PTSD). He states that the report neither
confirms nor denies that the author has been subjected to physical torture.
However, the medical experts underline that the forms of torture which the
author claims he was subjected to do not necessarily leave physical marks.
3.3. In support of the author's claim, reference is made to a letter from
the UNHCR Regional Office in Stockholm in which it is stated that it is
essential to find out whether Turkish asylum-seekers who are returned would
be at risk of being suspected of connection to or sympathy with the PKK. If
this was found to be the case, they should not be considered as having been
able to avail themselves of an internal flight alternative.
The State Party's Observations
4.1. By submission of 20 February 1998, the State party informs the
Committee that, following the Committee's request under rule 108, paragraph
9, of its rules of procedure, the National Immigration Board decided to stay
the expulsion order against the author while his communication is under
consideration by the Committee.
4.2. As regards the domestic procedure, the State party indicates that the
basic provisions concerning the right of aliens to enter and to remain in
Sweden are found in the 1989 Aliens Act, as amended on 1 January 1997. There
are normally two bodies dealing with applications for refugee status: the
National Board of Immigration and the Aliens Appeal Board. In exceptional
cases, an application can be referred to the Government by either of the
boards; the Government has no jurisdiction of its own in cases not referred
to it by either of the boards. Decisions to refer a case to the Government
are taken by the boards independently. The State party explains that the
Swedish Constitution prohibits any interference by the Government, the
Parliament or any other public authority in the decision-making of an
administrative authority in a particular case. According to the State party,
the National Board of Immigration and the Aliens Appeal Board enjoy the same
independence as a court of law in this respect.
4.3. The Aliens Act was amended on 10 January 1997. According to the amended
Act (chap. 3, sect. 4, in conjunction with sect. 3), an alien is entitled to
a residence permit if he or she has a well-founded fear of being subjected
to the death penalty or to corporal punishment or to torture or other
inhuman or degrading treatment or punishment. Under chapter 2, section 5
(b), of the Act, an alien who is refused entry can reapply for a residence
permit if the application is based on circumstances which have not
previously been examined, and if either the alien is entitled to asylum in
Sweden or if it will otherwise be in conflict with humanitarian requirements
to enforce the decision to refuse entry to or expel the alien. New
circumstances cannot be assessed by the administrative authorities ex
officio, but only upon application.
4.4. Chapter 8, section 1, of the Act, which corresponds to article 3 of the
Convention against Torture, as amended, now provides that an alien, who has
been refused entry or who has been ordered expelled may never be sent to a
country where there are "reasonable grounds" (previously "firm reasons") to
believe that he or she would be in danger of suffering capital or corporal
punishment or of being subjected to torture or other inhuman or degrading
treatment or punishment (text in italics added), nor to a country where he
is not protected from being sent on to a country where he would be in such
4.5. As to the admissibility of the communication, the State party submits
that it is not aware of the same matter having been presented to another
international body of international investigation or settlement. The State
party explains that the author can at any time lodge a new application for
re-examination of his case to the Aliens Appeal Board, based on new factual
circumstances. Finally, the State party contends that the communication is
inadmissible as incompatible with the provisions of the Convention.
4.6. As to merits of the communication, the State party refers to the
Committee's jurisprudence in the cases of Mutombo v. Switzerland [FNb] and
Ernest Gorki Tania Paez v. Sweden, [FNc] and the criteria established by the
Committee: first, that a person must personally be at risk of being
subjected to torture and second, that such torture must be a necessary and
foreseeable consequence of the return of the person to his or her country.
[FNa] Communication No. 13/1993 (CAT/C/12/D/13/1993), Views adopted on 27
[FNb] Communication No. 39/1996 (CAT/C/18/39/1996), Views adopted on 7 May
4.7. The State party reiterates that when determining whether article 3 of
the Convention applies, the following considerations are relevant: (a) the
general situation of human rights in the receiving country, although the
existence of a consistent pattern of gross, flagrant or mass violations of
human rights is not in itself determinative; (b) the personal risk of the
individual concerned of being subjected to torture in the country to which
he would be returned; and (c) the risk of the individual being subjected to
torture if returned must be a foreseeable and necessary consequence. The
State party recalls that the mere possibility that a person will be
subjected to torture in his or her country of origin is not sufficient to
prohibit his or her return on the ground of incompatibility with article 3
of the Convention.
4.8. The State party states that it is aware of the serious human rights
problems occurring in Turkey, in particular in the south-eastern part of the
country. It is a well-known fact that arbitrary arrests, demolitions of
whole villages and torture are used in the fight against Kurdish
separatists. However, in the State party's view, the situation is not so
serious that it constitutes a general obstacle to the deportation of Turkish
citizens of Kurdish origin to Turkey. A large part of the population
consists of persons of Kurdish origin. While many of them live in the
south-eastern part of Turkey, others are scattered throughout other parts of
the country where they are completely integrated into the Turkish society in
general. It should be stressed that, according to current practice, if an
expulsion order is carried out with respect to a Turkish citizen of Kurdish
origin, he or she will not be deported from Sweden to the Kurdish areas
against his or her will, but to Istanbul or Ankara.
4.9. As regards its assessment of whether or not the author would be
personally at risk of being subjected to torture, the State party relies on
the evaluation of the facts and evidence made by the National Immigration
Board and the Aliens Appeal Board. The facts and circumstances invoked by
the author have been examined twice by the National Immigration Board and
six times by the Aliens Appeal Board. The Swedish authorities have not
considered credible the information which the author has provided about his
political activities and about the torture and ill-treatment which he claims
to have undergone. When re-examining the facts in the second set of
proceedings, the official responsible for the case at the National
Immigration Board heard the author in person and was able to make an
assessment of the reliability of the information which he submitted orally.
4.10. There are a number of elements in the author's story which give rise
to doubts. Firstly, the author has continuously reiterated that his
political activities were always known to the Turkish authorities. Still,
the author was never brought to trial and was released each time he was
apprehended. If the applicant's story in this respect was true, more severe
actions on the part of the Turkish authorities would be expected.
4.11. The author's credibility is further diminished by the fact that he has
not been able to produce a consistent version of the events leading to his
flight from Turkey. In his statement made on 14 September 1990, the author
claimed that he had regularly brought PKK leaflets from the Syrian Arab
Republic. During the second set of proceedings, this information was changed
to the effect that guerilla agents came to the village and left posters.
Finally, in the author's submission to the National Immigration Board on 8
June 1997, he claimed that the leaflets/posters were either fetched in Syria
or brought to his home.
4.12. Further, the author had also given two completely different versions
of how the military authorities discovered his activities. In 1990 he
claimed that one of the injured guerillas had informed the military
authorities of his activities for the PKK. However, before the National
Immigration Board in 1997 he stated that three guerillas had been killed in
a clash outside his native village and that the military authorities
suspected the villagers and the village elder of helping the PKK. Then he
stated that the village elder had told him that the military authorities had
found documents on the dead bodies with the names of contacts in the village
and that he believed that the author's name was among them. In view of the
current situation of armed conflict in which the PKK is involved in the
south-eastern part of Turkey, it is questionable whether a PKK member would
take the risk of carrying on his person a list of names of sympathizers.
4.13. The Government does not question the fact that the author exhibited
certain symptoms of PTSD. He also suffers from depression, panic, feelings
of aggression and suicidal ideas. However, the later symptoms stem from his
insecure refugee situation and the fact that he has been staying illegally
in Sweden for six years. The medical examinations that have been undertaken
have found no physical evidence to confirm that he had previously been
subjected to torture. In this context it should also be noticed that in 1991
he claimed that his molars had been knocked out during torture, while in the
forensic reports from 1997 it is recorded that the teeth were pulled by the
village barber because of toothache.
4.14. The Government states that the author has not made it credible that he
has been engaged in political activities that would make him of interest to
the Turkish authorities. He has not substantiated that he had been arrested
and undergone torture or other forms of ill-treatment. The Government shares
the view of UNHCR and the Aliens Appeal Board that no internal place of
refuge is available for persons who risk being suspected of being active in
or sympathizers of the PKK. However, since the author has not substantiated
that he would run any particular risk of being detained and tortured, the
Government is of the opinion that if the author wishes to avoid the
disturbances that undoubtedly characterize the south-east he has the
possibility of staying in another part of the country.
4.15. The State party concludes that, in the circumstances of the present
case, the author's return to Turkey would not have the foreseeable and
necessary consequence of exposing him to a real risk of torture. An
enforcement of the expulsion order against the author would therefore not
constitute a violation of article 3 of the Convention.
5.1. Regarding the question of admissibility, counsel points out, in her
submission dated 12 May 1998, that the procedure for re-examining a case
provided for in chapter 2, section 5 (b), of the Aliens Act requires that
new circumstances be presented to the Aliens Appeal Board. In the present
case there are no new circumstances. Therefore, all domestic remedies have
5.2. Counsel maintains that the Swedish Government has not evaluated the
risk the author would face if he were to be expelled to Turkey, but has
focused merely on his credibility. Counsel acknowledges that the author has
on different occasions given the authorities an inconsistent account of his
political activities and his flight; but these inconsistencies are not
material and should be viewed in the light of the fact that the author
suffers from PTSD. In this context counsel refers to the Committee's
jurisprudence in the cases of Pauline Muzonzo Paku Kisoki v. Sweden and
Kaveh Yaragh Tala v. Sweden where it is stated 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". Counsel
reiterates that the author is suffering from PTSD. She states that when
asked why he had given different answers to the National Immigration Board
in 1997 and during the initial investigative procedure in 1990, the author
cried out that although he knew it was important to repeat what he had said
almost seven years before, he simply couldn't remember.
5.3. Concerning the inconsistencies, counsel further states that they are
not of the magnitude that the State party claims. She states that the author
has in fact not given two completely different versions of how the military
discovered his activities, since the core elements are the same. Further,
counsel draws the attention of the Committee to the fact that the question
of how exactly the author's activities were discovered by the military in
March 1990 is not really an issue, since by that time the author had already
been harassed by the Turkish authorities for several years.
5.4. Counsel further refers to the Swedish Government's remark that no
physical medical evidence had been produced to indicate that the author had
been subjected to torture. She states that according to the specialists at
the Center for Torture and Trauma Survivors in Stockholm it is not
surprising that there are no physical traces on the author's body, since the
forms of torture to which the author was subjected do not necessarily leave
5.5. Counsel concludes that the author has presented sufficient evidence
that he was politically active in the PKK and that he is well known to the
Turkish authorities; that he has been detained, tortured and ill-treated
because of his political activities; and finally that the human rights
situation in Turkey is such that the group most likely to be exposed to
harassment, prosecution and persecution are Kurds suspected of being
connected to or being sympathizers of the PKK. She therefore claims that the
author's return to Turkey would have the foreseeable and necessary
consequence of exposing him to a real risk of being detained and tortured.
5.6. On 29 October 1998, counsel submitted further information to the
Committee, indicating that according to a Kurdish solidarity association
based in Sweden, of which the author has been a member since 1996, the
author is wanted by the Turkish police and the Turkish security service. It
is further claimed that the author's family in Turkey has been questioned by
the police on three occasions during the past six months about the
whereabouts of the author. With respect to this additional information the
State party states, in a letter sent to the Committee on 16 November 1998,
that it has not altered its position regarding the admissibility and merits
of the communication, as described above.
Issues and Proceedings Before the Committee
6.1. Before considering any claims contained in a communication, the
Committee against Torture 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 is
further of the opinion that all available domestic remedies have been
exhausted, in view of the fact that no new circumstances exist on the basis
of which the author could file a new application with the Aliens Appeal
Board. The Committee finds that no further obstacles to the admissibility of
the communication exist.
6.2. The issue before the Committee is whether the forced return of the
author to Turkey would violate the obligation of Sweden 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.
6.3. The Committee must decide, pursuant to paragraph 1 of article 3,
whether there are substantial grounds for believing that the author would be
in danger of being subject to torture upon return to Turkey. In reaching
this decision, the Committee must take into account all relevant
considerations, pursuant to paragraph 2 of article 3, 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 or she 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 particular 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 or her specific circumstances.
6.4. The Committee is aware of the serious human rights situation in Turkey.
Reports from reliable sources suggest that persons suspected of having links
with the PKK are frequently tortured in the course of interrogations by law
enforcement officers and that this practice is not limited to particular
areas of the country. In this context, the Committee further notes that the
Government has stated that it shares the view of UNHCR, i.e. that no place
of refuge is available within the country for persons who risk being
suspected of being active in or sympathizers of the PKK.
6.5. The Committee recalls that, for the purposes of article 3 of the
Convention, the individual concerned must face a foreseeable, real and
personal risk of being tortured in the country to which he is returned. The
Committee wishes to point out that the requirement of necessity and
predictability should be interpreted in the light of its general comment on
the implementation of article 3 which reads: "Bearing in mind that the State
party and the Committee are obliged to assess whether there are substantial
grounds for believing that the author would be in danger of being subjected
to torture were he/she to be expelled, returned or extradited, the risk of
torture must be assessed on grounds that go beyond mere theory or suspicion.
However, the risk does not have to meet the test of being highly probable"
(A/53/44, annex IX, para. 6).
6.6. The Committee notes the medical evidence provided by the author. The
Committee notes in particular that the author suffers from a post-traumatic
stress disorder and that this has to be taken into account when assessing
the author's presentation of the facts. The Committee notes that the
author's medical condition indicates that the author has in fact been
subjected to torture in the past.
6.7. In the author's case, the Committee considers that the author's family
background, his political activities and affiliation with the PKK, his
history of detention and torture, as well as indications that the author is
at present wanted by Turkish authorities, should be taken into account when
determining whether he would be in danger of being subjected to torture upon
his return. The Committee notes that the State party has pointed to
contradictions and inconsistencies in the author's story and further notes
the author's explanations for such inconsistencies. The Committee considers
that complete accuracy is seldom to be expected by victims of torture,
especially when the victim suffers from post-traumatic stress syndrome; it
also notes that the principle of strict accuracy does not necessarily apply
when the inconsistencies are of a material nature. In the present case, the
Committee considers that the presentation of facts by the author does not
raise significant doubts as to the trustworthiness of the general veracity
of his claims.
6.8. In the circumstances, the Committee considers that substantial grounds
exist for believing that the author would be in danger of being subjected to
torture if returned to Turkey.
6.9. In the light of the above, the Committee is of the view that the State
party has an obligation to refrain from forcibly returning the author to
Turkey, or to any other country where he runs a real risk of being expelled
or returned to Turkey.
[Done in English, French, Russian and Spanish, English being the original.]