against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 16 November 1999,
Having concluded its consideration of communication No. 137/1999, 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 and the State party,
Adopts the following decision:
1.1 The author of the communication is Mr. G.T., a Turkish citizen of
Kurdish origin born in 1975 and currently residing in Switzerland, where he
has applied for asylum. His application has been rejected and he alleges
that his forced repatriation to Turkey would constitute a violation by
Switzerland of article 3 of the Convention against Torture. He is
represented by counsel.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee transmitted the communication to the State party on 18 June 1999.
At the same time, the Committee, acting in accordance with rule 108,
paragraph 9, of its rules of procedure, requested the State party not to
expel the author to Turkey while his communication was being considered. On
18 October 1999, the State party notified the Committee that measures had
been taken to prevent the author from being returned to Turkey while his
communication was pending before the Committee.
The Facts as Submitted by the Author
2.1 The author comes from south-eastern Turkey; he was born on 25 November
1975 in Dogan Köy, a village near Erzincan, and lived there until 1993. He
states that at that time villagers were subjected to torture by the Turkish
army and that young people were systematically arrested on suspicion of
being partisans, resistance fighters or guerrillas, and tortured, especially
in the village of Dogan Köy, which, according to the author, was notorious
for its links with the Kurdistan Workers' Party (PKK).
2.2 The author and his parents left this village when he was young to settle
in Istanbul. As a student, he was very active in politics. As a supporter of
the Youth Union of Kurdistan (YCK), the youth branch of the PKK, until 1992,
the author took part in demonstrations, meetings and the distribution of
pamphlets. He also collected money for the cause and helped to recruit new
2.3 On 29 May 1995, when he was about to be called up, the author left
Turkey to join his brother, a Swiss citizen, in Switzerland. His departure
was also prompted by his fear of having to do his military service. He
submitted an application for asylum on 27 July 1995, but it was turned down
on 3 November of the same year. On 29 April 1999, the Swiss Appeal
Commission on Asylum Matters, in its ruling on his appeal, confirmed the
initial decision to refuse asylum.
2.4 The author alleges that, since he settled in Switzerland, the police
have made several visits to his parents' home in Istanbul because he was an
active opponent of the Government and a deserter. After several visits, his
parents were pressured into admitting to the police that the author had
taken refuge in Switzerland and had applied for asylum there. As a result,
the Turkish consulate in Geneva twice summoned his brother to the consulate
so that the author could clarify his situation in Switzerland and the
problem of his military service. The author made no response.
2.5 In addition to the facts noted above, the author cites problems that
members of his family have had and that could be prejudicial to him if he
returns. In this connection, he claims that two female and two male cousins
who lived in his home village and who were politically active in the PKK
guerrilla movement were killed in clashes with the Turkish army. The face of
one of the two girls had been so badly disfigured that she could only be
identified by a gold tooth.
Merits of the Complaint
3.1 The author maintains that his forcible return to Turkey would constitute
a violation by Switzerland of its obligations under the Convention since, in
view of the reasons which prompted his departure from Turkey, there were
substantial grounds for believing that he would be at risk of being
3.2 After giving a brief history of the Kurdish issue, the author stresses
that torture is institutionalized in Turkey and that, according to Amnesty
International, almost all of the 250,000 or so people arrested between 1980
and 1988 for political reasons were tortured. The author also recalls that,
according to Amnesty International, 2,500 people were killed in 1996 alone,
a year during which the state of emergency was in place without
interruption. During a state of emergency, a person can be held in police
custody for up to 10 days, including 4 days incommunicado. It is generally
accepted that to hold a person incommunicado in this way is conducive to
acts of torture. For example, a certain C.S., after deserting during his
military service, has said he was subjected to extremely brutal treatment,
such as having a truncheon inserted in his anus and receiving electrical
shocks to the genitals.
3.3 Again according to Amnesty International, the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment said
in its second public statement on Turkey that torture was still widespread
in the country and that new instruments of torture had been found in 1992 at
police headquarters in Diyarbakir and Ankara, including one instrument for
giving electric shocks and another for hanging a person up by the arms.
Amnesty International also mentions the finding by the European Court of
Human Rights that Turkish security forces were guilty of burning houses in a
village in south-eastern Turkey.
3.4 With regard to military service, the author notes that, according to
Amnesty International, Turkey does not recognize the right of conscientious
objection and that there is no provision for alternative civilian service.
Moreover, according to Denise Graf, cited by the author as one of the most
knowledgeable people with respect to the situation of draft-evaders and
those refusing to perform their military service in Turkey, Turkish soldiers
of Kurdish origin are regularly sent to the provinces where a state of
emergency has been declared. There is a real danger that soldiers of Kurdish
origin who have to perform their military service in these regions will be
subjected to ill-treatment, especially if they themselves, or a member of
their family, have engaged in political activities.
3.5 The author believes that if he was sent back to Turkey he would be
immediately arrested at Ankara airport and would have to admit he had
applied for asylum in Switzerland for the various reasons described above.
He would then be enlisted in the army and sent to the region he came from,
where he would be subjected to ill-treatment and where he would have to
inflict abuses on his own people. During his military service he would be
tried for desertion and would have a sentence to serve at the end of his
military service; he would be subjected to further ill-treatment while
serving that sentence.
State Party's Observations on the Admissibility and Merits of the
4.1 The State party has not contested the admissibility of the communication
and made its observations on the merits of the communication in a letter
dated 20 December 1999.
4.2 The State party recalls that the Swiss Appeal Commission on Asylum
Matters carried out a detailed examination of the author's allegations
concerning the risk of persecution he would face if he ever returned to
4.3 With regard to the risks linked to his desertion, the above-mentioned
Commission noted first of all that the State party's asylum laws do not
allow a person to be granted refugee status solely on the basis of an
aversion to military service or fear of combat. It must also be proven
either that the punishment for draft evasion or desertion is totally
disproportionate on grounds that would be a determining factor in asylum
cases or that the deserter would be persecuted on the same grounds - in this
case, for example, if the Turkish Government were to be conscripting certain
groups of the population on the basis of political or similar criteria.
According to the information available to the Commission, this is not the
case in Turkey, where conscription is based solely on the conscript's
nationality and birth. The Kurdish origins of the author would therefore not
pose any risk of his being sent to the eastern front. Furthermore, the
Commission noted that the author had produced no evidence that he was being
sought by the Turkish authorities for that reason. The Commission recalls
that it was only because he was asked when he made his application for
asylum whether he had had any problems with the army that the author
mentioned his refusal to do military service, while until then he had
asserted that he had no other reasons for seeking asylum. At the time,
moreover, the author was very evasive on the questions put to him with
regard to his military service, which showed that he knew nothing of the
recruitment procedure. Given the consequences of the act of desertion, this
fact raises serious doubts about the truthfulness of the author's claims in
this respect. Lastly, the Swiss Appeal Commission on Asylum Matters noted
that, according to its information, sentences imposed on those refusing to
perform their military service in Turkey were not disproportionate.
4.4 With regard to the author's political activities, the State party
emphasizes that the same Commission found that there was insufficient
evidence to support his statements, that he had never been arrested or
charged for draft evasion and that he had already stated that he had left
his country for the sole reason that he did not wish to serve in the Turkish
4.5 On the more general subject of persecution because of his Kurdish
origins, the Swiss Appeal Commission on Asylum Matters noted that the author
lived in western Turkey (Bursa and, later, Istanbul), where these problems
were not very serious, or, at least, not more serious for the author than
they were for the rest of the Kurdish population in that region.
4.6 In the context of article 3 of the Convention, the State party recalls
that the risk of torture should be evaluated not only in the light of the
general human rights situation in the country concerned but also in the
light of factors relating to the author's own personality. The State party
therefore stresses that there must be foreseeable, real and personal risk
that the author will be tortured in the country to which he is returned.
4.7 The State party recalls that during its consideration of other
communications from Turkish citizens, the Committee had stressed that the
human rights situation in Turkey was disturbing, particularly for PKK
militants, who were frequently tortured. However, in the cases where the
Committee found there had been a violation of article 3 of the Convention,
it had previously noted that the authors were politically active within the
PKK or had been detained and tortured before their departure, or else that
they had additional evidence to support their allegations. On the other
hand, in the cases where the Committee had not found any violation, it had
concluded that no legal action had ever been taken against the author for
specific incidents or that legal action had not been taken against him but
against members of his family, or else that after leaving Turkey, the
author, or members of his family, had not been either intimidated or wanted
by the police and had stopped collaborating with the PKK.
4.8 In the case in point, the State party first draws attention to earlier
decisions of the Committee, according to which the risk of arrest is not on
its own and in itself evidence of a risk of torture. The author must also
prove that the act of desertion and his political activities give rise to a
real risk of torture if he returns.
4.9 The State party emphasizes the length of time taken by the author to
apply for asylum and considers that it is not consistent with the attitude
of someone who fears he will be tortured if he returns to his country. In
fact, it believes that the author only applied for asylum after being
arrested by the Fribourg police on 8 July 1995 in order to avoid immediate
4.10 The above considerations have also led the State party to surmise that
the author had not in fact left Turkey on 2 June 1995 as he claimed. The
author's file reveals that he obtained a visa for Switzerland on 15 June
1992 but there is no entry in his passport to confirm that he returned to
Turkey when this visa expired. In the circumstances, and in the light of
information showing that passport controls upon entering Turkish territory
are quite strict, the State party concludes that the author actually arrived
on Swiss territory on 15 June 1992, not on 2 June 1995, and lived there
illegally until he applied for asylum. The assertions that the author was
working for the PKK in 1993 therefore have even less credibility, as he was
probably living in Switzerland at the time.
4.11 The author's fear of arrest because of his political activities,
particularly since some of his comrades who took part in the same
demonstration had been arrested, is inconsistent with the author's own
statements that they used code names when taking part in the demonstrations.
It would follow that neither the author nor his comrades could in fact know
each other's names.
4.12 The State party also stresses that the author cited in his
communication three new arguments that he had never raised during his
application for asylum, even though nothing prevented him from doing so.
These arguments are that his home village was notorious for its links with
the PKK, that the police allegedly searched his parents' home in Turkey and
that two of his male and two of his female cousins were killed because of
their activities within the PKK. Aside from the fact that it is surprising
they were not raised earlier, these arguments do not prove that the risk of
torture cited by the author exists, insofar as the author left his home
village in 1990 and never talked of problems he may have had there in the
various places where he lived afterwards. Likewise, in addition to the fact
that there is no evidence to prove that members of his family were killed,
the persecution and killing of some members of his family would not entitle
the Committee, on the basis of its past practice, to conclude there is a
risk of torture to the author.
4.13 With regard to the new documents produced by the author concerning his
refusal to be drafted, the State party points out that the statement from
the mayor of Calgi is of questionable value. Aside from the fact that this
kind of statement is not within the prerogatives of a village mayor, the
document contains no concrete indication of how its author obtained the
information, which leads the State party to believe that it is a document of
convenience. Moreover, it is doubtful whether this document was translated
by the sworn translator of the Turkish consulate in Geneva when it was the
latter that actually carried out the investigations to find it. The author's
fears with regard to these investigations are inconsistent with this request
for service. As for the letter from his brother that purports to confirm
that the author received call-up papers on two occasions from the Turkish
consulate in 1997 and 1998, the State party is not persuaded by the
explanation that the brother would have kept these papers if he had foreseen
any problems for the author, since it was precisely at the time the papers
were issued that the author was appealing against the decision of the
Federal Office for Refugees. Moreover, there is an inconsistency surrounding
the dates of the call-up papers given by the author and his brother;
according to the former they date from 1995 and 1997 whereas according to
the latter they date from between 1997 and 1998.
4.14 The State party further emphasizes that recruitment into the Turkish
army is carried out solely on the basis of the nationality and birth of
conscripts and that, in the light of the system used for registering the
population in Turkey, it would be technically impossible to recruit on the
basis of membership of an ethnic group. Nor would it be logical to
systematically send Kurdish conscripts to south-eastern Turkey, since the
Turkish Government requires absolutely loyal and reliable soldiers in that
region. Lastly, the courts that are competent to deal with deserters have so
far passed very lenient sentences on those refusing the draft.
Further Comments by the Author
5.1 By letter of 25 February 2000, the author commented on the State party's
observations on the merits of the communication.
5.2 With regard to the decision of the Swiss Appeal Commission on Asylum
Matters, the author gives as an example of a soldier being sent to the east
to fight against other Kurds the case of Ali Peduk, cited by Denise Graf,
who died in service in summer 1999 from as yet unknown causes.
5.3 With regard to the convocations to the consulate, the author maintains
that it was indeed his brother who told him that he had been called up in
Turkey and who had received the two convocations, which called on his
brother to go to the Turkish consulate in Geneva to explain the author's
situation. The consulate had, unfortunately, not kept copies of the
convocations, which had been returned to Turkey after one month, in
accordance with usual practice. Moreover, the author says he did specify
"unless he was mistaken" when giving the dates of 1995 and 1997 for the
convocations. The argument put forward by the State party on this point is
5.4 The author recalls that in addition to the sentence of two to three
years' imprisonment for draft-evaders, the latter are not released from
their military service after serving the sentence; it is precisely this
injustice that the author denounces.
5.5 The author reaffirms that his political activities consisted of taking
part in demonstrations and meetings, distributing pamphlets, acting as a
host and collecting money.
5.6 With respect to article 3 of the Convention, the author is afraid not
only of the sentence for desertion and the torture he will suffer during
that sentence but also of being sent to the front and the risk of being
killed during a clash.
5.7 With regard to the time lapse between his arrival in Switzerland and his
application for asylum, the author had already provided an explanation in
his appeal to the Swiss Appeal Commission on Asylum Matters and had
explained that the delay was unrelated to the reasons for his application.
Also, the author's brother had suggested that he rest before submitting his
application because he was scared and stressed.
5.8 On the question of the date of his arrival in Switzerland, the author
did not agree that the inspections on entry into Turkey were systematic. He
also pointed out that he was 17 years old when he returned, so that there
was nothing in his appearance to attract the attention of customs officers.
5.9 The author confirms the official nature of the statement by the mayor of
Calgi and stresses that the consulate's interpreter is often asked to work
as a translator in Fribourg and knows how to be discreet while respecting
5.10 The author reiterates his belief that Kurdish draft-evaders are
regularly sent to the south-eastern front to fight against other Kurds and
on this point refers once again to the statements of Denise Graf.
5.11 Lastly, the author presents as new factors the fact that his father
died in Bursa on 11 February 2000 and that because of his fears he had not
wished to go to the funeral even though all his family would be there.
Furthermore, some new developments in the conflict between the Turkish
Government and the Kurds have convinced the author that the risks to his
person are as great as ever. On the basis of various news stories, he draws
particular attention to the abuses committed by Hezbollah against the Kurds
and to the fact that the announcement by the PKK that it is giving up the
armed struggle is mainly intended to save its leader's head. As proof that
the conflict really is continuing, the author recalls that three Kurdish
mayors have recently been arrested for their alleged links with the PKK.
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. In the case in
point, the Committee also notes that all domestic remedies have been
exhausted and that the State party has not contested the admissibility of
the communication. It therefore considers the communication to be
admissible. Since both the State party and the author have provided
observations on the merits of the communication, the Committee proceeds
immediately with the consideration of those merits.
6.2 The issue before the Committee is whether the forced return of the
author to Turkey would violate the obligation of the State party 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 or she would
be in danger of being subjected to torture.
6.3 The Committee must decide, pursuant to article 3, paragraph 1, whether
there are substantial grounds for believing that the author would be in
danger of being subjected to torture upon his return to Turkey. In reaching
this decision, 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 sufficient grounds for
determining that a particular person would be in danger of being subjected
to torture upon his return to that country. Other grounds must exist that
indicate that the individual concerned would be personally at risk.
Similarly, the absence of a consistent pattern of flagrant violations of
human rights does not mean that a person might not be subjected to torture
in his or her specific circumstances.
6.4 The Committee recalls its general comment on the implementation of
article 3, which includes the following:
"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).
6.5 In the present instance, the Committee notes that the State party draws
attention to inconsistencies and contradictions in the author's account,
casting doubt on the truthfulness of his allegations. It also takes note of
the explanations provided by counsel in this respect.
6.6 From the information submitted by the author, the Committee observes
that the events that prompted his departure from Turkey date back to 1995.
However, the arguments put forward by the State party with regard to the
actual date on which the author arrived in Switzerland have not led the
author to produce any arguments that might sway the Committee or to produce
evidence of his presence in Turkey during the disputed period.
6.7 The Committee also notes that the author has not provided any evidence
of his membership of, or his activities in, the PKK or YCK.
6.8 Lastly, the Committee believes that the arguments put forward by the
author with regard to his call-up are marred by inconsistencies, that the
author's apparent inability to produce the alleged convocations issued by
the Turkish consulate in Geneva is questionable and that the only document
produced to back up this part of the communication contains nothing that
might establish the truthfulness of his version of events.
6.9 On the basis of the above considerations, the Committee takes the view
that the information before it does not show that there are substantial
grounds for believing that the author will be personally at risk of being
subjected to torture if he is sent back to Turkey.
6.10 The Committee against Torture, acting under article 22, paragraph 7, of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, concludes that the State party's decision to return
the author to Turkey does not constitute a breach of article 3 of the
[Done in English, French, Russian and Spanish, the French text being the