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. 107/1998, 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. K.M., a Turkish citizen of
Kurdish ethnic origin, born in 1972, currently living in Switzerland where
he has applied for asylum. His application, however, has been rejected and
he is at risk of expulsion. He alleges that his forced return to Turkey
would constitute a violation by Switzerland of article 3 of the Convention.
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 11 March 1998.
At the same time the State party was requested, pursuant to rule 108,
paragraph 9, of the Committee's rules of procedure, not to expel the author
to Turkey while his communication was under consideration by the Committee.
In a submission of 15 April 1998 the State party informed the Committee that
measures had been taken to ensure that the author would not be returned to
Turkey while his case was pending before the Committee.
The Facts as Submitted by the Author
2.1 The author comes from the south-eastern part of Turkey. He states that,
although sympathetic towards the cause of the Kurdish Workers' Party (PKK)
he was not involved in political activities. He performed his military
service with the Turkish army in 1992/93. He ran a shoe shop together with
his father in the village of Gaziantep. Although not politically active, he
was arrested by the police on two occasions in August and September 1994, on
suspicion of helping the PKK, and was kept in detention for a brief period.
During one of his detentions he was severely beaten, resulting in the loss
of one of his teeth and damage to others. On both occasions he was released
2.2 In early 1995 a member of the PKK whom they did not know contacted the
author and his father and asked them to supply the organization with a large
quantity of shoes. Being sympathetic towards the organization, the author
and his father accepted the deal and shoes were supplied on a weekly basis.
According to the author, his cousin, who was working actively for the PKK
and came sometimes to collect the weekly ration of shoes, was arrested by
the Turkish police in March 1995 while in possession of the shoes. Under
torture he informed the police that the author was making shoes for the PKK.
The police then looked for the author at his domicile, but the author
managed to escape and hide. His father was arrested in order to make the
author show up. The author decided to leave the country and arranged his
departure with the help of smugglers. He later learned that his cousin had
been killed while trying to escape from prison.
2.3 The author arrived in Switzerland on 20 April 1995 and immediately
applied for asylum. The Federal Office for Refugees (ODR) rejected his
application on 14 November 1996. On 12 January 1998 the Appeal Commission
for Asylum Matters (CRA) turned down the author's appeal.
2.4 The author complains that his interviews with the Swiss asylum
authorities were conducted without the assistance of a lawyer and disagrees
with the arguments used by those authorities to conclude that he lacked
credibility and reject his application. The Swiss authorities indicated that
there were a number of contradictions in the information supplied by the
author during his three interviews with asylum officers. Those
contradictions concerned, inter alia, the author's profession, the request
he had received to make shoes for the PKK and the arrests to which he had
been subjected in 1994. The author provides the Committee with detailed
explanations designed to demonstrate that there are no such contradictions
and that he has told the truth about the reasons that motivated his
departure from the country.
2.5 The author provided the Committee with a document issued by the
prosecutor of Gaziantep, dated 28 March 1995, indicating that he was wanted
by the police. The document was considered by the Swiss authorities as a
fake. The author disagrees with that conclusion and complains that, contrary
to the usual practice, the Swiss authorities never asked the Swiss Embassy
in Ankara to verify the authenticity of the document.
3.1 The author claims that his forcible return to Turkey would constitute a
violation of Switzerland's obligations under the Convention, since in view
of the reasons that motivated his departure from Turkey, there are
substantial grounds to believe that he would risk imprisonment, torture and
even extrajudicial killing upon return.
The State Party's Observations on the Admissibility and Merits of the
4.1 The State party did not contest the admissibility of the communication
and made observations on its merits in a letter dated 13 August 1998.
4.2 The State party informs the Committee of the discrepancies which the
authorities have found to exist during their interviews with the author. The
State party notes, for example, that his account of the order for mountain
shoes for PKK soldiers is strewn with contradictions and inconsistencies.
These relate to an essential point of the communication, namely, the grounds
for the persecution to which the author was allegedly subjected by the
authorities of his country. The State party also considers that the
statements by the author regarding the circumstances in which he allegedly
received the order for shoes cannot be reconciled with the situation with
which members of the PKK are faced. It does seem surprising, at the very
least, that a member of a terrorist movement, at war with the current
regime, which has mobilized the main forces of the country against it, would
arrive one day at the home of strangers and ask them to support the armed
struggle, in broad daylight and without taking the slightest precaution. To
accept the author's version would be to ignore that the PKK must have
instituted a whole system of security measures, such as strategies for
identifying its members, in order to safeguard their lives so as to continue
the armed struggle. In this regard, it is interesting to note that, by the
author's own account, it is well known that the secret police and its
informers are present in all areas of civil society. A genuine PKK member
could not be ignorant of this fact and would not have rashly exposed himself
to danger as the author claims.
4.3 The State party finds it astonishing that an individual suspected by the
police in August 1994 of having given support to the PKK should
spontaneously accept, at the beginning of 1995, a stranger's suggestion that
he should produce shoes for the movement, without for a second imagining
that the security services might have been trying in this way to confirm
their suspicions about him.
4.4 The State party also contests the reality of the proceedings instituted
by the police against the author. The author stated that his father had also
made shoes for the PKK; however, the father was never subjected to any
criminal prosecution for participation in terrorist activity, but was only
arrested and interrogated with regard to his son. The leniency shown by the
Turkish authorities to the author's father is completely inexplicable. Even
if the cousin did not denounce the author's father, the fact remains that
the father also made shoes for the PKK or at least allowed them to be made
in his workshop. Thus, the father's behaviour would doubtless have justified
the opening of a criminal investigation against him since he had, as the
owner of the workshop, given his support to a terrorist movement. In fact,
the father has never been bothered on these grounds by the national
4.5 Moreover, the author stated that his cousin had been sentenced to five
years' imprisonment and that he had informed the police that the author had
made the shoes. However, the author has never produced an extract from the
judgement in question, which, if it had really existed, could have proved
that he had been his cousin's accomplice.
4.6 With regard to the future persecutions to which the author would
allegedly risk being exposed on returning to his country, the State party
informs the Committee that, following the request of the ODR dated 3 April
1998, the Swiss embassy in Ankara made inquiries regarding the situation of
the author in Turkey. By letter of 21 April 1998 the embassy confirmed that
the police had no political file on the author and no record of his having
committed a criminal offence, that he was not wanted by the police or the
armed special police at the national or local level and was not prohibited
from holding a passport.
4.7 On the basis of this recent information, the author could surely no
longer seriously maintain that the letter from the Office of the Public
Prosecutor in Gazantiep was authentic. The Swiss authorities were, moreover,
convinced that the document was a forgery. Firstly, it was an internal
official letter which would normally not be intended, at least in this form,
to be handed over to the wanted person. Secondly, the quality of the paper
used and the absence of any of the official indications that generally
appear on this type of document according to the specialized service of the
ODR, led to the conclusion that the author had had the document forged by
friends or relatives.
4.8. The author also made contradictory statements regarding the dates and
duration of his alleged arrests in 1994. He firstly stated that the two
arrests had taken place in August 1994, and subsequently in September and
October 1994; that they had lasted, respectively, three days and one day,
and then only one day. It is therefore quite likely that the dental damage
suffered by the author was caused by some other incident than that indicated
by him, for example an accident at work. The dental certificate in no way
confirms the statements by the author with regard to the cause of the
damage. Moreover, it can be seen from the communication that the author did
not leave Turkey because of these events, which leads one to suppose that
there is no causal link between them and the grounds for the future
persecution which the author claims he will suffer if he returns to his
5.1 Counsel reiterates the explanations he had already provided regarding
the contradictions in the author's statements referred to by the State
party. As for the document from the prosecutor of Gazantiep, the State party
seems to suggest that the author asked his relatives to produce a false
document. The author asked his father to send him evidence, not to forge a
document. He does not know how his father obtained the document but there is
nothing to indicate that the document is a forgery. In a telephone
conversation on 23 December 1996, the father told counsel that he had had to
go to the police station several times in order to obtain the document.
5.2 As for the argument that the author was unlikely to place himself at
risk again, counsel claims that many Kurds in Turkey are suspected by the
police of collaborating with the PKK, in spite of which they continue to
work for the organization.
5.3 As for the argument that the author's father should have been
prosecuted, counsel says that the father is a sick old man who does not
belong to the sector of the population that normally joins the guerrilla
movement, i.e. the younger generation. The author, however, clearly informed
the Swiss authorities that his father had been held in police custody for
one week, during which time he was questioned two or three times about his
5.4 Counsel considers that it is not realistic to ask the author to provide
a copy of his cousin's criminal record. The author left Turkey shortly after
his cousin's arrest and does not know whether his cousin had a lawyer. Only
a lawyer would have been in a position to provide such documents, since his
cousin's wife, children and mother left the country and the author has no
contact with them. Counsel says that the Swiss authorities should have been
able to obtain that kind of document.
5.5 Counsel adds that the PKK member who contacted him and his father and
asked them to make the shoes knew through the author's cousin that the
author and his father were PKK sympathizers, so that he did not run the kind
of risk referred to by the State party.
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 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 that the communication is admissible. Since both the State party
and the author's counsel have provided observations on the merits of the
communication, the Committee proceeds with the consideration of those
6.2 The issue before the Committee is whether the forced return of the
author is 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.
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 subjected 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. 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 indicating 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 recalls 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).
6.5 In the present case the Committee notes that the State party draws
attention to a number of inconsistencies and contradictions in the author's
account, casting doubt on the truthfulness of his allegations. It also notes
the explanations provided by counsel in that respect. The Committee
considers, however, that those inconsistencies and contradictions are not of
such nature as to be relevant for the assessment of the risk under which the
author might be if he is returned to Turkey.
6.6 From the information submitted by the author the Committee observers
that the events that prompted his departure from Turkey date back to 1995.
The author provided the Swiss authorities with a document allegedly issued
by the Office of the Public Prosecutor of Gazantiep, soon after his
departure, as evidence of proceedings initiated against him for his links
with the PKK. The Swiss authorities considered that the document in question
was a forgery. In the Committee's opinion the explanations provided by the
author to demonstrate that the said document is authentic are not
convincing. Furthermore, the Committee notes the information provided by the
Swiss embassy in Ankara according to which the police has not established a
dossier on the author and he is not under an order of arrest. Accordingly,
the author has failed to demonstrate that he is under risk of being arrested
upon his return. The Committee further notes the author's allegations that
his father was arrested by the police and questioned about his whereabouts.
However, the arrest in question took place in 1995. There is nothing to
suggest that the author or members of his family have been sought or
intimidated by the Turkish authorities since then. There is nothing to
suggest either that the author has collaborated with the PKK in any way
since leaving Turkey in 1995.
6.7 The Committee notes with concern the numerous reports concerning the use
of torture in Turkey, but 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. In
the light of the foregoing, the Committee deems that such a risk has not
6.8 On the basis of the above considerations, the Committee is of the
opinion that the information before it does not show substantial grounds for
believing that the author runs a personal risk of being tortured if he is
sent back to Turkey.
7. 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 decision of the State party 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