against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 14 November 2000,
Having concluded its consideration of communication No. 147/1999, 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 by the author of
the communication and the State party,
Adopts the following decision:
1.1 The author of the communication is Mr. Y.S., a Turkish citizen of
Kurdish origin born on 7 June 1953 and currently residing in Switzerland,
where he applied for asylum on 18 June 1998. His application having been
turned down, he maintains that his forcible 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 21 October
1999. At the same time, the State party was equested, pursuant to rule 108,
paragraph 9, of the Committeeís rules of procedure, not to expel the author
to Turkey while his communication was under consideration by the Committee.
In a submission dated 14 December 1999, the State party informed the
Committee that steps had been
taken to ensure that the author was not returned to Turkey while his case
was pending before the Committee.
The facts as submitted by the author
2.1 The author and Ms. S., Turkish nationals of Kurdish origin, married in
1977 and then lived in their home in Elazig, a town in south-eastern Turkey.
At that time the author owned two shops selling electrical appliances, one
in Elazig and the other in Pertek, a district of the city of Tunceli where
he had grown up. In 1991, he closed the shop in Pertek, and at the end of
1994 closed the shop in Elazig because of constant harassment by the police.
2.2 Since the 1980s, the author had been an active supporter of the leftist
Kurdish party known as PSK (Socialist Party of Kurdistan), which published a
newspaper entitled Oezg.rl.k.Yolu. The author would read and sell this
paper, the name of which was often changed because it was regularly banned.
At the same time, he was an activist in the Turkish Human Rights Association
2.3 On 21 March 1993, two IHD representatives in Elazig were murdered. Their
bodies were found in the street bearing obvious signs of torture: their ears
had been cut off and their eyes put
out. The author attended their funerals.
2.4 Until 1994 the author was repeatedly harassed by the police because of
his opinions and political activities. In 1994, the authorís shop was raided
by the police, who found a copy of the above-mentioned newspaper and other
PSK publications. The author was forced to board a minibus and taken
blindfolded to an unknown place. For three days he was severely tortured in
an attempt to make him give information to the police and to become an
unofficial collaborator. Despite the torture methods used, he refused to
give any information or to become an informal collaborator. After three days
he was released. He continued to work in his shops despite constant police
harassment. At the end of 1994, he decided to close the shop in Elazig.
2.5 From then on, the author and his family had no fixed abode, living in
three different places: in Kizilkale, where the authorís parents have a
farm; in Mersin, where he owns another partment; and in Elazig, in a
dwelling owned by a friend which they rented a few months after
2.6 One night in April 1996, the police broke into the rented apartment in
Elazig where the author and his family were sleeping. The author was beaten
and taken to a place where he was physically and psychologically tortured
for two and a half days. He then agreed to work for the police, who said
that he could begin working in two weeksí time. On being released, he
returned to his home, collected his family and hid them at a friendís home
until they left for Istanbul. While his family members were with this
friend, the authorís eldest son, aged 17, was arrested by the police while
on his way to see his grandfather and was held in custody. The police
informed him that he would not be released unless his father came to fetch
him in person. On learning of this, the author and his family left for
Istanbul, where they stayed at the home of one of his brothers.
2.7 On 4 June 1996, the author, his wife and another son caught a plane and,
via Milan, arrived illegally in Switzerland on 5 June 1996. All of them were
in possession of their passports.
2.8 On the day of their arrival in Switzerland, the author and his family
applied for asylum. Their application was rejected by the Federal Office for
Refugees on 27 May 1998. The author argues in particular that, in support of
its decision refusing him refugee status, the Federal Office for Refugees
maintained that he had given contradictory information concerning his place
of residence between 1994 and 1996. The author lodged an appeal against this
decision, which was
rejected on 3 August 1999 on the grounds that his pleas were unconvincing.
In this appeal, he requested a second medical examination, which was
2.9 The author states that he arrived in Switzerland traumatized by the
torture he had undergone. He began a course of medical treatment on 9 July
1996 and he was also advised to obtain psychological treatment. On 8 April
1997, the doctors sent the Federal Office for Refugees a report stating that
the author should spend three weeks in hospital because of pains in his
spinal column. On 18 April 1997, a psychiatric report requested by the
Federal Office for Refugees found that he was suffering from post-traumatic
stress disorder. The merits of the complaint
3. The author states that if he were returned to Turkey he would be
arrested, would again be tortured and might be killed in an extrajudicial
The State partyís observations
4.1 In a note verbale dated 14 December 1999, the State party declares that
it does not contest the admissibility of the communication.
4.2 As to the merits of the communication, the State party explains that the
Swiss Appeal ommission on Asylum Matters considered that the authorís
statements concerning the period from 1994 until his second arrest in 1996
were not credible since he had no longer been in Elazig
as from 1994. Moreover, it is difficult to believe that the author would
have hidden at the home of one of his friends, T.K., since that person was
particularly vulnerable politically and his telephone was being tapped by
the Turkish security forces. In the opinion of the Federal Office for
Refugees, there was no causal link between the authorís possible arrest in
1993 and his departure from Turkey in 1996.
4.3 Furthermore, the State party emphasizes that the Swiss Appeal Commission
on Asylum Matters, unlike the Federal Office for Refugees, considers that
the allegations concerning the authorís arrest and subsequent torture are
also lacking in credibility. It was highly doubtful that the author would
have been able to continue his business activities for a period of 18 months
after having been arrested and tortured, given the effectiveness of the
repression by the Turkish
4.4 Similarly, the State party points out that the medical examination of
the author simply accepted at face value the authorís explanation of the
causes of the disturbances from which he was suffering, without questioning
them. For that reason the Swiss Appeal Commission on Asylum Matters refused
to allow a second medical examination.
4.5 In the view of the State party, the arguments presented by the author in
his communication add nothing to those presented to the Swiss authorities.
On the contrary, in his communication he claims that he was tortured not in
1993 but in 1994, whereas in the Swiss internal proceedings he repeated on
several occasions that the events did take place in 1993, in July at the
4.6 In general, the State party entirely endorses the grounds adduced by the
Swiss Appeal Commission on Asylum Matters in support of its decision to
reject the authorís application for asylum.
4.7 In the light of article 3 of the Convention, the State party points out
that, in accordance with the Committeeís jurisprudence, this provision
provides no protection to the author, who simply maintains that he is afraid
that he will be arrested on his return to his country. 4.8 The State party
questions the veracity of certain facts to which the author has referred
only in his ommunication, such as the name and address of the friend at
whose home he claims to have sought refuge. Furthermore, he gave the
Committee this information on a confidential basis and on condition that the
Swiss authorities took no action to verify its authenticity. However, the
State party could also have obtained this information in the same
4.9 The State party points out that the inquiries undertaken by the Swiss
Embassy in Ankara have shown that the author was not wanted by the police.
His name does not appear in any police records in relation to possible
criminal or political activities. Moreover, it was not until investigations
had been carried out by the Embassy that the author was obliged to admit
owned a home in Mersin, a fact which he had initially concealed from the
4.10 On the question of the medical certificates, the State party considers
that they are not sufficient to eliminate the contradictions and
implausibilities contained in the authorís statements. The Swiss Appeal
Commission was by no means convinced that the post-traumatic disturbances
from which he claimed to be suffering were the consequence of the acts of
torture which he alleges. In this context, it must be emphasized that the
person who conducted the medical examination was both the therapist and the
person who prepared the expert report.
4.11 With the exception of the alleged arrest of his eldest son in April
1996, the State party considers that the author has never demonstrated that
members of his family or members of his wifeís family have been sought or
intimidated by the Turkish authorities, let alone arrested or ortured. This
fact leads to the view that the author and his family would therefore be in
no danger of being arrested or tortured in the event of their return to
[FN1] Cf. H.D. v. Switzerland, communication No. 112/1998 (para. 6.5), and
A.L.N. v. Switzerland,communication No. 90/1997 (para. 8.5).
4.12 Similarly, the author has never demonstrated that he has engaged in
activities which might have been beneficial to PSK. He was not a member of
this party but merely a sympathizer and, even in this capacity, he
acknowledged that he had never distributed brochures for the party.
4.13 Lastly, the State party considers that the authorís explanations
concerning the manner of his departure from Turkey with his family are open
to question. The Swiss Appeal Commission on Asylum Matters considered it
unlikely that a person wanted by the police would have been able to leave
Turkey from Istanbul airport without let or hindrance. In view of the
extremely strict security checks carried out at this airport, it is likely
that a false or forged passport would have been detected. Moreover, the
State party considers implausible the contention that the passports were in
the possession of a third party.
4.14 The State party accordingly considers that the authorís statements do
not permit the conclusion that there are substantial grounds for believing,
in accordance with article 3, paragraph 1, of the Convention, that the
author would be in danger of being subjected to torture
if the decision to return him to Turkey were carried out.
The authorís comments
5.1 In a communication dated 14 July 2000 the author commented on the State
5.2 Concerning the date of the first arrest, he states that his counsel
admits having himself made a mistake over the dates, probably because the
author, too, confused them at the time of the second interrogation.
Nevertheless, while making it clear that this arrest occurred in 1993, the
author points out that it was not questioned by the Swiss authorities.
5.3 As to his work within the party, the author wishes to make it clear
that, at his second interview, he stated that he shared the partyís ideas
and supported the party, but that he did not play an active part in it. In
addition, he makes it clear that he played a limited role in distributing
the party newspaper. Lastly, he recalls that he was arrested in 1993 because
party newspapers had been found in his apartment and he had been accused of
having distributed pamphlets.
5.4 The author recalls that, in his appeal to the Swiss Appeal Commission on
Asylum Matters, he was prepared to give his friendís name and address on
condition that that information was not used by the Swiss Embassy in order
to carry out inquiries into their relationship.
5.5 Concerning the inquiries carried out by the Swiss authorities in Turkey,
the author considers that it is impossible for a Turkish security
organization to give such information to Switzerland. As to the apartment in
Mersin, the author did not consider that information to be sufficiently
important. Furthermore, it was not true that they had moved completely from
Elazig to go and live in Mersin, as the Swiss authorities maintained.
Consequently, it could not be said that it was impossible for the author to
be arrested in Elazig.
5.6 As to the veracity of the medical examination conducted by Dr. M., if
the Federal Office for Refugees had not contested the veracity of the
torture in 1993, the author wonders why the possibility that he was still
traumatized by that torture should be ruled out, when it was known that he
had been forced to remain standing in freezing water and that his fingers
had been squeezed with pincers. Furthermore, Dr. M.ís description of the
report as an ďexpert reportĒ was motivated by the request made by the
Federal Office for Refugees. However, the State party had provided no
information as to the form that the report should take. Similarly, the
psychiatric diagnosis of post-traumatic stress disorder does not depend on
measurable objective signs. In any judicial procedure, if the medical report
is considered to be unsatisfactory, a second report
must be requested.
5.7 In the opinion of the State party, the authorís brothers have not been
persecuted in Istanbul and Izmir because of him. Moreover, the State party
considers that the author and his family could return to Turkey without any
problem. However, the arrest of the authorís eldest son is not contested. In
this connection, the author maintains that his brothers and sisters live in
Istanbul and that he had little contact with them; furthermore, they were
too far from Elazig to be able to give any information about him. As to the
authorís eldest son, he has not lived in Elazig since the time the author
arrived in Switzerland. The year the author left, the son moved to Istanbul
to live with his family.
5.8 As to the State partyís argument that the author has ceased to work for
PSK since his arrival in Switzerland, the author states that PSK is very
active in Switzerland, notably in Lausanne and Basel, but not in Bern where
he lives. Nevertheless, the author regularly attends its meetings.
5.9 Concerning the State partyís doubts that the author had lived with a
friend who worked for PKK, the author maintains that his friend had
completely concealed his activities from the security forces. The security
forces had, however, visited Mr. K. in order to prevent him from
participating in certain activities. Mr. K. was quite old and died in 1999.
Issues and proceedings before the Committee
6.1 Before considering any of the allegations in a communication, the
Committee against Torture must decide whether or not the communication is
admissible under article 22 of the Convention. It 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. It 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. As both the State party and the author
have provided observations on the merits of the communication, the Committee
proceeds with the consideration of those merits.
6.2 The issue before the Committee is whether the return of the author to
Turkey would violate the obligation of the State party under article 3 of
the Convention not to expel or 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 article 3, paragraph 1, whether
there are substantial grounds for believing that the author would be in
danger of being subjected to torture if he was returned 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 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 or her return to the country. There must be other grounds
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 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 reads: ďBearing 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 rounds that go beyond mere theory or suspicion. However, the
risk does not have to meet the test of being highly probableĒ (A/53/44,
annex IX, para. 6).
6.5 The Committee notes that the medical examination undergone by the author
indicated the presence of post-traumatic stress.
6.6 However, on the basis of information submitted by the author, the
Committee notes that the events which prompted his departure from Turkey
date back to 1993 and appear to be linked in particular to his relations
with PSK. The purpose of the arrests and torture which he says he underwent
in 1993 and 1996 seemed to be to elicit information or to induce him to
collaborate with the security forces. On the other hand, there is no
indication that since his departure from Turkey in 1996 the members of his
family, and notably his son, have been sought or intimidated by the Turkish
authorities. Moreover, the Committee takes note of the information furnished
by the Swiss Embassy in Ankara, which establishes that the Turkish police
have no file on the author.
6.7 In these circumstances, the Committee considers that the author has not
furnished sufficient evidence to justify his fear of arrest and torture on
6.8 The Committee against Torture, acting under article 22, paragraph 7, of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, considers that
the decision of the State party to return the author to Turkey does not
constitute a breach of article 3 of the Convention.