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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 12 May 2004,
Having considered complaint No. 214/2002, 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 information made available to it by the
complainant and the State party,
Adopts the following decision:
1.1 The complainant is M. A. K., a Turkish national of Kurdish origin, born
in 1968, currently residing in Germany and awaiting expulsion to Turkey. He
claims that his forcible return to Turkey would constitute a violation by
the Federal Republic of Germany of article 3 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He is
represented by counsel.
1.2 On 11 September 2002, the Committee forwarded the complaint to the State
party for comments and requested, under Rule 108, paragraph 1, of the
Committee's rules of procedure, not to extradite the complainant to Turkey
while his complaint was under consideration by the Committee. The Committee
indicated, however, that this request could be reviewed in the light of
observations provided by the State party on the admissibility or on the
merits. The State party acceded to this request.
1.3 On 11 November 2002, the State party submitted its observations on the
admissibility of the complaint together with a motion asking the Committee
to withdraw its request for interim measures, pursuant to Rule 108,
paragraph 7, of the Committees rules of procedure. In his comments, dated 23
December 2002, on the State party's observations on admissibility, counsel
asked the Committee to maintain its request for interim measures until a
final decision on the complaint has been taken. On 4 April 2002, the
Committee, through its Rapporteur on new communications and interim
measures, decided not to withdraw its request for interim measures.
The Facts As Submitted by the Complainant
2.1 The complainant arrived in Germany in December 1990 and claimed
political asylum on 21 January 1991, stating that he had been arrested for a
week in 1989 and tortured by the police in Mazgirt because of his objection
to the conduct of superiors during military service. As a PKK sympathiser,
he was being persecuted and his life was in danger in Turkey. On 20 August
1991, the Federal Agency for the Recognition of Foreign Refugees (Bundesamt
f�r die Anerkennung ausl�ndischer Fl�chtlinge) rejected the complainant's
application on the basis of inconsistencies in his counts.
2.2 The complainant appealed the decision of the Federal Agency before the
Wiesbaden Administrative Court which dismissed the appeal on 7 September
1999. On 17 April 2001, the Higher Administrative Court of Hessen refused
leave to appeal from that judgment.
2.3 On 7 December 2001, the City of Hanau issued an expulsion order against
the complainant, together with a notification of imminent deportation. The
expulsion was based on the fact that the complainant had been sentenced by
penal order, dated 16 January 1995, of the District Court of Gro�-Gerau to a
suspended prison term of four months for participation in a highway blockade
organized by PKK sympathisers in March 1994.
2.4 On 17 January 2001, the complainant applied to the Federal Agency to
reopen proceedings in his case, arguing that he had been trained by the PKK
in a camp in the Netherlands in 1994, with a view to joining the PKK's armed
forces in Southeast Turkey, a duty from which he had been exempted at his
subsequent request. He further claimed that the Turkish authorities knew
about his PKK activities and, in particular, his participation in the
highway blockade, on the basis of his conviction for joint coercion of road
traffic.
2.5 By decision of 6 February 2002, the Federal Agency rejected the
application to reopen asylum proceedings, stating that the complainant could
have raised these fresh arguments in the initial proceedings, and that his
submissions lacked credibility. On 26 February 2002, the complainant
appealed this decision before the Frankfurt Administrative Court, where
proceedings were still pending in this regard at the time of the initial
submission of the complaint.
2.6 The complainant's application for provisional court relief against his
deportation to Turkey was rejected by the Frankfurt Administrative Court on
21 March 2002, essentially based on grounds identical to those of the
Federal Agency.
2.7 On 16 April 2002, an informational hearing of the complainant was held
at the Federal Agency, during which the complainant stated that, prior to
his training at the Dutch PKK camp, he had been introduced to the public of
the Kurdish Halim-Dener-Festival, celebrated in September 1994 in the
Netherlands, as part of a group of 25 "guerilla candidates". He had not
raised the issue during initial asylum proceedings since he feared
punishment for PKK membership (the PKK is illegal under German law).
2.8 The complainant's application to reconsider its decision denying
provisional court relief was rejected by the Frankfurt Administrative Court
on 18 June 2002. The court reiterated that the late submission, as well as
various details in the description of his alleged PKK activities, undermined
the complainant's credibility. Thus, it was considered questionable whether
the PKK would publicly present its guerilla candidates, knowing that the
Turkish secret service observed events such as the Halim-Dener-Festival.
Moreover, following political and ideological training in Europe, PKK
members were generally obliged to undergo immediate military training in
Southeast Turkey.
2.9 On 22 July 2002, the complainant lodged a constitutional complaint with
the Federal Constitutional Court against the decisions of the Frankfurt
Administrative Court of 21 March and 18 June 2002, claiming violations of
his constitutionally protected rights to life and physical integrity,
equality before the law as well as his right to be heard before the courts.
In addition, he filed an urgent application for an interim decision granting
protection from deportation for the duration of the proceedings before the
Federal Constitutional Court. By decision of 30 August 2002 of a panel of
three judges, the Federal Constitutional Court dismissed the complaint as
well as the urgent application, on the basis that "the complainant solely
objects to the assessment of facts and evidence by the lower courts without
specifying any violation of his basic rights or rights equivalent to basic
rights".
The Complaint
3.1 The complainant claims that substantial grounds exist for believing that
he would be at a personal risk of being subjected to torture in Turkey, and
that Germany would, therefore, be violating article 3 of the Convention if
he were returned to Turkey. In support of his claim, he submits that the
Committee has found the practice of torture to be systematic in Turkey.
3.2 The complainant argues that the Federal Agency and the German courts
overemphasized the inconsistencies in his statements during the initial
asylum proceedings, which were not in substance related to his subsequent
claim to reopen proceedings on the basis of new information. He admits his
failure to mention his PKK activities during initial proceedings. However,
he could have reasonably expected the Turkish authorities' knowledge of his
participation in the highway blockade to establish sufficient grounds for
recognition as a refugee. His participation in the blockade could easily be
inferred from his conviction of joint coercion in road traffic, since the
judicial records exchanged between German and Turkish authorities indicate
the date of a criminal offense. In the absence of witnesses of his
participation in the PKK training course, which was to be kept secret, he
claims the benefit of doubt for himself. He refers to the Committee's
General Comment No. 1, which provides that, for purposes of article 3 of the
Convention, the risk of torture "does not have to meet the test of being
highly probable".
3.3 Moreover, the complainant refers to the written testimony by a Mr. F.
S., dated 6 July 2002, in which the witness declared that he had traveled to
the Kurdish festival in the Netherlands in 1994 together with the
complainant, who had publicly declared to participate in the PKK.
3.4 The complainant explains the apparent contradiction between the PKK's
policy of secrecy and the public presentation of 25 guerilla candidates in
front of 60.000 to 80.000 people at the Halim-Dener-Festival with the
campaign, initiated by Abdullah �calan in March 1994, of demonstrating the
Organization's presence and capacity to enforce its policies throughout
Europe. His exemption from the duty to undergo military PKK training was
only temporary, pending a final decision to be taken in May 1995. In any
event, inconsistencies in the official PKK policy could not be raised
against him.
3.5 As regards the burden of proof within national proceedings, the
complainant submits that, pursuant to section 86 of the Code of
Administrative Court Procedure, the administrative courts must investigate
the facts of a case ex officio. He was therefore under no procedural
obligation to prove his PKK membership. By stating that he took part in a
PKK training course from September 1994 to January 1995, the complainant
considers to have complied with his duty to cooperate with the courts.
3.6 As to the Turkish authorities' knowledge of his PKK membership, the
complainant contends that there can be no doubt that the Turkish secret
service observed the events taking place at the Halim-Dener-Festival in
1994. Moreover, he claims to have seen one of his training officers at the
Maastricht camp, called "Yilmaz", on Turkish television after his arrest by
Turkish police. "Yilmaz" reportedly agreed to cooperate with Turkish
authorities, thereby placing the participants of the training camp at risk
of having their identities revealed. The complainant further claims that one
of his neighbour villagers told him that another participant of the training
camp, called "Cektar", to whom he had close contact during the course, was
captured by the Turkish army. It can be reasonably assumed, according to the
complainant, that "Cektar" was handed over to the police for interrogation
and tortured in order to extract information on PKK members from him.
3.7 The complainant concludes that, upon return to Turkey, he would be
seized by Turkish airport police, handed over to specific police authorities
for interrogation, and gravely tortured by those authorities. From previous
views of the Committee he infers that the Committee found instances of
torture by Turkish police likely to happen when the authorities were
informed about a suspect's collaboration with the PKK.
3.8 The complainant submits that even if he had committed a criminal offense
under German law by adhering to the PKK, this could not absolve the State
party from its obligations under article 3 of the Convention.
3.9 The complainant claims to have exhausted all available domestic
remedies. His complaint is not being examined under another procedure of
international investigation or settlement.
The State Party's Observations on the Admissibility of the Complaint
4.1 On 11 November 2002, the State party submitted its observations on the
admissibility of the complaint, asking the Committee to declare it
inadmissible for failure to exhaust domestic remedies, pursuant to article
22, paragraph 5, of the Convention.
4.2 The State party argues that domestic remedies which need to be exhausted
include the remedy of a constitutional complaint, as held by the European
Court of Human Rights in several cases concerning Germany. [FN1] Although
the complainant lodged a constitutional complaint on 22 July 2002, he failed
to exhaust domestic remedies, since this complaint was not sufficiently
substantiated to be accepted for adjudication. In particular, the
complainant failed to state why the challenged decisions infringed his
constitutionally protected rights. It follows from the ratio decidendi of
the decision of the Federal Constitutional Court, dated 30 August 2002, that
he "solely object[ed] to the assessment of facts and evidence by the lower
courts".
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[FN1] Djilali v. Germany, Application No. 48437/99; Thieme v. Germany,
Application No. 38365/97; Teuschler v. Germany, Application No. 47636/99;
Tamel Adel Allaoui et al. v. Germany, Application No. 44911/98.
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4.3 The State party submits that domestic remedies cannot be exhausted by
means of an inadmissible complaint which patently fails to comply with the
admissibility criteria under national procedural law. [FN2] In the present
case, the State party does not see any circumstances which would justify an
exemption from the requirement to exhaust domestic remedies, given that the
constitutional complaint combined with the application for a provisional
order, pending the final decision of the Federal Constitutional Court,
provided the complainant with an effective remedy.
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[FN2] See Section 92 of the Federal Constitutional Court Act.
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Complainant's Comments on the State Party's Observations on Admissibility
5.1 In his response dated 9 December 2002, the complainant challenges the
State party's interpretation of the Constitutional Court's decision of 30
August 2002. He argues that the Court explicitly or implicitly ruled his
constitutional complaint inadmissible, arguing that it did not distinguish
between aspects of admissibility and merits. However, as the complaint
satisfied the admissibility criteria of Section 93 of the Federal
Constitutional Court Act, indicating the basic rights claimed to be
infringed as well as the manner in which the lower courts' decisions
violated these rights, it follows that the Federal Constitutional Court did
not reject it as inadmissible "but with reference to the merits of the
case".
5.2 The complainant submits that the constitutional complaint is not an
additional appeal but constitutes an extraordinary remedy, allowing the
Constitutional Court to determine whether basic rights have been infringed
by the lower courts, when these fail to comply with their duty to ensure the
enjoyment of such basic rights. However, the questions whether the
requirement to exhaust all available domestic remedies includes recourse to
this specific remedy, and whether this requirement is not met if a
constitutional complaint is rejected as inadmissible, is immaterial in the
complainant's opinion, since his constitutional complaint was not declared
inadmissible by the Federal Constitutional Court in the first place.
5.3 The complainant argues that compliance with specific particularities of
the German Constitution is not a prerequisite to lodge a complaint under a
universal treaty-based procedure, such as the individual complaint procedure
under article 22 of the Convention.
5.4 Lastly, the complainant submits that the domestic remedies rule must be
applied with a certain degree of flexibility, and that only effective
remedies must be exhausted. In the absence of a suspensive effect, the
constitutional complaint cannot be considered an effective remedy in cases
of imminent deportation.
Additional Observations by the State Party on Admissibility
6.1 On 10 March 2003, the State party submitted its additional observations
on the admissibility of the complaint. While conceding that the Federal
Constitutional Court did not explicitly state whether the constitutional
complaint was inadmissible or ill-founded, the State party reiterates that
the wording of the operative part of the Federal Constitutional Court's
decision of 30 August 2002 allowed the inference that the complainant's
constitutional complaint was unsubstantiated and therefore inadmissible.
Hence, the complainant failed to comply with the procedural requirements for
lodging a constitutional complaint.
6.2 The State party objects to the complainant's argument that a
constitutional complaint has no suspensive effect, arguing that such effect
can be substituted by means of an urgent application for interim relief,
under Section 32 of the Federal Constitutional Court Act.
Decision on Admissibility
7.1 At its thirtieth session, the Committee considered the question of the
admissibility of the complaint and ascertained that the same matter had not
been, and was not being, examined under another procedure of international
investigation or settlement. Insofar as the State party argued that the
complainant had failed to exhaust domestic remedies, since his
constitutional complaint did not meet the procedural requirements as to the
substantiation of the claims, the Committee considered that, as an
international instance which supervises States parties' compliance with
their obligations under the Convention, it is not in a position to pronounce
itself on the specific procedural requirements governing the submission of a
constitutional complaint to the Federal Constitutional Court, unless such a
complaint is manifestly incompatible with the requirement to exhaust all
available domestic remedies, laid down in article 22, paragraph 5 (b), of
the Convention.
7.2 The Committee noted that the complainant had lodged a constitutional
complaint with the Federal Constitutional Court on 22 July 2002, which had
been dismissed by the Court by formal decision dated 30 August 2002. In the
absence of a manifest failure to comply with the requirement in article 22,
paragraph 5(b), of the Convention, the Committee was satisfied that, in the
light of the circumstances of the case and in conformity with general
principles of international law, the complainant had exhausted all available
domestic remedies.
7.3 Accordingly, the Committee decided on 30 April 2003, that the complaint
was admissible.
State Party's Observations on the Merits
8.1 By note verbale of 24 February 2003, the State party submitted its
observations on the merits of the complaint, arguing that the complainant
had failed to substantiate a personal risk of torture in the event of his
deportation to Turkey.
8.2 By reference to the Committee's General Comment 1 on the interpretation
of article 3 of the Convention, the State party stresses that the burden is
on the complainant to present an arguable case for establishing a personal
and present risk of torture. It considers the complainant's Kurdish origin
or the fact that he sympathizes with the PKK insufficient for that purpose.
8.3 The State party submits that the different versions about the severity
of the torture allegedly suffered by the complaint after his arrest in
Turkey raise doubts about his credibility. While he had first stated, before
the Federal Agency, that he had been insulted and thrown into dirty water,
he later, before the Wiesbaden Administrative Court, supplemented his
allegations to the effect that he had been lifted up with his hands tied
behind his back and a stick placed under his arms.
8.4 For the State party, the author failed to prove his PKK membership, or
any remarkable political activities, during exile. In particular, the letter
by Mr. F. S. merely stated that the complainant had participated in cultural
and political activities in Germany, without specifying any of them.
Moreover, the State party argues that the mere claim to be a PKK member is
not as such sufficient to substantiate a personal danger of being tortured,
in the absence of a prominent role of the complainant within that
Organization. Out of the more than 100.000 persons proclaiming themselves
PKK members during the "self-incriminating campaign" in 2001, not a single
case of subsequent persecution by Turkish authorities was reported.
8.5 While conceding that participation in PKK training for a leadership role
might subject a party member to personal danger upon return to Turkey, the
State party denies that the complainant ever participated in such training;
he did not raise this claim during his hearing before the Wiesbaden
Administrative Court in 1999. It considers the complainant's explanation
that he wanted to keep this participation confidential, as required by the
PKK, and because PKK membership was punishable under German law,
implausible, because: a) the contradiction between the alleged
confidentiality of his training and the fact that the complainant had
allegedly been introduced to a wide Kurdish community at the
Halim-Dener-Festival; b) the unlikelihood that the complainant would
consider an imminent danger of torture the "lesser of two evils" compared to
a conviction for PKK membership in Germany; c) the fact that, despite the
dismissal of his asylum claim by the Wiesbaden Administrative Court on 7
September 1999, he did not reveal his participation in PKK training on
appeal to the Higher Administrative Court of Hessen; and d) the obvious need
to supplement his claims for purposes of a new asylum application after the
expulsion order of 7 December 2001 had become final and binding.
8.6 The State party submits that, even assuming that the complainant had
been introduced as a "guerilla candidate" at the festival in 1994, his
subsequent failure to continue the training, let alone to fight in Southeast
Turkey, prevented him from occupying a prominent position within PKK.
8.7 While not excluding the possibility that the complainant's conviction of
"joint coercion in road traffic" was communicated to the Turkish authorities
under the international exchange of judicial records, the State party
submits that the place of the offense could only be deduced indirectly from
the information concerning the competent court. Even if his participation in
the highway blockade could be revealed on the basis of this information,
such low-profile activity was unlikely to trigger any action on the part of
the Turkish authorities.
8.8 As to the burden of proof in national proceedings, the State party
argues that the German courts' obligation to investigate the facts of a case
only relates to verifiable facts. The Federal Agency and courts complied
with this obligation by pointing out inconsistencies in the complainant's
description of events and by providing him with opportunities to clarify
these inconsistencies in two hearings before the Federal Agency and one
before the Administrative Court of Wiesbaden.
Comments by the Complainant
9.1 On 27 March and 10 May 2003, the complainant commented on the State
party's merits submission, arguing that the issue before the Committee is
not whether his allegations during the first set of asylum proceedings were
credible, but whether knowledge by the Turkish authorities of his
participation in the PKK training course would subject him to a personal and
foreseeable risk of torture upon return to Turkey.
9.2 The complainant justifies inconsistencies between his initial and later
submissions to the German authorities with the preliminary character, under
the Asylum Procedure Law of 1982 (replaced in 1992), of his first statement
before the immigration police. This, according to the police translator, had
to be confined to one handwritten page, outlining the reasons for his asylum
application. In his agent's letter of 7 February 1991, as well as his
interview of 5 May 1991, the complainant explained in detail that, after his
military service, he became a PKK sympathizer and was arrested together with
other PKK activists during a demonstration. The letter also states that the
police tortured him and the others during arrest to extract information on
other PKK sympathizers.
9.3 The complainant recalls that complete accuracy can seldom be expected
from victims of torture; his statements in the initial set of asylum
proceedings should not be used to undermine his credibility with regard to
his later claims.
9.4 With regard to the second set of asylum proceedings, the complainant
submits that, in its decision of 18 June 2002, the Frankfurt Administrative
Court itself recognized his dilemma, as he could not reveal his PKK
membership without facing criminal charges in Germany. His expectation to be
recognized as a refugee on the basis of his participation in the highway
blockade rather than his PKK membership was therefore plausible and in
conformity with the predominant jurisprudence at the time of his hearing
before the Wiesbaden Administrative Court, under which refugee status was
generally granted to Kurdish claimants who participated in PKK-related
highway blockades.
9.5 Regarding his failure to continue PKK training after completing the
course in the Netherlands, the complainant refers to a letter dated 16
February 2003 from the International Association for Human Rights of the
Kurds (IMK), which confirms that the PKK had conducted training activities
in the Netherlands from 1989 on, and that participants of training courses
were often ordered to wait at their domicile for further instructions, or
even exempted from the duty to undergo military training in Turkey.
9.6 While conceding that the Committee normally requires evidence of PKK
membership, the complainant argues that the standard of proof must be
applied reasonably, taking into consideration exceptional circumstances. He
reiterates that the risk of torture that must be established by a
complainant must not be one of high probability but rank somewhere between
possibility and certainty. He claims that the written statement and a
supplementary affidavit of 4 April 2003 by F. S., describing the
complainant's introduction as a guerilla candidate at the
Halim-Dener-Festival, corroborate his allegations. He concludes that his
statements are sufficiently reliable to shift the burden of proof to the
State party.
9.7 The complainant cites a number of German court decisions which are said
to acknowledge the risk that PKK suspects run of being subjected to torture
after deportation to Turkey. This risk was not mitigated by the fact that he
failed to take part in the PKK's armed combat. Rather, the Turkish police
would try, including through torture, to extract information from him
concerning other participants of the training course, PKK officials in
Germany and other European countries.
9.8 The complainant reiterates that the Turkish authorities know of his
participation in PKK training, as he was a member of a relatively small
group of guerilla candidates. He recalls that the Committee has repeatedly
held that membership in an oppositional movement can draw the attention of
the country of origin to a complainant, placing him at a personal risk of
torture.
9.9 By reference to reports of, inter alia, the Human Rights Foundation of
Turkey, the complainant submits that, despite the efforts of the new Turkish
government to join the European Union, torture is still widespread and
systematic in Turkey, in particular with regard to suspected PKK members.
State Party's Additional Submission and Complainant's Comments
10.1 On 29 October 2003, the State party contests the complainant's
credibility and that he faces a risk of torture in Turkey. It submits that
the complainant did not describe the severity of the alleged torture to the
Federal Agency for the Recognition of Foreign Refugees on 2 May 1991, but
only eight and a half years later during the appeal proceedings. This raises
fundamental doubts about his credibility, which is further undermined by his
inability to explain the extent and prominence of his political activities
for the PKK in exile.
10.2 The State party contests that the complainant's expectation to be
recognized as a refugee merely on the basis of his conviction for
participation in a highway blockage was reasonable. It cites two judgments
denying refugee status to asylum seekers in similar circumstances.
10.3 As regards the standard of proof, the State party submits that a
complainant should be expected to present the facts of the case in a
credible and coherent manner, unlike in the present case.
10.4 Lastly, the State party argues that the human rights situation in
Turkey has improved significantly. The Turkish Government has demonstrated
its intention to facilitate the unproblematic return of former members or
followers of PKK and to respect their fundamental rights by adopting the Act
on Reintegration into Society on 29 July 2003. At the same time, the scope
of application of Section 169 of the Turkish Criminal Code was reduced
considerably, resulting in the discontinuance of numerous criminal
proceedings against PKK supporters. In the past three years, not a single is
reported where an unsuccessful asylum seeker who returned to Turkey from
Germany was tortured "in connection with former activities". The State party
indicates that it would monitor the complainant's situation after his
return.
11.1 On 30 January 2004, the complainant reiterates that inconsistencies in
his first application for asylum are irrelevant for the assessment of his
new claims in the second set of proceedings. His second asylum application
was based on his participation in a PKK training course as well as the
Turkish authorities' knowledge of the same.
11.2 For the complainant, the Sate party has conceded that training for a
PKK leadership role can place a member at danger upon return to Turkey. It
should therefore accept his claim that his activities for the PKK and his
introduction as a guerilla candidate place him at such risk.
11.3 As to the reasons for the late disclosure of his participation in the
PKK training course, the complainant reiterates that, on the basis of the
unanimous jurisprudence of the administrative courts in Hessen, where he
resides, he could reasonably expect to be recognized as a refugee on account
of his participation in the highway blockage. The diverging jurisprudence of
administrative courts in other regions of the State party was either of more
recent date or was unknown to him at the material time during the first set
of asylum proceedings.
11.4 The complainant argues that, in any event, the late disclosure of these
activities does not undermine his credibility on the whole. He invokes the
benefit of doubt, arguing that he presented sufficient evidence to
substantiate his participation in the PKK training course in a credible and
coherent manner.
11.5 Regarding the general human rights situation in Turkey, the complainant
submits: (a) that the armed conflict between the Turkish army and PHH/Kadek
forces is ongoing; (b) that, according to the Human Rights Foundation of
Turkey, the number of reported cases of torture has increased in 2003
totaling 770; (c) that, despite the reduction of the maximum length of
incommunicado detention to four days, torture is still widespread and
systematic, although methods such as beating or "Palestinian hanging" have
been replaced by more subtle methods which leave no trace, such as solitary
confinement or denial of access to clean drinking water and sanitary
facilities; (d) that none of the twenty complaints related to alleged cases
of torture which had been submitted in 2003 by the "Izmir Bar Association
Lawyers' Group for the Prevention of Torture" were investigated; and (e)
that the 2003 Act on Reintegration in Society requires former PKK members to
disclose their knowledge about other PKK members and that persons refusing
to disclose such information are often subjected to ill-treatment by the
authorities.
11.6 The complainant concludes that there are no sufficient safeguards to
ensure that he would not be tortured upon return, either during initial
interviews by the police or if he refuses to cooperate with the Turkish
authorities by disclosing information on the PKK.
11.7 The main proceedings concerning the complainant's application to reopen
asylum proceedings are still pending before the Administrative Court of
Frankfurt. In the absence of suspensive effect, these proceedings would not
stay his deportation, if the Committee decided to withdraw its request for
interim measures. Since it is unlikely for the Frankfurt Administrative
Court to order the re-opening of asylum proceedings, after having rejected
the complainant's application for interim relief, the only means to prevent
his expulsion would be a final decision of the Committee, with a finding of
a violation of article 3.
State Party Further Observations
12.1 On 15 March 2004, the State party confirmed that the Administrative
Court of Frankfurt had not taken a decision on the complainant's appeal
against the Federal Agency's decision of 6 February 2002 not to reopen
asylum proceedings and that this appeal has no suspensive effect. Although
the complainant was free to formulate another application for interim court
relief, such application would have little prospects of success unless it
was based on new facts.
12.2 The State party recalls that it has complied with the Committee's
request not to expel the complainant pending a final decision on his
complaint, despite the final rejection of his first asylum application, the
rejection by the Federal Agency to reopen asylum proceedings and the
dismissal by the Frankfurt Administrative Court of his request for interim
relief. Against this background, the State party requests the Committee to
adopt a decision on the merits of the complaint at its earliest convenience.
Issues and Proceedings Before the Committee
13.1 The issue before the Committee is whether the forced return of the
author is Turkey would violate the State party's obligation 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.
13.2 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 article 3, paragraph 2, including the existence
of a consistent pattern of gross, flagrant or mass violations of human
rights. In this regard, the Committee notes the State party's argument that
the Turkish Government acted to improve the human rights situation,
including through the enactment of the Reintegration into Society Act in
2003 and the discontinuance of numerous criminal proceedings against PKK
supporters. It also notes the complainant's argument recent legislative
changes have not reduced the number of reported incidents of torture in
Turkey (770 cases in 2003), and further recalls its conclusions and
recommendations on the second periodic report of Turkey, in which it
expressed concern about "[n]umerous and consistent allegations that torture
and other cruel, inhuman or degrading treatment of detainees held in police
custody are apparently still widespread in Turkey." [FN3]
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[FN3] Committee Against Torture, 30th Sess. (28 April-16 May 2003),
Conclusions and recommendations of the Committee Against Torture: Turkey, UN
Doc. CAT/C/CR/30/5, 27 May 2003, at para. 5 (a).
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13.3 The aim of the present determination, however, is to establish whether
the complainant would be personally at risk of being subjected to torture in
Turkey after his return. Even if a consistent pattern of gross, flagrant or
mass violations of human rights existed in Turkey, such existence would not
as such constitute a sufficient ground for determining that the complainant
would be in danger of being subjected to torture after his return to that
country; specific grounds must exist indicating that he 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.
13.4 In the present case, the Committee notes that the State party draws
attention to a lack of evidence about the complainant's participation in a
PKK training camp in the Netherlands in 1994, and to his failure to raise
this claim until late in the asylum proceedings. It equally notes the
complainant's explanations relating to the difficulty of presenting
witnesses from the PKK, his fear to reveal his claimed PKK membership,
punishable under German law, as well as the documentation and testimony he
submitted in support of his claims.
13.5 On the burden of proof, the Committee recalls that it is normally for
the complainant to present an arguable case and that the risk of torture
must be assessed on grounds that go beyond mere theory and suspicion.
Although the risk does not have to meet the test of being highly probable,
the Committee considers that the complainant has not provided sufficiently
reliable evidence which would justify a shift of the burden of proof to the
State party. In particular, it observes that the affidavit by F. S. merely
corroborates the complainant's claim that he was introduced as a "guerilla
candidate" at the Halim-Dener-Festival, without proving this claim, his
participation in the training camp or PKK membership. Similarly, the letter
dated 16 February 2003 of the International Association for Human Rights of
the Kurds, while stating that it was not implausible that the complainant
had temporarily been exempted from military PKK training in Turkey, falls
short of proving these claims. In the absence of a prima facie case for his
participation in the PKK training camp, the Committee concludes that the
complainant cannot reasonably claim the benefit of the doubt regarding these
claims. Moreover, the Committee observes that it is not competent to
pronounce itself on the standard of proof applied by German tribunals.
13.6 With regard to the complainant's conviction for participation in a
highway blockade by PKK sympathizers in March 1994, the Committee considers
that, even if the Turkish authorities knew about these events, such
participation does not amount to the type of activity which would appear to
make the complainant particularly vulnerable to the risk of being subjected
to torture upon return to Turkey.
13.7 Regarding the complainant's allegation that he was tortured during
police arrest in Mazgirt (Turkey), the Committee observes that these
allegations refer to events dating from 1989 and thus to events which did
not occur in the recent past. [FN4] In addition, the complainant has not
submitted any medical evidence which would confirm possible after-effects or
otherwise support his claim that he was tortured by Turkish police.
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[FN4] See CAT, General Comment 1: Implementation of article 3 of the
Convention in the context of article 22, 21 November 1997, at para. 8 (b).
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13.8 The Committee emphasizes that considerable weight must be attached to
the findings of fact by the German authorities and courts and notes that
proceedings are still pending before the Frankfurt Administrative Court with
regard to his application to reopen asylum proceedings. However, taking into
account that the Higher Administrative Court of Hessen dismissed the
complainant's first asylum application by a final decision,the complainant's
fresh claims relating to his alleged participation in a PKK training camp
have not been sufficiently corroborated (see para. 13.5) to justify further
postponing the Committee's decision on his complaint, pending the outcome of
the proceedings before the Frankfurt Administrative Court. In this regard,
the Committee notes that both parties have requested the Committee to make a
final determination on the complaint (see paras. 11.7 and 12.2) and
emphasizes that the complainant exhausted domestic remedies in the
proceedings for interim relief and that only this part of the second set of
asylum proceedings had suspensive effect.
13.9. The Committee concludes that, in the specific circumstances of the
case, the complainant has failed to establish a foreseeable, real and
personal risk of being tortured if he were to be returned to Turkey. The
Committee welcomes the State party's readiness to monitor the complainant's
situation following his return to Turkey and requests it to keep the
Committee informed about said situation.
14. The Committee Against Torture, acting under article 22, paragraph 7, of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment of Punishment, concludes that the State party's decision to return
the complainant to Turkey does not constitute a breach of article 3 of the
Convention.
[Adopted in English, French, Russian and Spanish, the English text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]
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