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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 10 November 1997,
Having concluded its consideration of communication No. 28/1995, submitted
to the Committee against Torture under article 22 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Having taken into account all information made available to it by the author
of the communication, his counsel and the State party,
Adopts its Views under article 22, paragraph 7, of the Convention.
1. The author of the communication is a Turkish citizen of Kurdish ethnic
origin, born in 1961, who left Turkey in July 1990 and requested political
asylum in Switzerland on 23 July 1990. At the time of submission the author
was residing in Switzerland, but on 10 August 1995 he left Switzerland and
is now believed to be residing with relatives in Munich, Germany. In his
submission the author claimed that his expulsion to Turkey would have
constituted a violation of article 3 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Facts as Submitted by the Author
2.1 The author has been a sympathizer of the illegal organization Dev-Yol
since the end of the 1970s. He was involved in propaganda activities until
1980. At the end of 1980, he was arrested by the Turkish authorities and
kept in police detention for one and a half months, during which he was
tortured. Later he was again detained for a month, since he failed to appear
before the Military Tribunal.
2.2 In October 1980, the author started his military service. On 22 April
1983, the Military Tribunal acquitted the author of the charges against him.
The author states, however, that he continued to be harassed and detained
for short periods, despite his acquittal. After the trial, the author halted
his public political activities. In July 1988, while he was working at the
Atat�rk dam, he was stopped by the police and interrogated about the
political activities of his colleagues. One week later, he had a collision
with a military jeep, because of which he broke his lower leg and was unable
to work for 17 months. According to the author, the collision was no
accident, but an attack in order to scare him.
2.3 The author further explains that he was also in danger because of
political activities of family members. His elder brother was detained from
1975 to 1979/80 because of his membership in Dev-Yol, and has been in hiding
since. The author has lost contact with his brother, but states that the
police called him to their office and asked after his brother, about five
months before he left Turkey. When he was once again called to the police
office, the author became afraid and decided to leave the country. The
author further states that his wife and children had to leave their home
town Cat and are now staying with family in Mersin.
2.4 The author's application for refugee status was considered by the Swiss
Refugee Office, which reviewed his submissions against other relevant
information obtained by the Swiss Embassy in Ankara, from which it appeared
that the author was not personally in danger of detention or persecution. By
decision of 12 July 1994 the author's application for refugee status was
denied. The author's appeal was considered by the Asylum Review Commission,
which confirmed the earlier decision on 28 March 1995.
The Complaint
3. The author submits that Turkey is a country where torture is
systematically practised and that the human rights situation in the country
has been deteriorating over the past years. The author states that he is at
risk of being subjected to torture upon his return to Turkey because he is
Kurd, because he has been accused of membership in an illegal political
party and was put on a blacklist because of this, and because family members
are politically active and being persecuted by the authorities. The author
further refers to statements from three Kurd activists who have been
recognized as refugees in Germany, according to whom the author would be in
danger of being detained and tortured if he were to return to his country.
Admissibility Considerations
4.1 By note verbale on 22 December 1995 the State party informed the
Committee that the author had left Switzerland on 10 August 1995 and that he
was no longer within Swiss jurisdiction. It argued that pursuant to rule
107, paragraph 1 (b), of the Committee's rules of procedure, the author
lacked the quality of victim for purposes of article 22 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.
4.2 In his submission of 26 March 1996 author's counsel argued that the
author only left the territory of Switzerland because he believed that he
was in imminent danger of being returned to Turkey, since the Committee had
declined to request Switzerland, pursuant to rule 108, paragraph 9, of the
Committee's rules of procedure, that he not be expelled while the Committee
was seized of the case. The author, however, wished to maintain his
complaint before the Committee.
5.1 At its sixteenth session, the Committee considered the admissibility of
the communication. It noted that, pursuant to article 22, paragraph 1, of
the Convention, the Committee may consider a communication from an
individual who claims to be a victim of a violation of a provision of the
Convention by a State party, provided that the individual is subject to the
jurisdiction of that State party, and that the State has declared that it
recognizes the Committee's competence under article 22.
5.2 The Committee observed that at the time of the submission of the
author's communication, he was under the jurisdiction of the State party and
that the communication was properly registered. The Committee needed not to
examine the reasons why the author left the jurisdiction of the State party
and did not consider his absence from Switzerland a ground for
inadmissibility. In the absence of other obstacles to admissibility, and
bearing in mind that domestic remedies had been exhausted in Switzerland,
the Committee found that it should proceed to an examination of the merits
of the claim.
6. On 8 May 1996, the Committee therefore decided that the communication was
admissible.
State Party's Observations on the Merits of the Communication
7.1 The State party recalls that the author's claim has been duly examined
by the Office f�d�ral des r�fugi�s (ODR) and by the Commission de recours en
mati�re d'asile (CRA), and that the Swiss embassy in Ankara was requested to
inquire into some of the author's allegations. The State party notes that
the author bases his claim mainly on the fact that he was suspected of
membership of an illegal political party, but that he was acquitted of these
charges in 1983, and that he only left Turkey seven years later.
7.2 As to the merits of the communication, the State party submits that its
embassy in Ankara has made enquiries which show that the author is not
listed by the police, which appears logical since he was acquitted of the
charges against him. According to the State party, the author's declarations
about the arrests he has undergone since his acquittal are contradictory and
vary from instance to instance. As to his political activities after 1983,
the State party notes that the author never mentioned these before the ODR
and brought it up for the first time in his appeal to the CRA.
7.3 As to the author's accident in 1988, the State party argues that it is
very unlikely that this was an attack on him, given the fact that it
happened in the middle of the day, in the presence of many witnesses and
that it failed. The State party further points out that at first the author
declared that the collision was with a police jeep, whereas later he said
that it was with a military jeep. According to the State party, the
interrogation by the police a week before the accident appears to have been
routine procedure and is not linked to the accident.
7.4 As to the circumstances of the author's departure from Turkey, the State
party notes that the author states that he left Turkey illegally with a
falsified passport. However, the Swiss embassy in Ankara found that the
author had been issued a passport in 1991 by the competent authorities in
Tunceli, which the author has never mentioned. According to the State party,
if the author had left Turkey in the circumstances related by him, the
Turkish authorities would not have issued him a new passport.
7.5 As to the author's claim that close family members are politically
active and sought by the police, and that he therefore fears torture upon
his return to Turkey, the State party contends that the Turkish authorities
cannot possibly expect the author to have stayed in close contact with his
brother over the past five years, since he was residing outside the country.
The State party moreover points out that the author's brother was actually
arrested on 4 April 1985 for having a false identity card on him and
subsequently released, which seems to indicate that he is not being sought
by the authorities.
7.6 As to the author's own political activities, the State party notes that
they go back seven years and were subject to a judgement of acquittal. The
State party notes that Dev-Yol no longer manifests itself actively and is no
longer an object of interest on the part of the Turkish security forces.
7.7 The State party refers to the text of article 3 of the Convention and
observes that it does not imply that an automatic danger of torture exists
when human rights violations regularly take place in the country concerned,
but only that this situation must be taken into account when determining
whether a danger exists. The danger must be concrete, that is directly
affecting the applicant, and serious, that is highly likely to occur. With
reference to the arguments outlined above, the State party is of the opinion
that the author of the present communication has not shown the existence of
substantial grounds for believing that such a danger exists if he were to
return to Turkey.
7.8 With regard to the author's reference to the situation of Kurds in
Turkey, the State party argues that reference to a general situation cannot
in itself be evidence of the existence of a concrete and serious danger for
the author. Moreover, the State party argues that the author could establish
himself in another part of Turkey, if he believes that the region of Tunceli
is dangerous for him. In this context, the State party recalls that the
author's wife and children are now living in Mersin.
7.9 Finally, the State party recalls that Turkey is a party to the
Convention against Torture and also has recognized the Committee's
competence to examine individual communications under article 22 of the
Convention. According to the State party, a finding of a violation by the
Committee in the instant case would have serious and paradoxical results.
Counsel's Comments on the State Party's Submission
8.1 Counsel argues that the existence in a country of a pattern of gross,
flagrant or mass violations of human rights is in itself an indication that
a danger of torture exists. In this context, counsel notes that the State
party does not contest that such a pattern exists in Turkey.
8.2 Moreover, counsel refers to his initial communication and argues that
individual grounds for believing that the author would be in danger of
torture exist. In this context, counsel notes that the State party bases
itself on information provided by the Swiss embassy in Ankara. Counsel
claims that the information provided by this embassy has been proven wrong
on several occasions and therefore questions the reliability of the
information provided in the author's case.
8.3 Counsel further recalls that the author originates from Tunceli, and
that even the Swiss authorities are of the opinion that no refugee claimant
should be sent back to that area of Turkey because of the violence plaguing
the region. In its decision in the author's case, the CRA argued that the
author could safely return to other parts of Turkey. According to counsel,
the CRA has since changed its jurisprudence and now holds that no safe
alternatives exist for persons from Tunceli, since the province of origin is
always mentioned in the identity cards and since Tunceli has the image to be
PKK-friendly; as a consequence, persons from Tunceli are at a particular
risk during identity checks.
8.4 As regards the State party's argument that a finding of a violation
would lead to paradoxical situation, since Turkey is a party to the
Convention against Torture including article 22, counsel argues that
Turkey's ratification of the Convention and recognition of the complaints
procedure cannot preclude the application of article 3 to Switzerland.
State Party's Further Submission and Counsel's Comments Thereon
9.1 In a further submission, the State party explains that the information
in which the embassy has recognized that it has erred in the past concerned
declarations that a person was not in possession of a passport, and that
this does not affect the information provided by the embassy in the author's
case. According to the State party, the CRA has found the information
provided by the embassy to be fully reliable. Furthermore, the State party
points out that the information furnished by its representations abroad is
only one of many elements on which the authorities base their decisions.
9.2 With regard to Tunceli, the State party acknowledges that the CRA has
rendered a decision in which it is stated that persons from Tunceli run
particular risks during identity checks because of their place of origin.
However, the State party argues that the fact that the author is from
Tunceli is not in itself sufficient to conclude that he cannot live in
security elsewhere in Turkey. In this context, the State party points out
that thousands of Kurds have established themselves in the west of Turkey in
recent years and that in Istanbul alone more than three million Kurds are
registered.
10.1 Counsel notes that the State party has not contested that its embassy
in Ankara has provided wrong information in the past. He contends that this
wrong information was not limited to declarations about the issuance of
passports. Counsel refers to a report published by the Swiss Refugee Aid
Organisation, in which it is stated that, although it cannot be contested
that the information provided by the embassy is reliable in relatively many
cases, mistakes can easily be made and a whole list of cases exists in which
the Embassy gave information which was later shown wrong. Counsel also
refers to the Committee's Views in communication No. 21/1995 (Ismail Alan v.
Switzerland) in which the Committee concluded that the return to Turkey
would constitute a violation of article 3 of the Convention, despite
information provided by the Swiss embassy in Ankara that the author was not
being sought by the police and that no passport prohibition for him existed.
10.2 Counsel explains that the embassy's enquiries are made by an officer of
the ODR accredited to the Ministry of Foreign Affairs. According to counsel,
the Turkish authorities would certainly not provide any information which
could damage their interests. Since most of this information is to be
considered as illegally gathered, because of the lack of an international
legal basis, counsel argues that this evidence should be treated with
circumspection.
10.3 Counsel submits that for Kurds from Tunceli no real possibility exists
to settle elsewhere in Turkey, and that they are subject to human rights
violations also in the west of Turkey. Counsel refers to the Committee's
Views in communication No. 21/1995 (Ismail Alan v. Turkey) in which the
Committee held that since the police were looking for the author, it was not
likely that a "safe" area for him existed in Turkey.
10.4 Finally, counsel submits that the human rights situation in Turkey has
not improved, and that Amnesty International, in its annual report of 1996,
reports that torture is being used routinely as has also been recognized by
the Committee. Counsel also refers to a judgement by the Swiss Federal Court
of 11 September 1996, concerning an extradition to Turkey, in which the
Court found that serious human rights violations took place in Turkey, and
that the extradition should therefore be subject to certain assurances.
Examination of the Merits
11.1 The Committee has considered the communication in the light of all the
information made available to it by the parties, in accordance with article
22, paragraph 4, of the Convention.
11.2 The Committee must decide, pursuant to paragraph 1 of article 3,
whether there are substantial grounds for believing that E. A. would be in
danger of being subject to torture upon return to Turkey. In reaching this
decision, the Committee must take into account all relevant considerations,
pursuant to paragraph 2 of article 3, including the existence of a
consistent pattern of gross, flagrant or mass violations of human rights.
The aim of the determination, however, is to establish whether the
individual concerned would be personally at risk of being subjected to
torture in the country to which he or she would return. It follows that the
existence of a consistent pattern of gross, flagrant or mass violations of
human rights in a country does not as such constitute a sufficient ground
for determining that a particular person would be in danger of being
subjected to torture upon his return to that country; additional grounds
must exist to show 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.
11.3 The Committee has noted that the State party's argument that the danger
to an individual must be serious ("substantial") in the sense of being
highly likely to occur. The Committee does not accept this interpretation
and is of the view that "substantial grounds" in article 3 require more than
a mere possibility of torture but do not need to be highly likely to occur
to satisfy that provision's conditions.
11.4 In the present case, the Committee notes that the author's political
activities date back to the beginning of the eighties, at which time he was
arrested, tortured, prosecuted and acquitted. The author himself states that
he did not resume his activities and although was interrogated by the police
twice (once in 1988 and once five months before leaving) there is no
indication that the police intended to detain him. In this context, the
Committee finds also that the author has not provided substantiation for his
claim that the collision with a jeep in 1988 was in fact an attack on him.
The Committee further notes that the author has not contested the State
party's assertion that the authorities in Tunceli issued him a passport in
1991, and that there is no indication that the police are looking for him at
present.
11.5 The Committee is aware of the serious human rights situation in Turkey,
but recalls that, for the purposes of article 3 of the Convention, a
foreseeable, real and personal risk must exist of being tortured in the
country to which a person is returned. On the basis of the considerations
above, the Committee is of the opinion that such risk has not been
established.
11.6 The Committee considers that the information before it does not show
that substantial grounds exist for believing that the author will be
personally at risk of being subject to torture if he is returned to Turkey.
12. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, is of the view that the facts as found by the
Committee do not reveal a breach of article 3 of the Convention.
[Done in English, French, Russian and Spanish, the English text being the
original version.]
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