by: K.M. [name deleted] [represented by counsel]
victim: The author
communication: 23 February 1998
against Torture, established under article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
on 16 November 1999,
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
taken into account all information made available to it by the
author of the communication and the State party,
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.
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 without charge.
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.
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 authorities.
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.
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.
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 country.
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 whereabouts.
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.
and proceedings before the Committee
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 merits.
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
6.4 The Committee
recalls its general comment on the implementation of article 3 which
"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.
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 been established.
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
English, French, Russian and Spanish, the French text being the original