6. On 8 May
1996, the Committee therefore decided that the communication
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 fédéral des réfugiés (ODR) and by the Commission
de recours en matière 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
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.
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.
comments on the State party's submission
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.
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
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.
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.
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.
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.
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.
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.
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
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
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
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