Submitted
by: Orhan Ayas [represented
by counsel]
Alleged
victim: The author
State
party: Sweden
Date of
communication: 12 November 1997
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 November 1998,
Having
concluded its consideration of communication No. 97/1997, 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, her counsel and the State party,
Adopts
its Views under article 22, paragraph 7, of the Convention.
1. The author
of the communication is Mr. Orhan Ayas, a Turkish citizen born in
1973, currently residing in Sweden where he is seeking asylum. He
claims that his forced return to Turkey would constitute a violation
by Sweden of article 3 of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment. He is represented
by counsel.
Facts
as presented by the author
2.1 The author
is a Kurd born and raised in Midyat, south-east Turkey. His family
has been known to the Turkish authorities for a long time because
several family members and friends have been involved in the activities
of the PKK (Partya Karkeren Kurdistan, Kurdistan Workers Party). They
also owned two cafes which were meeting places for PKK sympathizers.
As a result, members of the family have frequently been subjected
to arrest and interrogation. The frequency as well as the gravity
of the intimidation increased in the late 1980s, after one of the
author's brothers fled the country because of his political activities.
In 1991, when the author was 18, he was arrested three times by the
military police and interrogated, inter alia, about his brother's
activities abroad. On these occasions, the author states that he was
blindfolded and subjected to different methods of torture such as
beatings, being hung by his arms, hit on the soles of the feet, hosed
with high-pressure ice cold water and deprived of food. He also says
that he still has scars from this treatment. In 1991 he left Midyat
and went to Antalya, where he shared an appartment with four members
of the PKK.
2.2 In July
1992 he was arrested by the police, together with some Kurdish friends,
and kept in detention for two days during which he was interrogated
about his activities in Antalya and beaten. He was also pushed down
stairs as a result of which he injured one of his eyes. In August
1992 he participated in the organization of a non-authorized Kurdish
festival. Two of the organizers were arrested and subsequently sentenced
to prison terms. As the police were looking for him, the author fled
to Istanbul where he went into hiding until he managed to leave the
country.
2.3 The author
arrived in Sweden in February 1993 and applied for asylum. On 28 March
1994 the Swedish Immigration Board rejected the application on the
grounds that the information submitted lacked credibility. The Board
gave the following reasons for its assessment: (a) The author had
destroyed his passport and refused to reveal in what name and for
what nationality it had been issued; (b) he had not left Turkey immediately
after the event that he claimed had led to his flight; (c) he had
failed to make a convincing case that the authorities were interested
in him, since he had stated that he was not himself politically active.
2.4 The author
appealed to the Aliens Appeal Board claiming that he was afraid that
the persons who had assisted him to flee could be in trouble if he
revealed any information about the passport. For that reason he had
decided to follow their instructions and destroyed it. He reiterated
that immediately after the arrest of his two friends he had gone into
hiding until his family could arrange for his flight from Turkey.
He also stated that in September 1993 one of his brothers was arrested
and sentenced to 15 years' imprisonment for his activities with the
PKK. The author was informed by his family that, in that context,
the police had searched for him at his home in Midyat and beaten his
father and younger brother. In support of his claim the author submitted
a newspaper article regarding the incident in which his brother was
arrested. He also submitted a transcript of a court hearing concerning
the friends who had been arrested during the festival.
2.5 On 2
January 1995 the Aliens Appeal Board rejected the appeal for lack
of credibility, in view of the fact that the author had waited two
days before he applied for asylum and that he destroyed the passport
with which he had arrived in Sweden. Moreover, the Board stated that
the transcript of the court hearing did not confirm that the author
had been politically active.
2.6 The author
submitted a new application in which he disclosed, for the first time,
that he himself had actively supported the PKK. He explained that
his relatives had strongly advised him not to reveal any connection
with the PKK because of the risk of being considered a "terrorist"
by the Swedish authorities. The author also submitted the verdict
of a military court which showed that in 1993 he had been sentenced
in absentia to five years' imprisonment for his activities and affiliation
with the PKK. He had been sent the verdict by his father in Turkey.
On 7 March 1995 the Aliens Appeals Board rejected the new application.
The Board found that the author's explanation of why he had not revealed
his affiliation with the PKK at an earlier stage was not credible
and questioned the authenticity of the verdict of the military court.
2.7 The author
filed a second new application in which he requested that the Board
clarify its grounds for challenging the authenticity of the verdict.
This application was also turned down. The Board pointed out that
military tribunals no longer handled that type of case in Turkey and
noted that the stamps on the document were inconsistent with Turkish
law.
2.8 The author
changed counsel and filed a third new application based on the medical
examinations performed by a psychiatrist and a forensic expert from
the Centre for Torture and Trauma Survivors (CTD) at the Karolinska
University Hospital in Stockholm. The medical reports indicated, inter
alia, that the author suffers from post-traumatic stress syndrome
which can be attributed to his having been tortured and that the claim
of torture appeared to be entirely credible. The author also submitted
a transcript of the Security Court decision in which his brother was
sentenced to 15 years' imprisonment for his connections with the PKK.
One of the accused before the court disclosed that the author, who
was mentioned by name, had participated in an unlawful fund-raising
transaction for the PKK. The author also pointed out that the verdict
of the military court had been handed down in 1993, at a time when
the military courts were still competent in such cases. This new application
was rejected on 1 September 1997 on the grounds that the author lacked
credibility. As for the medical evidence, the Board considered it
insufficient to conclude that the author's injuries had been caused
by torture.
The
complaint
3.1 The author's
counsel argues that the Swedish authorities have based their decisions
not to grant asylum on their assessment that the author lacks credibility;
however, they have overlooked the factors explaining his behaviour
and attitude. For instance, he was only 20 years old when he arrived
in Sweden. Prior to his arrival he had lived a long time under severe
stress and had a well-founded fear of persecution. In this context,
he was instructed by the persons who assisted him to flee to destroy
the passport with which he arrived and not to reveal the name on the
passport. It could not be expected that, at this point, he would be
in a position to understand the weight the Swedish authorities would
attach to these circumstances. He applied for asylum on the second
day after his arrival, which can hardly be considered a significant
delay. His relatives strongly advised him not to reveal any personal
link with the PKK because of the risk of being considered a terrorist
by the Swedish authorities. During the initial interview the author
explained the basic elements that had provoked his flight to Sweden.
These are not inconsistent with his subsequent amendments.
3.2 Contrary
to article 3, paragraph 2, of the Convention, the Swedish authorities
have not taken into account all relevant circumstances in their assessment
of a future risk of torture. They have, moreover, attached unreasonable
weight to circumstances which they consider reduce the credibility
of the author's story as opposed to the substantial grounds submitted
in support of his claim. The circumstances in the case, including
the existence of a consistent pattern of gross violations of human
rights in Turkey and the fact that the author is a victim of torture,
clearly show that his return to Turkey would expose him to a particular
risk of being subjected to torture again.
State
party's observations
4.1 On 26
November 1997 the Committee, acting through its Special Rapporteur
for new communications, transmitted the communication to the State
party for comments and requested the State party not to expel the
author to Turkey while his communication is under consideration by
the Committee. In its submission to the Committee the State party
indicates that, following the Committee's request, the Swedish Immigration
Board decided to stay the enforcement of the expulsion order until
further notice, pending the Committee's final decision on the matter.
4.2 With
respect to the admissibility of the communication, the State party
submits that, in accordance with the Aliens Act, a new request for
a residence permit may be lodged with the Aliens Appeals Board at
any time, provided that new circumstances likely to call for a different
decision are raised. Moreover, on the basis of its arguments on the
merits, the State party maintains that the communication is incompatible
with the provisions of the Convention and should therefore be considered
inadmissible.
4.3 As for
the merits of the communication, the State party contends that, in
determining whether the forced return of the author would constitute
a breach of article 3 of the Convention, the following issues should
be examined: (a) The general situation of human rights in Turkey;
(b) the author's personal risk of being subjected to torture in Turkey;
and (c) the foreseeable and necessary consequences of his return to
Turkey.
4.4 With
respect to the general situation of human rights in Turkey the State
party submits, as a well-known fact, that arbitrary arrests, demolition
of villages and torture are used in the fight against the Kurdish
separatists. In its view, however, the situation is not so serious
that it constitutes a general obstacle to the deportation of Turkish
citizens of Kurdish origin. A large part of the Turkish population
consists of persons of Kurdish origin. While many of them live in
the south-east they are presently scattered all over the country where
they are completely integrated into Turkish society in general. If
an expulsion order is carried out with respect to a Turkish citizen
of Kurdish origin, he or she will not be deported from Sweden to the
Kurdish areas against his or her will, but to Istanbul or Ankara.
4.5 The Swedish
authorities have clearly found no substantial grounds for believing
that the author would be at risk of being subjected to torture upon
his return to Turkey. They have not considered that the information
about the author's political activities and torture is credible. Indeed,
there are a number of elements in the author's story which give rise
to doubts. In the initial investigation, following the first request
for asylum, the author clearly stated that neither he nor his family
had been engaged in political activities. He also informed the authorities
concerned that he did not leave Turkey immediately after the event
that led to his flight from the country and that he had no documents
on entry because he had destroyed them after his arrival in Sweden.
Owing to these circumstances, the immigration authorities concluded
that he had not made it credible that he was of interest to the Turkish
authorities.
4.6 In a
new submission the author claimed that he had been a member of the
PKK engaged in political activities. This new claim, however, was
not considered to be credible, nor was the explanation of why he had
not revealed the information at an earlier stage of the proceedings.
The authorities also questioned the authenticity of the document submitted
by the author which he claimed showed that he had been sentenced to
five years' imprisonment for political activities.
4.7 Furthermore,
in his third new application to the Aliens Appeal Board the author
claimed that his whole family was known to be opposed to the regime
in Turkey and submitted a copy of a judgement pronounced on 31 August
1995 by a security court in Izmir by which one of his brothers was
sentenced to 15 years' imprisonment for his connections with the PKK.
He himself was mentioned in the judgement.
4.8 Information
provided by the Swedish Embassy in Ankara, according to which tampering
with the copy of the judgement cannot be ruled out, further undermines
the author's general credibility. In a copy names and words can be
deleted and replaced without detection. The author could easily have
obtained and submitted an original or a duly authenticated copy of
the judgement. Moreover, the author is not mentioned among the suspects,
the condemned or the acquitted in the judgement, which means that
he was not even prosecuted.
4.9 The medical
reports fail to give sufficient support to the claim that the author's
injuries were caused in the manner described by him. One of the doctors
indicated in his written statement that the author was subjected to
torture in 1987. However, the author himself did not assert this.
No physical evidence has been found to confirm torture and it has
not been possible with any certainty to connect any of the injuries
to the alleged torture. It should also be noted that the author did
not produce any medical evidence and did not undergo any medical examination
until a late stage in the proceedings.
4.10 To sum
up, the author has not substantiated his allegation that he would
run a particular personal risk of being detained and tortured if he
were to return to Turkey. If he wishes to avoid the disturbances that
undoubtedly characterize the south-east region, he has the possibility
of staying in another part of the country.
4.11 On the
basis of the foregoing, the State party contends that the information
which the author has provided does not demonstrate that the risk of
being detained or tortured is a foreseeable and necessary consequence
of his return to Turkey. An enforcement of the expulsion order to
Turkey would therefore, in the present circumstances, not constitute
a violation of article 3 of the Convention. Furthermore, as a consequence
of the fact that the author's claims lack the substantiation that
is necessary in order to render the communication compatible with
article 22 of the Convention, the present communication should be
considered inadmissible.
Counsel's
comments
5.1 In his
comments on the State party's submission, counsel refers to the question
of exhaustion of domestic remedies and states that there are no new
circumstances that could justify filing a new application in accordance
with the Aliens Act. All remedies, therefore, have been exhausted.
5.2 Counsel
also refers to the statement that the author, if deported, would not
be returned to south-east Turkey. In this regard it should be emphasized
that persons suspected of affiliation to the PKK have no alternative
but to flee abroad; the author faces a substantial risk of being subjected
to torture anywhere in the country, regardless of which city he might
be returned to. Moreover, any involvement with the PKK is considered
as a very serious crime.
5.3 With
respect to the changes made by the author when telling his story to
the immigration authorities, counsel reiterates that the author did
conceal facts during the initial interview. However, he provided a
rational explanation as to why he did so. In addition, he gave an
account of the main elements of his story and was able to provide
evidence that the majority of his amendments were true. In view of
the medical evidence substantiating that he has been tortured, those
changes should not have a decisive effect on the author's general
credibility.
5.4 The State
party refers to a report by the Swedish Embassy in Ankara concerning
the judgement pronounced by the Security Court in 1995 and concludes
that tampering with the document cannot be excluded. The State party
concludes this to mean that the document may have been altered; however,
the opposite conclusion could equally be valid. To support its conclusion
of possible tampering the Embassy states, inter alia, that
the middle name of the author (i.e. Yusef) was not mentioned. It should
be noted, however, that "Yusef" is the name of the author's father,
as indicated in his identity document, and has incorrectly been attributed
to the author by the Swedish authorities. The author does not have
a middle name. It is also argued that the author's name is only mentioned
once in the verdict and that he was not one of the prosecuted. It
should be recalled, however, that this is a summary verdict concerning
several defendants and that the author had already fled the country
when it was issued. The verdict did not involve any persons who had
not already been arrested. The action attributed to the author in
the court decision falls under the anti-terrorist legislation and
confirms, therefore, that the Turkish authorities would have an interest
in him.
5.5 The State
party stresses that the author did not request asylum immediately
after his arrival. However, it has not given any explanation as to
why this circumstance should affect the credibility of the author.
5.6 With
respect to the assertion in one of the medical reports that the author
had been tortured in 1987, counsel provides a copy of a written statement
made by the psychiatrist on 13 May 1998 acknowledging that this was
his mistake. Counsel also contends that the State party never sought
an expert review of the medical reports nor contacted the Centre for
Torture and Trauma Survivors. This, however, should have been the
logical thing to do in view of the doubts the authorities had expressed
regarding the author's credibility.
5.7 In one
of the applications the author requested that, if the Appeal Board
had doubts as to the credibility of the information submitted, it
should allow the author an oral hearing. The Board rejected the request
without submitting any reasons. According to the Aliens Act such a
hearing is mandatory upon request, unless it would be immaterial for
the outcome of the case. Given that the Board's rejection was based
on the author's credibility, it is difficult to understand how an
oral hearing could be considered "immaterial for the outcome of the
case".
Issues
and proceedings before the Committee
6.1 Before
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 is further of the opinion that all domestic remedies have
been exhausted and finds that no further obstacles to the admissibility
of the communication exist. 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 to
Turkey would violate the obligation of Sweden 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
circumstances.
6.4 The Committee
is aware of the serious human rights situation in Turkey. Reports
from reliable sources suggest that persons suspected of having links
with the PKK are frequently tortured in the course of interrogations
by law enforcement officers and that this practice is not limited
to particular areas of the country.
6.5 It is
not in dispute that the author comes from a politically active family.
Moreover, the Committee considers the explanations regarding his own
political activities as credible and consistent with the findings
of the medical reports according to which he suffers from post-traumatic
stress syndrome and his scars are in conformity with the alleged causes.
Although the author changed his first version of the facts he gave
a logical explanation of his reasons for having done so. Hence, the
Committee has not found inconsistencies that would challenge the general
veracity of his claim.
6.6 In the
circumstances the Committee considers that, given the human rights
situation in Turkey, the author's political affiliation and activities
with the PKK as well as his history of detention and torture constitute
substantial grounds for believing that he would be at risk of being
arrested and subjected to torture if returned to Turkey.
7. In the
light of the above, the Committee is of the view that the State party
has an obligation, in conformity with article 3 of the Convention,
to refrain from forcibly returning the author to Turkey or to any
other country where he runs a real risk of being expelled or returned
to Turkey.
[Adopted
in English, French, Russian and Spanish, the English text being the
original version.]