by: M.K.O. (name withheld) [represented by counsel]
victim: The author
communication: 25 May 1999
against Torture, established under Article 17 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
on 9 May 2001,
concluded its consideration of communication No. 134/1999, submitted
to the Committee against Torture under article 22 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
taken into account all information made available to it by the author
of the communication, his counsel and the State party,
its Views under article 22, paragraph 7, of the Convention.
1.1 The author
of the communication is Mr. M.K.O., born in 1970 and a Turkish
national of Kurdish origin, currently residing in the Netherlands. The
author applied for refugee status in the Netherlands on 22 June 1997.
His application was rejected. He claims that his deportation to Turkey
would expose him to a risk of torture and constitute therefore a violation
by the State party of article 3 of the Convention. He is represented
1.2 In accordance
with article 22, paragraph 3, of the Convention, the Committee transmitted
the communication to the State party on 26 May 1999 and requested it
to provide observations on the admissibility and merits of the communication.
The State party was also requested, pursuant to rule 108, paragraph
9, of the Committee's rules of procedure, to defer the removal of the
author to Turkey while his communication was under its consideration.
as presented by the author
2.1 The author
comes from a village located in the region of Tunceli, Turkish Kurdistan,
where for many years there has been a war between the Turkish army and
the Kurds. He claims to have been urged several times by the Turkish
military to become a village guard, which he always refused.
2.2 The author
alleges that as a village guard he would have to kill Kurds and Alevis,
his own people. Because of this refusal, he was very often ill-treated.
He was beaten on several occasions by the Turkish militaries. During
the winter, the author and other Kurds were forced to stand barefoot
in the snow for hours. The author suffers from a kidney ailment as a
result. Sometimes he and other Kurds were threatened with death and
their food supplies stopped by the Turkish military. The author also
alleges that he was arrested on several occasions and taken to the forest
or the mountains where he was tortured.
2.3 When the
author's neighbours were arrested for giving food to the guerrillas,
he decided to leave Turkey because he was afraid of being arrested for
the same reason. He arrived in the Netherlands on 21 June 1997 and applied
for refugee status the same day. His request was turned down on 22 August
2.4 After two
unsuccessful appeals to the Ministry of Justice and to the court, on
22 February 1999, the author made a second application for refugee status,
which was also rejected as were the subsequent appeals. The date of
26 May 1999 was set for his removal to Turkey.
2.5 The author
is an active member of the Kurdish Union in The Hague and in various
Kurdish activities. He has run in marathons for the Kurds in the Netherlands
and Germany, and has been seen with his Kurdish music band, Zylan several
times on MED-TV, a Kurdish television station in Europe which can also
be seen in Turkey and which was recently forbidden. On 16 February 1999,
he was arrested in the Netherlands along with 300 other Kurds during
a demonstration against Abdullah Ícalan's extradition to Turkey. Since
then, he has remained in detention because he does not have a residence
3. The author
alleges that he will be at serious risk of torture if he is removed
to Turkey and that the removal decision is therefore a violation of
article 3 of the Convention.
party's observations on the admissibility and merits
4.1 In a submission
dated 6 December 1999, the State party transmitted to the Committee
its observations on the merits of the communication. In its communication
it did not raise any objections with regard to the admissibility of
the communication and made a summary of the facts of the case and of
the national procedure, as well as of the various arguments made by
4.2 In relation
to the merits, the State party considers that not all Kurds from Turkey
can be granted asylum and that the author has to prove a personal risk
of torture, which he failed to do. Although the State party does not
dispute the ethnic origin of the author, it states that the latter was
unconvincing on this issue during the asylum procedure; it therefore
rejects the allegation by the author that the investigation into his
ethnic origin was not conducted with sufficient care.
4.3 The State
party maintains that the author has not proved that he would attract
special attention from the Turkish authorities because he expressly
said that he had never been arrested and had never had any problem despite
having helped the PKK. It was only during the appeal phase of the asylum
procedure that the author told the Dutch authorities that he was once
arrested by three soldiers in civilian clothes. The author has never
furnished a clear explanation for this contradiction.
4.4 The discrimination
and degrading treatment to which the author has allegedly been subjected
do not necessarily lead to the conclusion that he should be recognized
as a refugee because, although daily life for Kurds in south-eastern
Turkey is probably not easy, it is not intolerable and "such treatment
probably takes place in the large Kurdish community with a certain amount
4.5 Even accepting
that the author has had problems with Turkish soldiers does not imply
that he would risk such treatment again throughout Turkey. Indeed, the
author travelled to Istanbul in 1996 and had no problems. He is therefore
free to resettle in another part of Turkey.
the author's activities in the Netherlands, the State party considers
that the fact of being a member of the band Zylan, of having appeared
on MED-TV with his band several times, of having attended PKK celebrations,
of having competed in marathons as a Kurd and of having participated
in a demonstration in support of Abdullah Ícalan and having been arrested
during this demonstration do not constitute significant opposition activities
and are therefore not of such a nature as to attract the attention of
the Turkish authorities. Even his arrest after the demonstration is
not significant in this regard because he was arrested along with many
4.7 In the
State party's opinion, there is no element in the author's escape from
Turkey or in his activities in the Netherlands that provides substantial
grounds for believing that he faces a personal risk of being tortured
if he were to be returned in Turkey.
5.1 In a submission
of 26 January 2000, counsel for the author made her comments on the
observations of the State party.
5.2 With regard
to the Kurdish origin of the author, counsel makes a few remarks in
order to explain the confusion that may have emerged during the various
interviews. Nevertheless, the ethnic origin of the author is no longer
disputed by the State party. Counsel also notes that PKK does not have
a membership system for security reasons, which partly explains why
the author was not a "member" of any organization.
argues that the problems faced by the author while he was in Turkey
would indeed draw the attention of the Turkish authorities if the author
returned to his country. She also notes that it is usual for more information
to become available towards the end of the procedure because more questions
are asked and because the author, with only a primary-school education,
may have had some difficulties in understanding questions at the beginning
of the procedure. Counsel also argues that people applying for refugee
status as soon as they arrive in the State party do not have sufficient
time to reflect on their declarations and are subjected to a significant
number of obligations during the first weeks of the procedure, which
may sometimes lead to confusion.
Tunceli, the region of origin of the author, counsel contends that life
there has indeed become intolerable and, because the place is a symbol
of Kurdish resistance, notes that any person from this area would encounter
problems throughout Turkey; this implies that the author could not easily
resettle in another part of Turkey. Counsel quotes in this regard the
Dutch Foreign Minister who stated that the fact of refusing to be a
village guard is interpreted as implicit support for the PKK.
5.5 With regard
to the demonstration that took place in The Hague on 17 February 1999,
counsel mentions that A. Kisaoglu, a Kurd of Dutch nationality, was
arrested in Turkey a few days after the demonstration and badly tortured
for five days. According to counsel, the Turkish authorities arrested
him because they were informed that his son had been arrested during
the demonstration in The Hague. However, it appeared later that this
was not the case. Counsel considers that this incident demonstrates
that the Turkish authorities can obtain information about political
events related to the Kurdish question that occur outside Turkey and
subsequent arrests or detentions, which raises the possibility of cooperation
between the Turkish and Dutch security services.
concerning the author's other activities in the Netherlands, counsel
refers to several statements from the Dutch Foreign Ministry according
to which MED-TV is considered by the Turkish authorities to be the voice
of PKK and that Kurdish music is sometimes forbidden, two elements that
would certainly constitute satisfactory reasons for the Turkish authorities
to arrest the author upon his arrival in Turkey.
on various other cases, counsel underlines that a significant number
of Kurds who have been repatriated from the State party to Turkey and
whose whereabouts could be monitored have been detained and tortured
by the Turkish authorities.
to the extent that the author stated from the outset of the asylum procedure
that he had been tortured, counsel deplores the State party's failure
to take steps to assess the medical profile of the author, which it
had many opportunities to do.
Comments by the State party
6.1 In a submission
dated 6 September 2000, the State party made additional comments on
the observations of the author.
6.2 The State
party first draws the attention of the Committee to the fact that it
no longer disputes the Kurdish origin of the author.
6.3 The State
party further notes that there has been some confusion and mistranslation
on the part of counsel of the words "torture" and other "ill-treatment",
the latter using both terms indifferently.
6.4 The State
party still considers that the author has not furnished a convincing
explanation as to the reasons why he neglected to mention some elements
of his story during the first part of the asylum procedure.
6.5 The State
party also firmly rejects the allegations of counsel that the State
party has given information to the Turkish authorities concerning the
persons detained after the pro-Kurd demonstration.
6.6 In respect
of the statement from the Dutch Foreign Ministry on the subject of MED-TV,
the State party notes that counsel has cited sentences out of their
context and gives the full text of the statements.
6.7 The State
party emphasizes that it has given continued attention to the situation
of Kurds in Turkey. This is illustrated by the fact that the State party
suspended the expulsion of Kurds to Turkey after it had been informed
of the death in Turkey of a former Kurdish asylum-seeker in the Netherlands.
Following the inquiry into this case and four other cases, to which
counsel was presumably referring, the State party noted that the persons
concerned had not experienced particular problems with the Turkish authorities
after their return. These conclusions were endorsed by the judiciary
of the State party, and the Government lifted the suspension on expulsions.
the State party considers that the author also has had ample time to
obtain medical documents confirming the treatment to which he claims
he was subjected.
and proceedings before the Committee
considering any claims contained in a communication, the Committee 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.
7.2 The Committee
also notes that all available domestic remedies have been exhausted
and that the State party has not contested the admissibility of the
communication. The Committee finds therefore that the communication
is admissible. The State party and the author have both made observations
on the merits of the communication and the Committee therefore proceeds
to examine the merits.
7.3 The Committee
must decide, pursuant to article 3, paragraph 1, of the Convention,
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, of the
Convention, 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 or
her 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.
7.4 The Committee
notes the arguments developed by both parties and considers that the
author has not given any satisfactory explanation for the contradictions
between his different statements to the Dutch immigration authorities.
It notes that he fulfilled his military obligation without any appreciable
problems and finds that he has not demonstrated that his later activities
in the Netherlands could draw the attention of the Turkish authorities
to the extent that he would risk being tortured were he removed to Turkey.
7.5 The Committee
concludes that the author has not furnished sufficient evidence to substantiate
his claim that he would run a personal, real and foreseeable risk of
being tortured if he were sent back to his country of origin.
8. As a consequence,
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 constitute a breach of article 3 of the Convention.