by: H.A.D. [name deleted] [represented by counsel]
victim: The author
communication: 21 January 1999
against Torture, established under article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
on 10 May 2000,
concluded its consideration of communication No. 126/1999, 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. H.A.D., a Turkish citizen of Kurdish origin
born in 1962 and currently residing in Switzerland, where he applied
for asylum on 11 March 1991. His application, however, was turned
down and he claims that his forcible repatriation to Turkey would
constitute a violation by Switzerland of article 3 of the Convention
against Torture. He is represented by counsel.
1.2 In accordance
with article 22, paragraph 3, of the Convention, the Committee brought
the communication to the attention of the State party on 8 February
1999. At the same time, the State party was requested, pursuant to
article 108, paragraph 9, of the Committee's rules of procedure, not
to expel the author to Turkey while his communication was under consideration.
On 6 April 1999, the State party notified the Committee that steps
had been taken to ensure that the author was not returned to Turkey
while his case was pending before the Committee.
The facts as submitted by the author
2.1 The author
comes from the south-eastern part of Turkey. His family owns a farm
in the village of Bazlama, in the Karakocan region of Elazig province
in south-eastern Turkey, an area traditionally inhabited by the Kurds.
the author was living in Turkey, most of the members of his family
had problems with the authorities. His older brother Y., an active
supporter of the Kurdish Workers' Party (PKK) since 1979, joined the
PKK fighters in 1986 and was killed during a battle on 13 February
1995. His father died on 15 January 1980, three months after surviving
a month in prison, where he had been tortured. He had been arrested
on account of his son Y.'s activities in the PKK. The circumstances
surrounding their father's death traumatized the author's younger
brother, V., an asylum-seeker in Switzerland. At the age of nine,
V. was unable to talk for several months following his father's arrest
by the security forces. He has been suffering since then from chronic
psychological problems, for which he has needed psychiatric help,
including in Switzerland. The only brother of the author to stay in
Turkey had to change his surname in order to avoid further persecution.
The author's wife was forced to agree to a divorce for the same reasons.
Lastly, the author cites the names of several other members of his
family who were refugees in Switzerland or who were killed by the
2.3 In 1985,
the author was jailed about one month after the arrest of a cousin,
N.S., who today has refugee status in Switzerland, on charges of acting
as a guide (or "pathfinder" (1)) to this cousin and
other guerrillas in 1984. During his detention, he was ill-treated
and tortured. The doctor's observations on the medical certificate
he has produced can only be interpreted as referring to the effects
of the torture to which he was subjected. The author emphasizes that
such observations of torture cannot be confirmed by a doctor without
endangering the latter's life. (2)
he took part in the 1991 spring festivities (Newroz), which
had been moved forward to January for political reasons. The festivities
came to an end when the security forces arrived. One guerrilla and
two soldiers were killed. The author managed to escape undetected;
he went back to Istanbul and left the country as he was afraid he
would be persecuted again for taking part in the festivities.
2.5 The author
applied for asylum in Switzerland on 11 March 1991. He was questioned
on 15 May 1991 and 29 March 1994. The author stresses that these rounds
of questioning were difficult for him because of his lack of schooling;
moreover, the fact that the second one took place three years after
the first meant that his memory of events changed. His lack of education
also accounts for his ignorance of various aspects of the PKK and
explains why he did what he could to support this organization. The
Federal Office for Refugees turned down the author's application for
asylum on 1 November 1994. The author's appeal to the Swiss Appeal
Commission on Asylum Matters was rejected on 6 November 1998.
of the complaint
3.1 The author
claims that torture is commonly used in Turkey during police interrogations,
as has been confirmed by the European Committee for the Prevention
of Torture and Inhuman or Degrading Treatment or Punishment. According
to the author, people committing acts of torture are protected by
the 1991 Anti-Terrorist Act and by the courts and tribunals. (3)
"This state of affairs will never change as long as the Turkish
Republic is based on the myth of an ethnically homogeneous Turkish
people, sustained despite all proof to the contrary by an army fighting
an unwinnable war that the Turkish economy can ill afford, the cost
of which has led to the corruption of the entire political class".
3.2 The first
argument put forward by the author is that he comes from a family
with close links to the PKK and whose mere reputation could give him
the most serious kinds of problems with the Turkish authorities, including
torture. As emphasized in a court ruling in Stuttgart, Germany, concerning
his cousin F.M., as a member of a family that has suffered deeply
from persecution, the author will certainly be tortured if he returns
to Turkey. The risk is real and personal since he has already been
subjected to torture and the Turkish authorities rightly believe that
he has helped PKK guerrillas by doing small favours for them and supporting
by the State party on the admissibility and merits of the communication
4.1 The State
party did not contest the admissibility of the communication and made
observations on its merits in a letter dated 9 August 1999.
the State party recalls that the existence of a pattern of mass, flagrant
or systematic violations of human rights in a country does not as
such constitute a sufficient ground for concluding that a person would
be in danger of being subjected to torture if he returned to that
country. There must also be grounds for believing that the author
would be personally at risk.
the State party does not believe the author can claim to be the victim
of "deliberate persecution", defined as government reprisals
against the families of political activists. Even though the author's
older brother Y. was wanted for his PKK activities, there had been
no contact between the two of them for over 10 years, according to
the author's statements when he applied for asylum. It is therefore
unlikely that the author was wanted by the Turkish authorities at
the time of his flight. As the Committee has already recalled, the
fear of persecution must be of a current nature at the time when the
communication is under consideration. (5) Moreover, Y. was
killed on 13 February 1995 and this gives the Turkish authorities
even less reason to look for the author. Lastly, with the death of
Y., the author no longer has any family members in Turkey who are
active members of the PKK. Those who might be subjected to "deliberate
persecution" are either outside Turkey or dead.
4.4 The State
party does not see how the situation of his younger brother V., an
asylum-seeker in Switzerland, whatever his psychological state, can
have anything to do with the alleged risks of torture faced by the
author. As for the brother who stayed in Turkey, while he may have
changed his name to avoid persecution, it should be stressed that
the author's mother, ex-wife and children also live in Turkey and
have kept the same name. The State party is therefore of the view
that the brother's change of name owes more to the fact that the surname
D. is very widespread in Turkey than to a real fear of persecution.
regard to the author's divorce, the State party wonders why it took
place only three years after the author's departure and why it was
not his wife who applied for it if the aim of the divorce was purely,
according to the author's statements, to avoid her continued persecution.
The State party believes the reasons for the divorce have more to
do with the irreparable breakdown of the marriage, as mentioned on
the separation certificate. This impression is confirmed by the author's
request for publication of a notice of intent to marry, submitted
in February 1999 and withdrawn a few weeks later.
4.6 The State
party recalls the Committee's general comment on the implementation
of article 3 of the Convention, according to which the risk of torture
"must be assessed on grounds that go beyond mere theory or suspicion",
even though "the risk does not have to meet the test of being
highly probable". In the light of the above, the State party
does not consider that the author has demonstrated that the risk of
"deliberate persecution" is highly probable. Indeed, according
to information provided by the Swiss embassy in Ankara, there is no
political file on the author or any file in which it is stated that
he has committed a crime under ordinary law; neither the local nor
the national police or gendarmerie are looking for him and there are
no restrictions at all on his use of a passport. Someone from his
village also confirmed that the author had left over 10 years earlier
and had settled in Istanbul before leaving for Switzerland.
4.7 On the
question of the allegations of torture and ill-treatment suffered
by the author in the past, the State party first draws attention to
the factors to be taken into account according to the general comment
on the implementation of article 3 of the Convention. On the basis
of this, it then refers to the observations made by the Swiss authorities
on the author's application for asylum and notes that the author produced
two letters from a lawyer explaining his problems which contained
numerous spelling and syntactical mistakes and which had been drafted
in a very unprofessional way. The author argues that the lawyer was
a Kurd and did not know Turkish very well, but the State party points
out that Turkish is the official language in Turkey, that the laws
are written in Turkish and that lawyers' training is given in Turkish.
It is therefore highly unlikely that a lawyer would not know Turkish
well. The State party also points out that the author makes no further
mention of an accommodation document from the Muthar of Bazlama
and a forged letter from the Karakocan public prosecutor, and this
would suggest that the author no longer contests the observations
by the Swiss authorities in this regard. The State party then states
that no probative value can be attached to the medical report that
is supposed to prove that acts of torture took place. For one thing,
the report asserts that the "treatment" lasted from 23 May
to 3 June 1985, whereas the author has said he was released on 29
June 1985; for another, the author's description of the torture he
underwent - including blows, burns, paralysis of two fingers and electric
shocks to the genitals - does not correspond to what is described
in the medical report. Lastly, the State party draws attention to
the contradictory statements in which the author claimed on one occasion
that, after seven days in detention, he had been taken before a prosecutor
who released him after his family paid a sum of money to an "Oberleutnant"
(lieutenant-colonel) and, on another occasion, that he had never been
taken before a prosecutor and that his uncle had paid a security to
either a judge, a prosecutor, or a "Hauptmann" (captain)
or an "Oberst" (colonel).
4.8 The State
party also considers that, even if the author was indeed tortured,
there is no satisfactory causal link between his detention and his
flight from Turkey. According to previous decisions of the Committee,
the foreseeable nature of the risk seems in practice to mean that
a causal relationship must be established between the persecution
suffered and the reasons for fleeing. In the view of the State party,
this relationship is non-existent when there is a lapse of seven years
between the persecution and departure from the country, particularly
since the author did not resume his political activities in the host
4.9 The State
party has serious doubts about the author's credibility in terms of
his commitment to the PKK. Although he spoke of a whole series of
activities and events he had taken part in, he was unable to give
any substantial information on the PKK that was not common knowledge
in Turkey; the stereotypical accommodating statements made by cousins
who are refugees in Switzerland, to the effect that the author was
active in the PKK, do nothing to refute these observations. The State
party also stresses that it is rather surprising that counsel for
the author should assert in the communication that a lack of schooling
is the cause of this ignorance when the author claims to have been
active in this organization for over 10 years and to come from a family
of political activists, including a cousin who was a founder member
of the PKK. Lastly, the argument that the contradictions in the accounts
given at the different hearings are the result of the three-year gap
between them is unconvincing insofar as the author had the opportunity
to reread the minutes of the hearings and had to sign them.
with regard to the general situation in Turkey prevailing and described
by the author with the help of various supporting documents, the State
party recalls that, while it should indeed be taken into account when
assessing the risk, for the purposes of article 3 of the Convention,
the Committee believes there must be a foreseeable, real and personal
risk that the person will be tortured if he is returned to the country.
The State party also stresses that it regularly reassesses the situation
in Turkey and recently decided that a person could not be repatriated
to the author's home province (Elazig). However, the areas of conflict
are clearly defined and it is quite possible for the author to settle
in another, calmer region where he will be able to fit in easily,
particularly given his knowledge of Turkish and his level of education.
by the author
5.1 In a
letter dated 25 October 1999, the author commented on the State party's
observations on the merits of the communication.
5.2 The author
first of all regrets that the State party's observations focus on
arguments he never intended to put forward. For example, he never
claimed that his younger brother's psychological problems were proof
of the risk of torture facing him if he returned to his country. The
author only wished to emphasize that he came from a family with particularly
close links to the PKK and which, as a result, was certainly targeted
by the Turkish authorities. It is in this context that he fears, quite
rightly, that he will be tortured if he returns. (6)
5.3 It seems
that the State party no longer contests any of the events the members
of the author's family were involved in in connection with their activities
in the PKK. This proves, therefore, that the author must have been
involved with the PKK in one way or another.
5.4 The author
has always given the same account of his detention in 1985 and clearly
bears the marks of it. Another medical report will be produced to
bear this out. The inconsistencies and contradictions pointed out
by the State party are minimal and do not detract from the author's
5.5 It is
true that Turkey does not recognize the principle of family responsibility.
However, no one disputes that the Turkish authorities resort to reprisals
against family members in their fight against the PKK. This explains
why Y.O., the author's brother-in-law, was arrested, beaten and tortured
by the Turkish authorities in August 1996 to extract information from
him on members of his family and, in particular, the author's situation.
In this connection, the author provides a copy of the State Security
Court's decision of 10 September 1996.
regard to his contacts with his brother Y., the author emphasizes
that he illegally sent him a number of items from Switzerland that
would be useful in his guerrilla activities, and this is of course
illegal as far as the Turkish authorities are concerned and is a further
reason why the author is afraid of returning to the country. Furthermore,
the State party did not faithfully transcribe the author's statements:
the author in fact stated that he had not seen his brother
for 10 years before he left, but that did not stop him from having
contact with him.
5.7 The author
stands by his explanation of why his brother I. changed his name,
saying it would be foolish to believe that someone could so easily
change his name just because it was a very common name.
regard to the author's divorce, it is clear that the real grounds
for the divorce could not be revealed to the court and the fact that
he tried to become socially integrated in Switzerland, by means of
a marriage that in the end did not take place, had absolutely nothing
to do with his divorce in 1994. Moreover, he continues to provide
for his family.
5.9 The information
on the author collected by the Swiss embassy in Ankara is highly suspect.
The Turkish Government is under no obligation to provide such information
to the State party and it is doubtful that it would voluntarily give
accurate information on a conflict taking place in the south-east
of the country. This information is in no way a reliable basis for
proving there is no risk.(7) Moreover, the State party has
never really disputed the facts of the author's detention in 1985.
regard to the only contradiction found in the author's accounts of
his appearance before a prosecutor, he emphasizes that it involves
a legal term which is difficult to translate into Turkish, that he
did not know the precise meaning of that term, since he had only had
seven years of schooling, and that the hearings were held in Turkish,
which is not his mother tongue. Furthermore, his uncertainty over
the rank of the person who received the sum of money has no bearing
on the author's credibility. As to the claim that some of the documents
are false, the author is convinced that they are authentic and, even
supposing some of them were forgeries, that would not have been the
result of a deliberate choice on his part and could even have been
justified by his extreme fear of being tortured again.
author considers the simple spelling mistakes in the lawyer's letters
to be irrelevant and a relatively feeble argument. He also refutes
the State party's claims that he had accepted its observations on
his lack of credibility.
5.12 The author finds it inexcusable that the State party did not
have a medical examination carried out in connection with the torture
he had been subjected to. His injuries have indeed affected his memory
and it is easy to find inconsistencies in the account of a person
who has been tortured.
author confirms that he has had only minimal schooling, and this explains
why he has no place in the PKK hierarchy. However, this lack of education
did not stop him from carrying out all the activities he reported
to the Swiss authorities.
regard to the State party's argument that he contradicted himself
in his account of his flight from Turkey, the author gives some details
of this journey, although, according to him, they are not an important
aspect of the persecution he suffered.
on the question of the possibility of his settling in another region,
the author points out that, in order to return to Turkey, he would
have to go through border controls. His name alone and the fact that
most members of his family have fled the country will ensure that
he is detained while an investigation is carried out in his home province.
During that time, he will be subjected to extreme interrogation methods.
observations by the State party
6.1 In a
letter dated 25 January 2000, the State party provided its final comments
on the above observations by the author.
to information provided to the Swiss embassy in Ankara by a contact
who lives in the author's home village, the author's sister, S.O.,
and her husband, Y.O., were arrested in 1996 by gendarmes, but, contrary
to the author's assertions, they were not tortured. In addition, it
appears that, according to the same informants, Y. and S.O. spend
their holidays every year in Bazlama.
comments by the author
7.1 By letter
of 17 April 2000, the author submitted his final comments, particularly
on the report by the Swiss embassy in Ankara.
7.2 The author
considers that a contact's statements to the Swiss embassy in Ankara
to the effect that there was no incident at the burial of N.O. are
false. The State Security Court's decision of 10 September 1996 shows
that the author's brother-in-law was arrested and charged with supporting
an illegal organization.
7.3 The author
points out that the other Swiss embassy contact in Ankara is the mayor
of the village of Balzama and that he had to be somewhat cautious
about imparting information since he was not sure for whom it was
7.4 The author
considers that the State party should on no account base itself on
information to the effect that the author is not wanted, first because
of the difficulty of verifying the source and secondly because the
police would not refrain from arresting the author in the event of
his return to Turkey for that reason. The author is convinced that
he would be arrested upon his return because he based an application
for asylum on pro-Kurdish activities. When the border guards conducted
their inquiry, they certainly consulted the gendarmerie, who were
familiar with the circumstances of his brother's and father's death.
by letter of 11 May 2000, the author transmitted a document according
to which information concerning the registration of wanted persons
in not disclosed to anyone prior to their arrest apart from the police.
The Turkish police thus had no reason to inform the Swiss embassy
of their wish to arrest the author.
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. In
this case, the Committee notes that all available domestic remedies
have been exhausted and that the State party has not contested its
admissibility. The Committee finds therefore that the communication
is admissible. The State party and the author have each made observations
on the merits of the communication and the Committee therefore proceeds
to examine it on its merits.
issue before the Committee is whether the return of the author to
Turkey would violate the obligation of the State party under article
3 of the Convention not to expel or return the person to another State
where there are substantial grounds for believing that he would be
in danger of being subjected to torture.
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.
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. Other grounds must exist that indicate 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.
8.4. The Committee recalls its general comment on the implementation
of article 3, which reads:
"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).
Committee does not doubt the allegations of ill-treatment to which
the author was subjected during his 28-day detention after his arrest
in 1985, even though the medical reports do not substantiate the author's
description of acts of torture or their effects.
in view of the time that has elapsed between the events described
by the author, the establishment of the veracity of his claims and
the present day (15 years have passed), the current risk for the author
of being subjected to torture or "deliberate persecution"
on being returned to Turkey does not appear to have been sufficiently
8.7. In the
light of the above, 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 would not constitute
a breach of article 3 of the Convention.
English, French, Russian and Spanish, the French text being the original
1. The word
used in the original communication.
2. See Vincent
Iacopino, "Torture in Turkey and its unwilling accomplices",
Physicians for Human Rights, 1996, pp. 4-9.
statement by Amnesty International on 11 March 1998.
Zürcher Zeitung No. 19/1998, p. 5.
No. 61/1996, X, Y and Z v. Sweden, 6 May 1998.
6. See Selahattin
Celik, Die Todesmaschinerie "Türkische Konterguerilla",
1999, pp. 40-212.
7. See Werner
Spirig, Mit verdeckten Karten/Asylrecht im Schatten der Geheimdienste,
2nd ed., 1996, passim.