CAT/C/24/D/126/1999

COMMITTEE AGAINST TORTURE

H.A.D. v. Switzerland

Communication No 126/1999

10 May 2000

CAT/C/24/D/126/1999

VIEWS

Submitted by: H.A.D. [name deleted] [represented by counsel]

Alleged victim: The author

State party: Switzerland

Date of communication: 21 January 1999

The Committee against Torture, established under article 17 of the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 10 May 2000,

Having 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 Punishment,

Having taken into account all information made available to it by the author of the communication

and the State party,

Adopts 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.

2.2 When 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 Turkish

army.

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

2.4 Later, 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.

Merits 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". 4

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 them.

Observations 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.

4.2 First, 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.

4.3 Furthermore, 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.

4.5 With 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 country.

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.

4.10 Finally, 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.

Comments 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

credibility.

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.

5.6 With 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.

5.8 With 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.

5.10 With 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.

5.11 The 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.

5.13 The 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.

5.14 With 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.

5.15 Lastly, 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.

Further 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.

6.2 According 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.

Further 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 intended.

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.

7.5 Lastly, 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.

Issues and proceedings before the Committee

8.1. 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. 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.

8.2. The 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.

8.3. 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. 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).

8.5. The 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.

8.6. However, 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 well-established.

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.

[Done in English, French, Russian and Spanish, the French text being the original version.]

Notes

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.

3/ Public statement by Amnesty International on 11 March 1998.

4/ Neue Züürcher Zeitung No. 19/1998, p. 5.

5/ Decision No. 61/1996, X, Y and Z v. Sweden, 6 May 1998.

6/ See Selahattin Celik, Die Todesmaschinerie "Tüürkische Konterguerilla", 1999, pp. 40-212.

7/ See Werner Spirig, Mit verdeckten Karten/Asylrecht im Schatten der Geheimdienste, 2nd ed.,

1996, passim.