CAT/C/26/D/147/1999

Y.S. (name deleted) v. Switzerland,

Communication No. 147/1999,

U.N. Doc. CAT/C/26/D/147/1999 (2001).

Communication No. 147/1999

Submitted by: Y.S. (name deleted) [represented by counsel]

Alleged victim: The author

State party: Switzerland

Date of the communication: 7 October 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 15 May 2001,

Having concluded its consideration of communication No. 147/1999,

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 by the

author of the communication and the State party,

Adopts the following decision:

1.1 The author of the communication is Mr. Y.S., a Turkish citizen of

Kurdish origin born on 7 June 1953 and currently residing in

Switzerland, where he applied for asylum on 18 June 1998. His

application having been turned down, he maintains 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 transmitted the communication to the State party on 21

October 1999. At the same time, the State party was requested,

pursuant to rule 108, paragraph 9, of the Committee's rules of

procedure, not to expel the author to Turkey while his communication

was under consideration by the Committee. In a submission dated 14

December 1999, the State party informed 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 and Ms. S., Turkish nationals of Kurdish origin,

married in 1977 and then lived in their home in Elazig, a town in

south-eastern Turkey. At that time the author owned two shops

selling electrical appliances, one in Elazig and the other in Pertek, a

district of the city of Tunceli where he had grown up. In 1991, he

closed the shop in Pertek, and at the end of 1994 closed the shop in

Elazig because of constant harassment by the police.

2.2 Since the 1980s, the author had been an active supporter of the

leftist Kurdish party known as PSK (Socialist Party of Kurdistan),

which published a newspaper entitled Oezg.rl.k.Yolu. The author

would read and sell this paper, the name of which was often changed

because it was regularly banned. At the same time, he was an activist

in the Turkish Human Rights Association (IHD).

2.3 On 21 March 1993, two IHD representatives in Elazig were

murdered. Their bodies were found in the street bearing obvious signs

of torture: their ears had been cut off and their eyes put out. The

author attended their funerals.

2.4 Until 1994 the author was repeatedly harassed by the police

because of his opinions and political activities. In 1994, the author's

shop was raided by the police, who found a copy of the above-

mentioned newspaper and other PSK publications. The author was

forced to board a minibus and taken blindfolded to an unknown place.

For three days he was severely tortured in an attempt to make him

give information to the police and to become an unofficial

collaborator. Despite the torture methods used, he refused to give any

information or to become an informal collaborator. After three days

he was released. He continued to work in his shops despite constant

police harassment. At the end of 1994, he decided to close the shop in

Elazig.

2.5 From then on, the author and his family had no fixed abode,

living in three different places: in Kizilkale, where the author's

parents have a farm; in Mersin, where he owns another apartment;

and in Elazig, in a dwelling owned by a friend which they rented a

few months after fleeing.

2.6 One night in April 1996, the police broke into the rented

apartment in Elazig where the author and his family were sleeping.

The author was beaten and taken to a place where he was physically

and psychologically tortured for two and a half days. He then agreed

to work for the police, who said that he could begin working in two

weeks' time. On being released, he returned to his home, collected his

family and hid them at a friend's home until they left for Istanbul.

While his family members were with this friend, the author's eldest

son, aged 17, was arrested by the police while on his way to see his

grandfather and was held in custody. The police informed him that he

would not be released unless his father came to fetch him in person.

On learning of this, the author and his family left for Istanbul, where

they stayed at the home of one of his brothers.

2.7 On 4 June 1996, the author, his wife and another son caught a

plane and, via Milan, arrived illegally in Switzerland on 5 June 1996.

All of them were in possession of their passports.

2.8 On the day of their arrival in Switzerland, the author and his

family applied for asylum. Their application was rejected by the

Federal Office for Refugees on 27 May 1998. The author argues in

particular that, in support of its decision refusing him refugee status,

the Federal Office for Refugees maintained that he had given

contradictory information concerning his place of residence between

1994 and 1996. The author lodged an appeal against this decision,

which was rejected on 3 August 1999 on the grounds that his pleas

were unconvincing. In this appeal, he requested a second medical

examination, which was refused.

2.9 The author states that he arrived in Switzerland traumatized by

the torture he had undergone. He began a course of medical treatment

on 9 July 1996 and he was also advised to obtain psychological

treatment. On 8 April 1997, the doctors sent the Federal Office for

Refugees a report stating that the author should spend three weeks in

hospital because of pains in his spinal column. On 18 April 1997, a

psychiatric report requested by the Federal Office for Refugees found

that he was suffering from post-traumatic stress disorder.

The merits of the complaint

3. The author states that if he were returned to Turkey he would be

arrested, would again be tortured and might be killed in an

extrajudicial execution.

The State party's observations

4.1 In a note verbale dated 14 December 1999, the State party

declares that it does not contest the admissibility of the

communication.

4.2 As to the merits of the communication, the State party explains

that the Swiss Appeal Commission on Asylum Matters considered

that the author's statements concerning the period from 1994 until his

second arrest in 1996 were not credible since he had no longer been

in Elazig as from 1994. Moreover, it is difficult to believe that the

author would have hidden at the home of one of his friends, T.K.,

since that person was particularly vulnerable politically and his

telephone was being tapped by the Turkish security forces. In the

opinion of the Federal Office for Refugees, there was no causal link

between the author's possible arrest in 1993 and his departure from

Turkey in 1996.

4.3 Furthermore, the State party emphasizes that the Swiss Appeal

Commission on Asylum Matters, unlike the Federal Office for

Refugees, considers that the allegations concerning the author's arrest

and subsequent torture are also lacking in credibility. It was highly

doubtful that the author would have been able to continue his

business activities for a period of 18 months after having been

arrested and tortured, given the effectiveness of the repression by the

Turkish security forces.

4.4 Similarly, the State party points out that the medical examination

of the author simply accepted at face value the author's explanation of

the causes of the disturbances from which he was suffering, without

questioning them. For that reason the Swiss Appeal Commission on

Asylum Matters refused to allow a second medical examination.

4.5 In the view of the State party, the arguments presented by the

author in his communication add nothing to those presented to the

Swiss authorities. On the contrary, in his communication he claims

that he was tortured not in 1993 but in 1994, whereas in the Swiss

internal proceedings he repeated on several occasions that the events

did take place in 1993, in July at the latest.

4.6 In general, the State party entirely endorses the grounds adduced

by the Swiss Appeal Commission on Asylum Matters in support of its

decision to reject the author's application for asylum.

4.7 In the light of article 3 of the Convention, the State party points

out that, in accordance with the Committee's jurisprudence, this

provision provides no protection to the author, who simply maintains

that he is afraid that he will be arrested on his return to his country.

4.8 The State party questions the veracity of certain facts to which the

author has referred only in his communication, such as the name and

address of the friend at whose home he claims to have sought refuge.

Furthermore, he gave the Committee this information on a

confidential basis and on condition that the Swiss authorities took no

action to verify its authenticity. However, the State party could also

have obtained this information in the same conditions.

4.9 The State party points out that the inquiries undertaken by the

Swiss Embassy in Ankara have shown that the author was not wanted

by the police. His name does not appear in any police records in

relation to possible criminal or political activities. Moreover, it was

not until investigations had been carried out by the Embassy that the

author was obliged to admit that he owned a home in Mersin, a fact

which he had initially concealed from the Swiss authorities.

4.10 On the question of the medical certificates, the State party

considers that they are not sufficient to eliminate the contradictions

and implausibilities contained in the author's statements. The Swiss

Appeal Commission was by no means convinced that the post-

traumatic disturbances from which he claimed to be suffering were

the consequence of the acts of torture which he alleges. In this

context, it must be emphasized that the person who conducted the

medical examination was both the therapist and the person who

prepared the expert report.

4.11 With the exception of the alleged arrest of his eldest son in April

1996, the State party considers that the author has never demonstrated

that members of his family or members of his wife's family have been

sought or intimidated by the Turkish authorities, let alone arrested or

tortured. This fact leads to the view that the author and his family

would therefore be in no danger of being arrested or tortured in the

event of their return to Turkey. (1)

4.12 Similarly, the author has never demonstrated that he has engaged

in activities which might have been beneficial to PSK. He was not a

member of this party but merely a sympathizer and, even in this

capacity, he acknowledged that he had never distributed brochures for

the party.

4.13 Lastly, the State party considers that the author's explanations

concerning the manner of his departure from Turkey with his family

are open to question. The Swiss Appeal Commission on Asylum

Matters considered it unlikely that a person wanted by the police

would have been able to leave Turkey from Istanbul airport without

let or hindrance. In view of the extremely strict security checks

carried out at this airport, it is likely that a false or forged passport

would have been detected. Moreover, the State party considers

implausible the contention that the passports were in the possession

of a third party.

4.14 The State party accordingly considers that the author's

statements do not permit the conclusion that there are substantial

grounds for believing, in accordance with article 3, paragraph 1, of

the Convention, that the author would be in danger of being subjected

to torture if the decision to return him to Turkey were carried out.

The author's comments

5.1 In a communication dated 14 July 2000 the author commented on

the State party's observations.

5.2 Concerning the date of the first arrest, he states that his counsel

admits having himself made a mistake over the dates, probably

because the author, too, confused them at the time of the second

interrogation. Nevertheless, while making it clear that this arrest

occurred in 1993, the author points out that it was not questioned by

the Swiss authorities.

5.3 As to his work within the party, the author wishes to make it clear

that, at his second interview, he stated that he shared the party's ideas

and supported the party, but that he did not play an active part in it. In

addition, he makes it clear that he played a limited role in distributing

the party newspaper. Lastly, he recalls that he was arrested in 1993

because party newspapers had been found in his apartment and he had

been accused of having distributed pamphlets.

5.4 The author recalls that, in his appeal to the Swiss Appeal

Commission on Asylum Matters, he was prepared to give his friend's

name and address on condition that that information was not used by

the Swiss Embassy in order to carry out inquiries into their

relationship.

5.5 Concerning the inquiries carried out by the Swiss authorities in

Turkey, the author considers that it is impossible for a Turkish

security organization to give such information to Switzerland. As to

the apartment in Mersin, the author did not consider that information

to be sufficiently important. Furthermore, it was not true that they had

moved completely from Elazig to go and live in Mersin, as the Swiss

authorities maintained. Consequently, it could not be said that it was

impossible for the author to be arrested in Elazig.

5.6 As to the veracity of the medical examination conducted by Dr.

M., if the Federal Office for Refugees had not contested the veracity

of the torture in 1993, the author wonders why the possibility that he

was still traumatized by that torture should be ruled out, when it was

known that he had been forced to remain standing in freezing water

and that his fingers had been squeezed with pincers. Furthermore, Dr.

M.'s description of the report as an "expert report" was motivated by

the request made by the Federal Office for Refugees. However, the

State party had provided no information as to the form that the report

should take. Similarly, the psychiatric diagnosis of post-traumatic

stress disorder does not depend on measurable objective signs. In any

judicial procedure, if the medical report is considered to be

unsatisfactory, a second report must be requested.

5.7 In the opinion of the State party, the author's brothers have not

been persecuted in Istanbul and Izmir because of him. Moreover, the

State party considers that the author and his family could return to

Turkey without any problem. However, the arrest of the author's

eldest son is not contested. In this connection, the author maintains

that his brothers and sisters live in Istanbul and that he had little

contact with them; furthermore, they were too far from Elazig to be

able to give any information about him. As to the author's eldest son,

he has not lived in Elazig since the time the author arrived in

Switzerland. The year the author left, the son moved to Istanbul to

live with his family.

5.8 As to the State party's argument that the author has ceased to

work for PSK since his arrival in Switzerland, the author states that

PSK is very active in Switzerland, notably in Lausanne and Basel, but

not in Bern where he lives. Nevertheless, the author regularly attends

its meetings.

5.9 Concerning the State party's doubts that the author had lived with

a friend who worked for PKK, the author maintains that his friend

had completely concealed his activities from the security forces. The

security forces had, however, visited Mr. K. in order to prevent him

from participating in certain activities. Mr. K. was quite old and died

in 1999.

Issues and proceedings before the Committee

6.1 Before considering any of the allegations in a communication, the

Committee against Torture must decide whether or not the

communication is admissible under article 22 of the Convention. It

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. It also notes that all domestic remedies

have been exhausted and that the State party has not contested the

admissibility of the communication. It therefore considers that the

communication is admissible. As both the State party and the author

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 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 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 article 3, paragraph 1,

whether there are substantial grounds for believing that the author

would be in danger of being subjected to torture if he was returned to

Turkey. In reaching this decision, the Committee must take into

account all relevant considerations, pursuant to article 3, paragraph 2,

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 or

her return to the country. There must be other grounds 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 might not be subjected to torture in his or

her specific circumstances.

6.4 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).

6.5 The Committee notes that the medical examination undergone by

the author indicated the presence of post-traumatic stress.

6.6 However, on the basis of information submitted by the author, the

Committee notes that the events which prompted his departure from

Turkey date back to 1993 and appear to be linked in particular to his

relations with PSK. The purpose of the arrests and torture which he

says he underwent in 1993 and 1996 seemed to be to elicit

information or to induce him to collaborate with the security forces.

On the other hand, there is no indication that since his departure from

Turkey in 1996 the members of his family, and notably his son, have

been sought or intimidated by the Turkish authorities. Moreover, the

Committee takes note of the information furnished by the Swiss

Embassy in Ankara, which establishes that the Turkish police have no

file on the author.

6.7 In these circumstances, the Committee considers that the author

has not furnished sufficient evidence to justify his fear of arrest and

torture on his return.

6.8 The Committee against Torture, acting under article 22, paragraph

7, of the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, considers that the decision of

the State party to return the author to Turkey does not constitute a

breach of article 3 of the Convention.

Note

1 Cf. H.D. v. Switzerland, communication No. 112/1998 (para. 6.5),

and A.L.N. v. Switzerland, communication No. 90/1997 (para. 8.5).