CAT/C/80/D/1020/2020

GE.24-14623 (E) 270824 280824

Committee against Torture

Decision adopted by the Committee under article 22 of the

Convention, concerning communication No. 1020/2020*, **

Communication submitted by:

A.M. (not represented by counsel)

Alleged victim:

The complainant

State party:

Finland

Date of complaint:

28 June 2020 (initial submission)

Document references:

Decisions taken pursuant to rules 114 and 115 of

the Committee’s rules of procedure, transmitted

to the State party on 30 July 2020 (not issued in

document form)

Date of adoption of decision:

12 July 2024

Subject matter:

Deportation of the complainant to the Russian

Federation or Turkmenistan

Procedural issues:

Level of substantiation of claims; exhaustion of

domestic remedies

Substantive issue:

Risk of torture if deported to country of origin

(non-refoulement)

Article of the Convention:

3

1.1

The complainant is A.M., a dual national of the Russian Federation and Turkmenistan

born in 1987 in Turkmenistan. At the time of submission of the communication, his request

for asylum in Finland had been rejected and he was facing removal to the Russian Federation

or Turkmenistan. The complainant claims that, if Finland were to proceed with his removal,

it would be in violation of its obligations under article 3 of the Convention. The State party

has made the declaration pursuant to article 22 (1) of the Convention, effective from

30 August 1989. The complainant is not represented by counsel.

1.2

On 30 July 2020, pursuant to rule 114 of its rules of procedure, the Committee, acting

through its Rapporteur on new complaints and interim measures, asked the State party not to

deport the complainant to the Russian Federation or Turkmenistan while the communication

was being considered by the Committee.

* Adopted by the Committee at its eightieth session (8–26 July 2024).

** The following members of the Committee participated in the examination of the communication:

Todd Buchwald, Jorge Contesse, Claude Heller, Erdogan Iscan, Peter Vedel Kessing, Liu Huawen,

Maeda Naoko, Ana Racu, Abderrazak Rouwane and Bakhtiyar Tuzmukhamedov.

United Nations

CAT/C/80/D/1020/2020

Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment

Distr.: General

28 August 2024

Original: English

CAT/C/80/D/1020/2020

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GE.24-14623

Factual background1

2.1

The complainant graduated from a Turkmen-Turkish high school, joined Hizmet/(the

Gülen movement) and continue his education in Istanbul. He converted to Islam when he was

16, just before he moved to Türkiye. He lived in Istanbul for 11 years. As an active member

of Hizmet, he regularly attended religious events organized by the movement. He worked for

various organizations established by Hizmet, including the NGO Kimse Yok Mu.2 In 2016,

the complainant left Türkiye, as many people with whom he had worked in Hizmet or whom

he knew from the movement had been arrested or had been forced to flee, and his Turkish

residence permit had been cancelled following the closure of the NGO that he worked for.

By that time, his Turkmen passport had expired,3 and the authorities in Turkmenistan refused

to issue a new one unless he returned to the country, which he could not do for fear of

persecution. He was therefore using his international Russian passport, 4 which had been

issued by the embassy of the Russian Federation in Turkmenistan in 2009 and renewed in

Istanbul in 2014. He therefore decided to go to the Russian Federation, where he learned that

this passport allowed him to stay for only three months, after which he would be required to

re-register. However, owing to the growing threat that Hizmet faced from the Government

of the Russian Federation, he understood that he had to leave the Russian Federation

immediately. He therefore decided to go to Finland.

2.2

On 11 November 2016, the complainant applied for asylum in Finland.5 On 7 March

2018, the Finnish Immigration Service rejected his application. According to the complainant,

the Service considered that there were no significant grounds for believing that the

complainant had been threatened with the death penalty, torture or other inhuman or

degrading treatment in the Russian Federation. The complainant submits that the Service

considered the Russian Federation to be the complainant’s home country and believed that

the authorities in that country could not send him back to Turkmenistan. The complainant,

however, submits that he could be arrested in the Russian Federation and sent back to

Turkmenistan.

2.3

The complainant appealed to the Helsinki Administrative Court.6 On 11 September

2019, the Administrative Court rejected the complainant’s appeal. It considered that even

though Hizmet members had been prosecuted and severely sentenced in the Russian

Federation, it could not be concluded that Hizmet members had been subjected to systematic

violence or other serious violations of their rights in that country. On 27 September 2019, the

complainant filed an appeal before the Supreme Administrative Court, which was rejected

on 30 December 2019.

2.4

On 7 January 2020, the complainant reapplied for asylum. In its decision of 7 February

2020, the Finnish Immigration Service declared the application to be inadmissible with

respect to international protection, rejected the complainant’s application for a residence

permit and decided to return him to his home country, the Russian Federation. At the same

time, the Service prohibited the complainant from re-entering Finland or any other Schengen

State for two years. The complainant appealed the decision of the Service. In its interim

decision of 11 June 2020, the Administrative Court rejected his request to suspend the

enforcement of the Service’s decision.

2.5

On 2 July 2020, the Finnish Immigration Service decided that the complainant would

be in need of asylum in Turkmenistan under section 87 of the Aliens Act. However, the

Service concluded that the complainant’s profile as a member of Hizmet would not put him

in danger of persecution in the Russian Federation under section 87 of the Aliens Act. The

Service therefore rejected his second application and banned him from entering Finland and

1 The information provided by the complainant has been complemented by the submissions received

from the State party.

2 The complainant has provided a letter from the coordinator of Kimse Yok Mu indicating that he had

worked for that organization between 2015 and 2016.

3 The complainant has provided a copy of his expired Turkmen passport.

4 The complainant has provided a copy of his Russian passport but has not explained how he obtained

Russian nationality.

5 The complainant has not provided any information on when he arrived in Finland.

6 The date of the appeal has not been provided by the complainant.

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the Schengen area for two years. He submitted an appeal to the Administrative Court once

again. On 17 September 2020, the Administrative Court rejected the complainant’s appeal

against the decision of the Service. The Administrative Court allowed the complainant’s

deportation to the Russian Federation.

Complaint

3.1

The complainant submits that Turkmenistan remains one of the most repressive and

closed countries in the world. Torture remains a grave problem there, particularly in

high-security facilities. There have also been massive human rights violations against Hizmet

members in the Russian Federation.7 The complainant claims that his deportation to the

Russian Federation or Turkmenistan would violate his rights under article 3 of the

Convention. He fears being tortured in the Russian Federation or Turkmenistan, as both

countries have qualified Hizmet as an extremist terrorist organization. He claims that, if he

is deported to the Russian Federation or Turkmenistan, he will face a high risk of being

subjected to torture or inhuman treatment on account of his background as a member of

Hizmet.

3.2

The complainant claims that the State party’s asylum authorities have not made any

effort to establish the facts or assess the risks he would face in the Russian Federation and

Turkmenistan. He claims that the State party used a passive approach in considering his case.

He further claims that he has health problems.8

State party’s observations on admissibility and the merits

4.1

On 30 November 2020, the State party challenged the admissibility of the complaint,

arguing that the claims made by the complainant were inadmissible ratione personae because

the complainant lacked victim status within the meaning of rule 113 (a) of the Committee’s

rules of procedure. The State party argues that the complaint is inadmissible ratione materiae

because, while the complaint has been submitted to the Committee under article 3, the

complainant also invoked the Universal Declaration of Human Rights and the International

Covenant on Civil and Political Rights. The State party also argues that the complainant’s

claims are manifestly unfounded within the meaning of rule 113 (b) of the Committee’s rules

of procedure, because his claims have already been considered through comprehensive

domestic administrative and judicial processes.

4.2

The State party submits that the communication is inadmissible for failure to exhaust

domestic remedies. In this regard, the State party notes that the complainant filed an appeal

against the Finnish Immigration Service’s decision of 7 February 2020 before the

Administrative Court. The State party also notes that, under the Aliens Act, an appeal against

an Administrative Court decision may be filed before the Supreme Administrative Court, if

the Supreme Administrative Court grants leave to appeal, and applications for leave to appeal

must be filed within 14 days from receipt of the decision. In the present case, the State party

argues that the deadline for submitting an appeal seems to have passed without the

complainant having filed an application for leave to appeal with the Supreme Administrative

Court. Therefore, the State party concludes that all available domestic remedies have not

been exhausted, as required under article 22 (5) (b) of the Convention and rule 113 (e) of the

rules of procedure of the Committee.

4.3

On 3 March 2021, the State party reiterated its arguments on admissibility. On the

merits, the State party recalled in detail the decisions issued at the domestic level. It

concluded that the complainant had not provided sufficient evidence indicating that there

were substantial grounds for believing that he would be personally at risk of treatment

amounting to torture under article 1 of the Convention.

7 No documentation has been submitted by the complainant to support this claim.

8 The complainant did not specify the nature of his alleged health issues.

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Complainant’s comments on the State party’s observations on admissibility and

the merits

5.

On 7 August 2021,9 the complainant submitted his comments on the State party’s

observations. In particular, he noted that Turkmenistan remained one of the most repressive

and closed countries in the world and that torture remained a grave problem, particularly in

high-security facilities. The complainant also submits that Hizmet was a contentious issue in

the Russian Federation, with the movement’s schools closed down and staff members

deported from the country between 2001 and 2006.10 The complainant further submits that,

following the closure of the schools, Hizmet-affiliated Russian and Turkish citizens were

accused of seditious religious activities and of advocating pan-Turkish ideas. He also

contends that the Committee has, on several occasions, underlined the widespread torture and

other cruel, inhuman or degrading treatment or punishment of detainees committed by law

enforcement personnel in the Russian Federation, commonly to obtain confessions. The

complainant therefore reiterated that, if he were removed to the Russian Federation or

Turkmenistan, he would be exposed to torture and inhuman treatment since both countries

consider Hizmet to be an extremist terrorist organization.

Issues and proceedings before the Committee

Consideration of admissibility

6.1

Before considering any complaint submitted in a communication, the Committee must

decide whether it is admissible under article 22 of the Convention. The Committee has

ascertained, as it is required to do under article 22 (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.

6.2

The Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it

shall not consider any communication from an individual unless it has ascertained that the

individual has exhausted all available domestic remedies. In this regard, the Committee

observes that the complainant filed an appeal against the decision of the Finnish Immigration

Service concerning his first asylum application before the Administrative Court and before

the Supreme Administrative Court. The Committee takes note of the State party’s argument

that the complainant failed to file an appeal before the Supreme Administrative Court against

the decision of the Administrative Court of 17 September 2020 regarding his second asylum

application dated 7 January 2020.

6.3

The Committee recalls its jurisprudence that a complainant has the duty to diligently

exhaust all available domestic remedies.11 In the present case, based on the information

available on file, the Committee observes that, under section 196 (1022/2018) of the Aliens

Act, the Supreme Administrative Court shall consider appeals concerning matters referred to

it in relation to an application for a residence permit granted on the basis of asylum or

subsidiary protection, rejection of an application for temporary protection or removal from

the country.12 The Committee also observes that the complainant has not put forward relevant

arguments that an appeal to the Supreme Administrative Court is not an effective remedy or

that he was prevented from submitting an appeal. In this connection, the Committee recalls

that the mere fact of doubting the effectiveness of a remedy does not absolve a complainant

from the obligation to exhaust it.13 The Committee considers that the Supreme Administrative

Court should have the opportunity to examine the merits of the case, as it did with the

complainant’s first asylum application. Accordingly, the Committee considers that, in the

circumstances of the present case, the complainant has failed to exhaust all available domestic

remedies, as he has not applied to the Supreme Administrative Court.

9 The complainant reiterated the same comments on 3 May 2022.

10 No documentation has been submitted by the complainant to support this claim.

11 See Yassin v. Canada (CAT/C/43/D/307/2006), para. 9.3; H. E.-M. v. Canada,

(CAT/C/46/D/395/2009), paras. 6.4 and 6.5; and Z.H. v. Canada (CAT/C/56/D/604/2014), para. 7.3.

12 See also section 193 (16/2017), paras. 1–3.

13 S.B. v. Canada (CAT/C/73/D/912/2019), para. 6.4.

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6.4

Accordingly, and in the light of all the information before it, the Committee considers

that, in the present case, the complainant had an available and effective remedy that he failed

to exhaust. It therefore finds the communication inadmissible under article 22 (5) (b) of the

Convention.

6.5

In the light of this finding, the Committee does not deem it necessary to examine any

other grounds for inadmissibility.

7.

The Committee therefore decides:

(a)

That the communication is inadmissible under article 22 (5) (b) of the

Convention;

(b)

That the present decision shall be communicated to the complainant and to the

State party.