Inadmissibility decision; Subjects: GERMANY, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]
Volltext (verifizierbarer Originaltext)
GE.25-20334 (E) 120126 130126
Committee against Torture
Decision adopted by the Committee under article 22 of the
Convention, concerning communication No. 1121/2022*, **
Communication submitted by:
H.D. (represented by counsel, Ali Yildiz)
Alleged victim:
The complainant
State Party:
Germany
Date of complaint:
9 February 2022 (initial submission)
Document references:
Decision taken pursuant to rules 114 and 115 of
the Committee’s rules of procedure, transmitted
to the State Party on 11 February 2022 (not
issued in document form)
Date of adoption of decision:
14 November 2025
Subject matter:
Deportation to Türkiye
Procedural issue:
Exhaustion of domestic remedies
Substantive issues:
Risk to life or risk of torture or other cruel,
inhuman or degrading treatment or punishment,
if deported to country of origin
(non-refoulement)
Article of the Convention:
3
1.1
The complainant is H.D., a national of Türkiye born in 1975. He applied for asylum
in Germany, but his application was rejected. He is facing deportation to Türkiye and submits
that his deportation would constitute a violation by the State Party of article 3 of the
Convention. The State Party has made the declaration pursuant to article 22 (1) of the
Convention on 19 October 2001. The complainant is represented by counsel.
1.2
On 11 February 2022, pursuant to article 114 of its rules of procedure, the Committee,
acting through its Rapporteur on new complaints and interim measures, requested the State
Party not to deport the complainant to Türkiye while the communication was being
considered by the Committee.
1.3
On 29 January 2024, pursuant to rule 115 (3) of its rules of procedure, the Committee,
acting through its Rapporteur on new complaints and interim measures, rejected the State
Party’s request that the admissibility of the communication be considered separately from
the merits. On 29 May 2025, the Committee also denied a request by the State Party to lift
the interim measures.
* Adopted by the Committee at its eighty-third session (10–28 November 2025).
** 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/83/D/1121/2022
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
13 January 2026
Original: English
CAT/C/83/D/1121/2022
2
GE.25-20334
Factual background
2.1
The complainant worked as a teacher in State schools in his country of origin from
1996 to 2016. He was dismissed on 1 September 2016 under Decree-Law No. 672, enacted
under the state of emergency declared after the failed coup attempt, and was subsequently
subjected to criminal proceedings.1 The complainant appealed against his dismissal before
the Inquiry Commission on the State of Emergency Measures, however, his appeal was
dismissed on the basis of his membership in a teachers’ union,2 his donations to different
organizations,3 and the criminal investigation against him.
2.2
After being dismissed, the complainant founded a private company in the security and
information technology sector with former colleagues. In February 2017, one of the seven
founders was arrested, but eventually released. Two others were then arrested and released.
However, they abandoned the business, and the complainant went on to work in the tourism
industry. On 9 September 2018, he was asked, over the telephone, by a police officer to
appear at the police station to be questioned.4 He agreed, but then he hid and left the country.
He crossed the river to Greece on 1 October 2018 and stayed until 10 October 2018 at a
location operated by a United Nations-system entity. 5 Then he went to Athens. On
6 December 2018, he travelled from Athens to Barcelona, Spain and then continued to
Frankfurt, Germany.
2.3
The complainant entered Germany on 7 December 2018 and applied for asylum on
2 January 2019. His asylum application was rejected on 22 November 2019 by the Federal
Office for Migration and Refugees for failure to demonstrate actual persecution by the
Turkish authorities. It found that the fact that he had not applied for asylum in Greece –
despite staying there initially for two months – or in Spain indicated that he did not fear
persecution, but that he was mainly motivated by obtaining a residence permit in Germany.
The Federal Office noted that the complainant’s brother-in-law and his former business
partners were not in detention and wondered why the complainant would fear detention.
2.4
The Federal Office did not find credible the complainant’s allegation that he had been
summoned by telephone. It questioned the reasons why the complainant would only be
summoned by telephone and why – after he did not obey the summons – nothing further had
happened. Given that the complainant had been represented by a lawyer in Türkiye and had
even contested the legal action against his dismissal, it would have been expected that if he
had not obeyed a summons, he would at least have received a written summons or, if he had
been of interest to the police, a search warrant would have been issued. That – as well as any
pending proceedings or charges – should also be reflected in the e-Devlet or Ulusal Yargı
Ağı Projesi (UYAP) systems, 6 and the complainant or his lawyer should have had no
difficulty in providing the relevant extracts.
2.5
The complainant appealed before the Augsburg Administrative Court, arguing that as
a member of the Gülen movement, a member of a teachers’ union – members of which had
been targeted for arrest by the Government – and a holder of an account at Bank Asya, he
would be at risk of arrest, imprisonment and persecution if returned to Türkiye. However, his
appeal was dismissed on 28 April 2020. As regards the call by the police on 9 September
1 The complainant refers to a police report of 21 June 2018 according to which he was to be
interrogated on the suspicion of being a member of a terrorist organization.
2 Aktif Egitim Sendikasi.
3 Kimse Yok Mu, a relief organization; the Feza education association; and the Istanbul Anadolu
education association. This organization and these associations, and Aktif Egitim Sendikasi, were
disbanded through emergency decrees.
4 The English translation of the decision of 22 November 2019 of the Federal Office for Migration and
Refugees mentions that it was the complainant who received that call, while the English translation of
the decision of 28 April 2020 of the Augsburg Administrative Court mentions that it was his brother
who received that call. The complainant did not make any reference to this fact in his communication.
5 No details were provided.
6 E-Devlet serves as the main public services portal offering Turkish citizens and residents digital
access to a broad range of services, including education, health and certain legal documentation.
UYAP, a judicial information system managed by the Ministry of Justice and accessible via e-Devlet,
allows parties to upload and access legal documents related to court cases.
CAT/C/83/D/1121/2022
GE.25-20334
3
2018, the court questioned why the police would contact the complainant’s brother instead
of the complainant himself. It then questioned why that request for questioning came about
two years after the complainant’s dismissal from the civil service, especially when one of his
business partners had been arrested in February 2017 for suspected links with the Gülen
movement. The complainant was not able to explain why he did not receive such a summons
for one and a half years, and was not able to explain further inconsistencies in his declarations
regarding the fate of his business partners. The complainant was also not able to prove that
he was the holder of an account at Bank Asya. The court noted that there was no close
temporal connection between his dismissal and flight from the country, given that he had
subsequently spent about two years in Türkiye. On 24 August 2020, the Higher
Administrative Court of Bavaria denied leave for appeal.
2.6
On 4 November 2020, the complainant submitted a new application for asylum,
stating that he had come into possession of various documents from the investigation file of
the Turkish police. In particular, he produced letters exchanged between the police and the
prosecutor between February and June 2018 and from April and May 2019, and a police
protocol dated 19 April 2019.
2.7
On 10 March 2021, the Federal Office for Migration and Refugees rejected the new
application, considering that the complainant should not fear persecution, despite the
submission of various documents from his investigation file. It held that the Turkish
authorities, when objectively considering the individual circumstances of the complainant’s
life in Türkiye, had no evidence whatsoever that would even remotely suffice to prove the
complainant’s membership in the Gülen movement. The Federal Office noted that the
complainant had worked in the civil service, not in an institution close to the Gülen movement.
Even if he had been dismissed from the civil service by decree in 2016, the dismissal did not
constitute a criterion that necessarily led to a criminal prosecution.
2.8
The Federal Office noted that the complainant had an account with Bank Asya.7
However, no payments had been made into this account after December 2013,8 only small
sums of money had been transferred, in 2010. Thus, the Turkish authorities could not use the
complainant’s account management as evidence for possible membership in an armed
terrorist organization in the context of an indictment.
2.9
The Federal Office then noted that the complainant had been able to prove with
documents that the Turkish authorities had attempted to summon and pick him up for a police
interrogation. However, no arrest order or pretrial detention order had been issued. For the
Federal Office, a police or public prosecutor’s interrogation was not an act of persecution
within the meaning of the Asylum Act, also considering that a significant number of cases
were closed without further criminal procedural measures.9 On the contrary, the documents
submitted indicated that the complainant was not threatened with prosecution in Türkiye. The
Federal Office noted that in cases where supporters of the Gülen movement were threatened
with detention or prosecution for membership of an armed terrorist organization, the
investigation files were restricted by the public prosecutor’s office by means of a court order
in accordance with section 153 (2) of the Code of Criminal Procedure, so as not to jeopardize
the purpose of the investigation. In the complainant’s case, contrary to the information
provided by the lawyer, no such order of restriction had been obtained, since such an order
could otherwise have been presented and, above all, the lawyer would not have had access to
the files. Conversely, it must be assumed that the preliminary proceedings had not revealed
any further indications of affiliation with the Gülen movement, and that the prerequisites for
7 The Federal Office mentioned that, in many cases, having an account with Bank Asya had been
enough to be charged with membership of the Gülen movement. However, many defendants were not
convicted if there was no other evidence.
8 The Federal Office mentioned that deposits with Bank Asya after 25 December 2013 – when Gülen-
affiliated prosecutors and judges had launched corruption investigations against the family of then-
Prime Minister Recep Tayyi Erdoğan and ministers in his Cabinet – was among the Turkish
authorities’ criteria to initiate a criminal prosecution as a suspected Gülenist.
9 The Federal Office noted that according to the Turkish Ministry of Justice and Ministry of the
Interior, investigations had been opened against approximately 500,000 persons since 2016, and over
30,000 suspected Gülen members were either serving legal prison sentences or were in pretrial
detention.
CAT/C/83/D/1121/2022
4
GE.25-20334
obtaining an order to restrict access pursuant to section 153 (2) of the Code of Criminal
Procedure did not exist. That, in turn meant for the Federal Office that the complainant was
not being threatened with imprisonment or prosecution. The documents produced showed
only that the police had attempted to locate him in 2019 for interrogation. The Federal Office
concluded that the complainant did not have reason to fear any further measures restricting
his freedom.
2.10
The decision was upheld on appeal by the Augsburg Administrative Court on 20 May
2021. For the court, the complainant could not invoke a fear of group persecution solely on
account of belonging to or being presumed as belonging to the Gülen movement because, on
the one hand, group persecution would require cases demonstrating a State persecution
programme – a certain “persecution density” that would justify the assumption of one’s own
persecution – and on the other, the characteristics according to which the Turkish authorities
designated persons as belonging to the Gülen movement were not sufficiently consistent to
draw the conclusion that every person who fulfilled that profile would be at risk of nationwide
persecution. Rather, it was to be assumed that a weighting of individual indications was
carried out by the Turkish authorities, without it being possible to make any assumptions in
individual cases.
2.11
The court accepted that the complainant fulfilled some criteria of the risk profile,
which, from the point of view of the Turkish authorities, made presumption of affiliation with
the Gülen movement possible. However, those criteria were not particularly serious, nor did
they lead to sufficiently concrete measures of persecution prior to his departure. Therefore,
after an assessment of the concrete individual case, the court concluded that it did not support
the assumption of a considerable probability of imminent persecution relevant to refugees. It
was also not evident that the complainant had, in the meantime, come to the attention of the
Turkish authorities and would therefore be persecuted upon his return. The court accepted
that the complainant had been dismissed under the emergency decree-laws, was a member of
the Gülen-affiliated teachers’ union and held an account at Bank Asya. It however did not
find it substantiated that the complainant was being sought by the Turkish authorities.
2.12
The court noted that, in 2017, according to the documents produced by the
complainant, the Istanbul Chief Public Prosecutor’s Office had instructed the Istanbul Police
Department to establish the personal details of the complainant and to check whether he had
connections to the Gülen movement. The Istanbul Police Department had ordered an
investigation into whether the complainant was using the ByLock application; 10 the
complainant declared before the German asylum authorities that he had not used the
application. In June 2018, the Istanbul Chief Public Prosecutor’s Office had asked the
Istanbul Police Department to interrogate the complainant. While the complainant stated at
his two hearings at the Federal Office that he had only been told on the phone that he should
present himself for questioning, he added to his statement in the oral hearing, to the effect
that the police had already indicated on the phone that there was a connection with gang
members. For the court, the inflation of the statement had rendered implausible the
complainant’s declarations in that regard.
2.13
The court further noted that the complainant had submitted a protocol and a letter from
the Turkish police, which showed that the police had gone to his flat in Istanbul on 20 April
2019 because of his summons for questioning and had asked a neighbour about his
whereabouts. However, the court expressed doubts about the authenticity of the documents
submitted, because they did not refer to questioning concerning the complainant’s
relationship to the Gülen movement; rather, they referred to the office for criminal matters
concerning intellectual property.
2.14
Lastly, the court also considered that the fact that the complainant had been unable to
produce either an indictment or an arrest or detention warrant, although he had applied for
and received access to his file through his Turkish lawyer, spoke against the Turkish
authorities’ interest in prosecuting him. The very fact that he had been granted access to his
criminal file spoke against an interest in prosecution, because persons against whom the
Turkish prosecution authorities had brought charges of terrorism owing to their proximity to
10 Bylock was a mobile phone application for encrypted, secure communication.
CAT/C/83/D/1121/2022
GE.25-20334
5
the Gülen movement were not usually given access to the files. Instead, a secrecy order was
issued.
2.15
The complainant did not appeal further before the Higher Administrative Court of
Bavaria owing to a lack of financial resources and because that court had rejected his previous
appeal, hence another appeal would have been without prospect of success.
Complaint
3.1
The complainant claims that his deportation to Türkiye would constitute a violation
of his rights under article 3 of the Convention.
3.2
The complainant points out that he was dismissed under that country’s state of
emergency decree-laws owing to presumed affiliation with a group that is designated as a
terrorist group by the Government of Türkiye. He argues that he was dismissed because he
had exercised his freedom of peaceful assembly by joining a teachers’ union and teachers’
associations and making donations to such legal entities. He further claims that a criminal
investigation had been initiated against him in Türkiye over his affiliation with the
Hizmet/Gülen movement and that he would therefore risk arrest and imprisonment if returned
to Türkiye. He notes that reports from international mechanisms, international and national
non-governmental organizations and bar associations have found that detainees and prisoners
arrested under the emergency decree laws have routinely been subjected to torture and ill-
treatment in Türkiye.11
State Party’s observations on admissibility and the merits
4.1
On 28 March 2022 and 28 March 2025, the State Party submitted its observations. It
contests the admissibility of the communication on the grounds that the complainant has not
exhausted domestic remedies: he did not file a constitutional complaint against the decision
of 24 August 2020 of the Higher Administrative Court of Bavaria and he did not apply to the
Higher Administrative Court of Bavaria for admission of appeal against the decision of
20 May 2021 of the Augsburg Administrative Court.
4.2
The State Party explains that even though the Federal Constitutional Court does not
act as a court of appeal reviewing the application of law by the instance courts, and its
competence is restricted to the examination of a missing or incorrect assessment of
fundamental rights, a constitutional complaint must necessarily be regarded as a further legal
remedy to be filed for exhaustion of the domestic remedies in this context. The Federal
Constitutional Court can also temporarily stay the deportation of a complainant by means of
a preliminary injunction. The State Party notes that the complainant was represented at all
stages of the proceedings by lawyers, who could – and presumably did – draw his attention
to this possibility. To plead ignorance of the available remedies at this stage is not acceptable,
as has been stated by the Committee.12 Also, an alleged error made by a privately retained
lawyer, who advised the complainant not to apply for judicial review, cannot normally be
attributed to a State Party and has not been considered a justification for failing to exhaust
domestic remedies.13
4.3
The State Party contests the complainant’s arguments that he had not appealed before
the Higher Administrative Court of Bavaria owing to a lack of financial means and of
prospects of success. It mentions that individuals who cannot afford court proceedings are
granted financial support in the form of legal aid covering not only court fees but also costs
for the legal assistance of a lawyer. It states that the Higher Administrative Court of Bavaria
11 See, for example, A/HRC/37/50/Add.1; A/HRC/WG.6/35/TUR/3, para. 26; Report to the Turkish
Government on the Visit to Türkiye carried out by the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 10 to 23 May 2017
(Strasbourg, 2020); European Commission, 2019 Turkey Report (Brussels, 2019); and Human Rights
Watch, “Turkey: events of 2019”, in Country Report 2020, available at https://www.hrw.org/world-
report/2020/country-chapters/turkey.
12 R. v. France, communication No. 52/1996, paras. 6.3 and 7.2.
13 R.S.A.N. v. Canada (CAT/C/37/D/284/2006), para. 6.4.
CAT/C/83/D/1121/2022
6
GE.25-20334
would have considered the new evidence produced by the complainant in his second set of
proceedings, so the outcome could not be anticipated.
4.4
On the merits, the State Party recognizes that, even many years after the attempted
coup, an individual considered by the Turkish authorities to belong to the Gülen movement
can still expect to face criminal prosecution in Türkiye. However, the Turkish authorities do
not follow a clear system when weighing individual indications, and it is not always evident
from the outside whether or not, or why, an individual will be categorized as a member and
whether or not an individual can be expected to face prosecution.
4.5
The State Party considers that the complainant has not been able to provide sufficient
evidence, either in the domestic asylum proceedings or before the Committee, that he himself
is actually at risk of arbitrary detention because of his alleged membership of the Gülen
movement. He did not produce an indictment, a detention order or any other proof of pending
prosecutions against him, although his lawyers had access to his file, which in itself is an
indication that there is no intention on the part of the authorities to pursue proceedings against
him. Nor have the Turkish authorities filed an extradition request with the German
authorities.14
4.6
The State Party submits that the complainant was able to live freely in Türkiye right
up until his departure. While he was dismissed from his post as a teacher due to his union
membership, he has not alleged any other forms of pressure. He has not even been
interrogated. While the complainant alleges that the police came to interrogate him, the
documents produced as proof in the proceedings before the Augsburg Administrative Court
related, however, to the office for crimes relating to intellectual property – hardly relevant in
the context of the present case. The Augsburg Administrative Court therefore did not accept
the complainant’s statement that he had been persecuted by the police for his affiliation with
the Gülen movement.
4.7
For the State Party, the complainant bases the communication on a purely hypothetical
risk of criminal prosecution or detention by the Turkish authorities. He has failed to make
the case that those authorities actually have an interest in him or indeed are aware of his
alleged fulfilment of criteria categorizing him as a Gülen supporter. In any event, detention
alone falls clearly outside the scope of article 3 of the Convention, as observed regularly by
the Committee.15 It also notes that the complainant fails to provide sufficient evidence that
members of the Gülen movement who have been detained are in fact being systematically
tortured. While non-governmental organizations and human rights lawyers have been
reporting about cases of ill-treatment against alleged members of the Gülen movement,
especially in the Kurdish-dominated southeast of Türkiye, there are no indications to suggest
that torture or ill-treatment is applied systematically to Gülen supporters.
Complainant’s comments on the State Party’s observations
5.1
On 9 June 2023 and 12 May 2025, the complainant submitted comments, in which he
contested the State Party’s arguments. As regards the alleged inadmissibility of his
communication, he insists that since the Higher Administrative Court of Bavaria had already
upheld the assertion by the Federal Office for Migration and Refugees that Türkiye was a
safe country for him, such an appeal did not promise any remedy.
5.2
As to the possibility of lodging a constitutional complaint, the complainant submits
that in none of the domestic decisions was he told of or reminded about this possibility or
requirement. He should not be expected to know of and exercise such a right or requirement
because he does not speak German and does not know the German legal system; furthermore,
he has spent all his savings during administrative proceedings. He recalls that if the State
Party argues failure to exhaust domestic remedies, it must prove that there was a remedy
available that was effective in theory and practice, that is, that the remedy was accessible,
capable of providing redress for the complaint, and offered a reasonable prospect of success.
14 Unlike in Erdoğan v. Morocco (CAT/C/66/D/827/2017), Onder v. Morocco (CAT/C/66/D/845/2017)
and Ayden v. Morocco (CAT/C/66/D/846/2017).
15 A.A. v. Switzerland (CAT/C/38/D/268/2005), para. 8.5. See also L.J.R. v. Australia
(CAT/C/41/D/316/2007).
CAT/C/83/D/1121/2022
GE.25-20334
7
5.3
The complainant submits that a State Party should prove with examples and statistics
that a particular domestic remedy is effective in theory and practice. This should not be the
general effectiveness of the remedy, but its effectiveness with regard to circumstances similar
to the case at stake. The complainant therefore invites the State Party to provide information
on how many individual complaints have been filed before the Federal Constitutional Court
against the deportation of asylum-seekers, how many were found to be admissible, how many
resulted in a decision finding a violation and in how many an injunction to stay the
deportation was ordered.
5.4
The complainant notes that filing a constitutional complaint – which is an
extraordinary remedy – does not automatically halt a deportation; the person must apply
separately for an interim injunction, which is granted only in exceptional circumstances
where non-suspension would cause irreparable harm.16 The Federal Constitutional Court
rejects or denies most constitutional complaints without a full review: over 98 per cent of
complaints are not successful.17 This is also reflected in asylum cases, where only a handful
of complaints have been admitted or decided in favour of applicants.18 There are even fewer
chances for asylum-seekers, as their cases often raise no new constitutional issue or are
deemed inadmissible on procedural grounds. The court’s own jurisprudence allows it to reject
complaints without explanation, and it frequently does so in asylum matters, leaving
applicants with no relief and often no reasoning for the refusal.
5.5
The complainant submits that to even have a chance, an asylum-seeker’s
constitutional complaint must be drafted in technically precise legal language, identifying
specific constitutional rights violations and articulating them at a level comparable to
scholarly pleadings. This demands high-level legal German skills and familiarity with
constitutional law doctrines that laypersons or non-German speakers simply do not possess.
Although in theory one may apply for legal aid for a constitutional case, in practice such aid
is rarely granted. The Constitutional Court has held that legal aid in a complaint may be
provided only if “absolutely necessary”, essentially only if the person cannot present his or
her case at all and the complaint has a sufficient chance of success.19
5.6
As to the merits, the complainant refers to the case of a Turkish national deported
from Germany who was arrested in the airport and put in pretrial detention. The complainant
states that he faces the same risk. He then refers to official statistics from July 2024, according
to which more than 700,000 people have been investigated by the police on terrorism charges
since the 2016 coup attempt as a result of their affiliation with the Gülen movement.20 Of
those, more than 330,000 were taken into custody by the police and at least 100,000 were
remanded to pretrial detention.21 These arrests have been made for similar reasons, which the
Working Group on Arbitrary Detention has found to be arbitrary.22
5.7
Lastly, the complainant invokes systemic issues in Turkish prisons, such as
overcrowding, inadequate healthcare and the mistreatment of detainees, especially political
prisoners.
16 See https://asylumineurope.org/reports/country/germany/asylum-procedure/procedures/regular-
procedure/#:~:text=The%20short%20deadlines%20in%20these.
17 See https://www.lto.de/recht/justiz/j/bverfg-2021-begruendungen-nichtannahmen-jahrestatistik-
2021#:~:text=Insgesamt%20hat%20das%20BVerfG%20im,vergangenen%20zehn%20Jahre%C2%A
0von%201%2C85%20Prozent (in German).
18 The complainant provides no reference.
19 See
https://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2023/02/rk20230207_2bv
r087222.html#:~:text=2 (in German).
20 See https://turkishminute.com/2024/07/12/turkey-investigate-more-than-700k-people-over-gulen-
link-failed-coup-minister/.
21 See https://www.trthaber.com/haber/gundem/bakan-soylu-fetoden-332-bin-884-kisi-gozaltina-alindi-
692917.html (in Turkish).
22 The complainant cites several decisions.
CAT/C/83/D/1121/2022
8
GE.25-20334
State Party’s additional observations
6.1
On 7 July 2025, the State Party provided further observations. It acknowledges that,
as the complainant alleges, no guidance on available legal remedies was given regarding the
possibility of lodging a constitutional complaint. The constitutional complaint is an
extraordinary legal remedy, hence no obligation to provide such guidance exists.
6.2
The State Party clarifies that applicants lodging a constitutional complaint do not
always have to cite specific provisions of the Basic Law. Rather, it can be sufficient to assert
a violation of a constitutionally protected right in substance by presenting the relevant facts
and grievances. In addition, the complainant was represented by counsel at all stages of the
proceedings and could therefore have obtained the necessary expertise at any time. The
ignorance of the complainant’s counsel cannot be at the expense of the State Party.
6.3
The State Party mentions that the Federal Constitutional Court provides extensive
information on how to file a constitutional complaint, on its website, 23 and a detailed
information sheet on how to lodge a constitutional complaint is available in English. 24
However, neither the Federal Constitutional Court nor the federal Government keep statistics
on the chances of success of comparable cases at the Federal Constitutional Court. The
majority of Federal Constitutional Court decisions are not published, and this also includes
decisions granting asylum.25
6.4
The State Party refers to the extensive jurisprudence of the European Court of Human
Rights, in which there is not the slightest doubt that complainants in Germany must have
filed a constitutional complaint before an individual application to the European Court is
admissible. 26 Similarly, United Nations treaty bodies have repeatedly considered the
constitutional complaint to be an effective remedy that must be exhausted in order for an
individual complaint before the respective treaty body to be admissible. 27 Accordingly,
constitutional complaints to the Federal Constitutional Court are both effective and
available.28
6.5
The State Party then submits that the complainant’s assertion that there is no help for
people who do not speak German in the asylum procedure is false. Applicants are entitled to
interpreting services in official asylum proceedings under section 17 (1) of the Asylum Act.
Additionally, on delivery of the asylum decision, applicants who have not appointed an
authorized representative are provided with a translation of the content of the decision and
guidance on available legal remedies. Applicants are also entitled to interpreting services in
judicial proceedings.
Issues and proceedings before the Committee
Consideration of admissibility
7.1
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
23 See
https://www.bundesverfassungsgericht.de/DE/Verfassungsbeschwerde/MeineVerfassungsbeschwerde
/WieErhebeIchEineVerfassungsbeschwerde/wieErhebeIchEineVerfassungsbeschwerde_node.html
(in German).
24 See
https://www.bundesverfassungsgericht.de/SharedDocs/Downloads/EN/Merkblatt.html?nn=68508.
25 The State Party gives the example of three recent successful constitutional complaints lodged by
rejected asylum-seekers.
26 The State Party cites several cases, for example, Roth v. Germany, Application No. 31576/19, Third
Section Decision, 5 July 2022, para. 14; and Perelman and Perelman v. Germany, Application
No. 32745/17, Fifth Section Decision, 13 June 2017, para. 21.
27 See, for example, Human Rights Committee, M.O. v. Germany (CCPR/C/140/D/3232/2018),
para. 7.5.; Committee on the Rights of the Child, Sacchi et al. v. Germany (CRC/C/88/D/107/2019),
para. 9.17; Committee on the Rights of the Child, D.C. v. Germany (CRC/C/83/D/60/2018),
para. 6.6.; and Human Rights Committee, P.L. v. Germany (CCPR/C/79/D/1003/2001), paras. 6.4. ff.
28 European Court of Human Rights, Alternative für Deutschland (AFD) v. Germany, Application
No. 57939/18, Decision, 11 June 2019, paras. 22 ff.
CAT/C/83/D/1121/2022
GE.25-20334
9
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.
7.2
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. This rule does not apply where it
has been established that the application of the remedies has been unreasonably prolonged or
is unlikely to bring effective relief to the complainant.29
7.3
In this regard, the Committee notes the State Party’s argument that the complainant
did not file a constitutional complaint against the decision of 24 August 2020 of the Higher
Administrative Court of Bavaria and that he did not apply to the Higher Administrative Court
of Bavaria for a leave to appeal against the decision of 20 May 2021 of the Augsburg
Administrative Court. It also notes the complainant’s arguments that he was not informed by
the domestic courts about the possibility to lodge a complaint before the constitutional court
and that since his request to leave for appeal in the first set of asylum proceedings was denied
because the Higher Administrative Court of Bavaria had already upheld the assertion by the
Federal Office for Migration and Refugees that Türkiye was a safe country for him, a new
request to leave for appeal in the second asylum application would have had no chances of
success. Moreover, he did not have the financial resources to lodge this new request for leave
to appeal.
7.4
As to the complainant’s failure to seek leave for appeal in the second set of
proceedings, the Committee notes the State Party’s argument that individuals who cannot
afford proceedings are granted financial support in the form of legal aid covering not only
court fees but also costs for the legal assistance of a lawyer and that the Higher Administrative
Court of Bavaria would have considered the new evidence produced by the complainant in
his second set of proceedings, so the outcome could not be anticipated. The Committee notes
that the complainant does not contest these two arguments: he has not produced any proof of
lack of financial resources or of an attempt to have sought legal aid. It also notes that the
complainant has introduced his second asylum application on the basis of new extensive
documentary evidence in connection to proceedings against him and in support of his
allegation of persecution by the Turkish authorities. Therefore, the Committee considers that
a request for leave to appeal would have allowed the Higher Administrative Court of Bavaria
to examine this new evidence.
7.5
The Committee also observes that the complainant has not raised the argument that a
request for leave to appeal is not an effective remedy. He merely asserts that following such
a procedure for a second time would have not brought him a different outcome. In this
connection, the Committee recalls that the mere fact of doubting the effectiveness of a
remedy does not absolve the complainant from the obligation to exhaust.30 Accordingly, the
Committee considers that, in the circumstances of the present case and in the absence of any
arguments as to the ineffectiveness of the leave to appeal in asylum cases, the complainant
has not exhausted all available domestic remedies since he has not applied to the Higher
Administrative Court of Bavaria for leave to appeal against the decision of 20 May 2021 of
the Augsburg Administrative Court.
7.6
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.
7.7
In the light of this finding, the Committee does not deem it necessary to examine the
other ground of inadmissibility raised by the State Party.
29 See, for example, E.Y. v. Canada, (CAT/C/43/D/307/2006/Rev.1), para. 9.2. See also Committee
against Torture, general comment No. 4 (2017), para. 34.
30 Thu Aung v. Canada (CAT/C/36/D/273/2005), para. 6.3; S.S. and P.S. v. Canada
(CAT/C/62/D/702/2015), para. 6.5; and S.S. v. Canada (CAT/C/62/D/715/2015), para. 6.4.
CAT/C/83/D/1121/2022
10
GE.25-20334
8.
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.