Committee against Torture
Decision adopted by the Committee under article 22 of the Convention, concerning Communication No. 857/2017 * , **
Communication submitted by:Cevdet Ayaz (represented by counsels, Nikola Kovačević and Ana Trkulja, Belgrade Centre for Human Rights)
Alleged victim:The complainant
Date of complaint:7 December 2017 (initial submission)
Document references:Decision taken pursuant to rule 115 of the Committee’s rules of procedure, transmitted to the State party on 11 December 2017 (not issued in document form)
Date of present decision:2 August 2019
Subject matter:Risk of torture in the event of deportation to country of origin (non-refoulement); prevention of torture
Substantive issue:Deportation of the complainant from Serbia to Turkey
Articles of the Convention:3 and 15
1.1The complainant is Cevdet Ayaz, a national of Turkey of Kurdish origin born in 1973. At the time of submission of the communication, the complainant was at risk of extradition to Turkey. He claimed that his extradition would amount to a violation, by Serbia, of article 3, in conjunction with article 15, of the Convention. Serbia made the declaration under article 22 of the Convention on 12 March 2001. The complainant is represented by counsel.
1.2On 11 December 2017, the Committee, acting through its Rapporteur on new complaints and interim measures, requested the State party to refrain from expelling the complainant to Turkey while it considered his complaint. On 5 November 2018, the State party advised the Committee that its request for interim measures was not brought to the attention of the Ministry of Justice of Serbia in time to prevent the complainant’s extradition, as the request was delivered on 18 December 2018, while the decision on the extradition of the complainant was rendered on 15 December 2018.
The facts as presented by the complainant
2.1The complainant has been a Kurdish political activist since the late 1980s. After he turned 18, he became a member of the People’s Labour Party and became close to the president of the Diyarbakir branch of the party, Vedet Aydin, who was killed by a special gendarmerie unit on 7 July 1991. Later that year, owing to increasing violence in south-eastern Turkey and mass human rights violations committed against the Kurdish minority under the pretext of anti-terror operations, the complainant decided to move to Iraq. There, he lived in the city of Erbil and became a member of the Kurdish political party YEKBUN, which ceased to exist in 1994. He remained in Iraq until 1997, when the situation in Turkey improved slightly. The complainant claims to have never been involved in any military operation, or ever used any kind of weapon or other violent means for achieving his political goals. He has never been a supporter of groups prone to violence (such as the Kurdistan Workers’ Party (PKK)) or a member of any political party that was declared illegal or terrorist by the Government of Turkey.
2.2Upon his return to Turkey, the complainant led a peaceful life in Diyarbakir, where he opened a shop selling office supplies. He was not politically active and in 2000, he went to Malatya for the mandatory military service in the Turkish army. On 6 April 2001, when the complainant was returning from leave to his military base in Malatya, his bus was stopped by gendarmes and anti-terror forces and the complainant was taken to the police station in Elazig, where he was kept overnight. He was not informed of the reasons for his detention and was not given access to a lawyer or allowed to inform his family or anyone else of his whereabouts. The following day, he was taken to the Anti-Terror Department in Diyarbakir where he was held incommunicado until 18 April 2001.
2.3The treatment to which the complainant was submitted during his incommunicado detention between 6 and 18 April 2001 included being punched, slapped, kicked and beaten by police batons; being kept blindfolded most of the time during the detention; being subjected to “Palestinian hanging”; being subjected to electric shocks applied through genitals and nipples while he was held on the ground; being hosed with high pressure cold water; being constantly threatened with execution or serious injury to him and his family; and being verbally abused because of his Kurdish origins.
2.4After days of torture, the complainant was forced to sign confession papers while blindfolded, in which, as he later found out, he said that he was a member and one of the leaders of the Revolutionary Party of Kurdistan (PSK). After signing the confession, the complainant was taken to a medical unit where he told the doctor that he had been tortured, however the doctor, in presence of the police officers who had tortured him, told him that he was fine and told the officers to take him away. The complainant notes that he has never heard of such a party as the Revolutionary Party of Kurdistan and that it does not exist. On 18 April 2001, the complainant was brought before the Diyarbakir court, where he was for the first time allowed to see an attorney. At the hearing, the complainant told the judge that he was tortured and forced to sign a confession. However, neither the judge nor the prosecutor asked him any questions about the torture and the court ordered that he should be kept in pretrial detention. The complainant was released after 10 months in pretrial detention; however, the criminal case against him and 36 other persons associated with his party continued.
2.5In 2006, the European Court of Human Rights examined the complainant’s case and found a violation of the right to liberty and security under article 5 of the European Convention on Human Rights (unlawful and arbitrary detention in Diyarbakir police headquarters and lack of access to a lawyer and judicial examination of his detention).
2.6On 27 November 2012, after 11 years of investigation, the Diyarbakir court sentenced the complainant and five other co-defendants to 15 years’ imprisonment for participation in an armed organization, namely the Revolutionary Party of Kurdistan (PSK), which, as stated in the court decision, aims to destroy the present system of organization of the Turkish State and establish in its place an independent socialist Kurdish State (to be called Kurdistan), covering the region of eastern and south-eastern Anatolia. The trial consisted of only a few evidentiary hearings, during which the complainant was absent as he was not summoned to appear. He was not present during the sentencing but was informed of the verdict by his lawyer.
2.7The complainant submitted an appeal to the Supreme Court of Turkey stating all the violations he had been subject to during the pretrial investigation (torture, extortion of confession, deprivation of legal representation). On 6 April 2016, the Supreme Court rejected his appeal. After this decision, the complainant fled Turkey and travelled through several countries trying to reach Germany (Azerbaijan, the Islamic Republic of Iran, Montenegro, the Russian Federation and Ukraine).
2.8The complainant was arrested on 30 November 2016 on the border crossing between Serbia and Bosnia and Herzegovina on the basis of an international arrest warrant issued in Turkey. On the same day, he was questioned by a judge at the higher court in Šabac in the presence of a State-appointed lawyer. However, since the complainant did not know Serbian, the court invited a local merchant who had business connections in Turkey to translate for him. This person did not speak Turkish well and during the court hearing had to consult over the phone with his associate in Turkey who in turn had to rephrase the judge’s questions to the complainant. For the same reason, the State appointed lawyer was not able to provide confidential counselling for the complainant. The higher court in Šabac decided to keep the complainant in detention pending his extradition.
2.9On 2 December 2016, the complainant appealed against his detention. On 6 December 2016, the higher court in Šabac denied his appeal. On 7 December 2016, the Turkish authorities submitted a request to the Ministry of Justice of Serbia for the extradition of the complainant. On 19 January 2017, the higher court in Šabac decided that all prerequisites for the complainant’s removal to Turkey were met in line with articles 7 and 16 of the Law on Mutual Assistance in Criminal Matters. There was no rigorous scrutiny by the higher court in Šabac in examining the risks of treatment contrary to article 3 of the Convention. The decision was rendered based on documents received from Turkey and related to the complainant’s case, which were not properly translated into Serbian and, as a result, were unreadable. The translation was done in a mixture of the Serbian and Macedonian languages in both the Cyrillic and Latin alphabets. The same translated documents were used throughout the extradition procedure.
2.10On 3 February 2017, the complainant appealed the decision to extradite him to the appellate court in Novi Sad. On 23 February 2017, the court quashed the decision of the higher court in Šabac on the grounds that it did not provide for adequate interpretation during the proceedings and did not establish for which criminal offence the complainant had been convicted in Turkey.
2.11On 17 March 2017, the higher court in Šabac rendered an identical decision without proper questioning of the complainant, without properly translating the documents received from Turkey and without properly examining the risks of refoulement. The complainant again appealed this decision on 22 March 2017 to the appellate court in Novi Sad.
2.12On 12 April 2017, the Appellate Court in Novi Sad again conducted a hearing during which the complainant stated that he was a victim of torture and the criminal case against him was of a political nature. On the same day, the Appellate Court in Novi Sad again ordered the higher court in Šabac to properly question the complainant and to provide a correct translation of the documents received from Turkey.
2.13On 12 October 2017, for the third time, the higher court in Šabac decided there were no obstacles to the extradition of the complainant to Turkey. The complainant again appealed this decision on 20 October 2017 to the appellate court in Novi Sad.
2.14A hearing before the appellate court in Novi Sad was scheduled for 22 November 2017. However, on 9 November, the complainant’s lawyer received a phone call from one of the judges of the appellate court, who informed her that the hearing had been rescheduled for 15 November 2017. The judge also said that the change had been requested by the Ministry of Justice who insisted that the case must be resolved before 30 November, because extradition detention could not last longer than one year. This was necessary so that the Minister of Justice could render the final decision on the extradition in a timely manner.
2.15On 15 November 2017, the appellate court in Novi Sad again quashed the decision of the higher court in Šabac and instructed it to hold a hearing in accordance with the Code of Criminal Procedure, and to translate the documentation received from Turkey, which would make it possible to determine the specific criminal offence the complainant was accused of and for which he had been sentenced.
2.16On 22 November 2017, the United Nations High Commissioner for Refugees intervened, reminding the State party’s authorities of the ongoing asylum proceedings and the importance of examining the complainant’s claims of persecution on the merits.
2.17On 30 November 2017, the higher court in Šabac held a hearing at which the complainant’s lawyer reminded the court that the complainant had applied for asylum in Serbia and due to the expiry of the maximum period of pretrial detention allowed (one year expired on that day), he should be released and referred to the asylum camp in Banja Koviljača. After the hearing, the complainant and his lawyer were notified that a decision repealing the detention would be delivered to the correctional institution in Šabac, where the complainant was being held in detention, by the end of that day, after which the complainant would be released.
2.18However, later on that same day, while his lawyer waited outside the prison gates for the complainant to be released, the police secretly transferred the complainant to the detention centre for foreigners in Padinska Skela. After learning about this from the prison guards, the complainant’s lawyer arrived at 12.30 a.m. on 1 December at the detention centre for foreigners and asked to be given the decision on the complainant’s detention. Her request was denied. At 9 a.m. on 1 December 2017, the lawyer received the decision on extradition by the higher court in Šabac, rendered on the same day, stating that all prerequisites for the complainant’s removal to Turkey were met in line with articles 7 and 16 of the Law on Mutual Assistance in Criminal Matters.
2.19Later on 1 December 2017, the complainant’s lawyer again went to the detention centre to visit the complainant and to obtain the decision on his detention. However, she was only allowed to see the letter signed by the president of the higher court in Šabac, in which the president informed the detention centre for foreigners that the complainant’s detention had been repealed and replaced with another measure: prohibition of leaving his temporary place of residence in Banja Koviljača. In the same letter, the court president stated that because the Banja Koviljača asylum centre was full, it was necessary to detain the complainant in Padinska Skela. The complainant’s lawyer was not allowed to make a copy of the letter. The manager of the detention centre informed the complainant’s lawyer that the complainant was detained there on the basis of the letter. According to the Law on Foreigners, the detention centre for foreigners is an institution for the accommodation of foreigners who are not allowed to enter the country or who are to be expelled from the country.
2.20On 4 December 2017, the complainant submitted a request for interim measures to the European Court of Human Rights, which was denied on 6 December 2017.
3.At the time of submission of the present communication, the complainant claimed that his extradition to Turkey would constitute a violation of his rights under article 3 of the Convention, since in Turkey he had been sentenced to 15 years in prison for a politically motivated crime based on a confession extorted under torture. He claimed that the risk of torture and ill-treatment was even greater in Turkey after the attempted military coup in July 2016, as those who were believed to be political opponents of the current regime had been subjected to torture and other ill-treatment and to incommunicado detention, and held in inhumane conditions in overcrowded prisons.
Additional information from the complainant
4.1On 19 June 2018, the complainant submitted additional information with regard to his legal proceedings in Serbia and his asylum procedure and extradition to Turkey. He provided translated copies of a number of procedural documents. The complainant also claimed that his extradition would violate article 3, in conjunction with article 15, of the Convention, because the Serbian authorities had failed to take into consideration that his sentence in Turkey was based on a confession extorted under torture.
4.2On 4 December 2018, the complainant appealed the decision of 1 December of the higher court in Šabac to the appellate court in Novi Sad. In his appeal, the complainant reiterated that owing to a lack of appropriate translation, the first instance court could not establish the facts of the case against him properly and completely, that he would be subject to prosecution in Turkey on political grounds and that his asylum proceedings were still ongoing, and asked the appellate court to return his case for examination to the first instance court.
4.3On 8 December 2018, the Office of the Public Prosecutor in Novi Sad submitted its own motion to the appellate court in Novi Sad, in which it stated that even though the first instance court had secured an adequate interpreter for the most recent court hearing, it had not acted in line with the instructions of the second instance court related to translation of the documents submitted by Turkey, and it therefore proposed to quash the decision of the first instance court and send the case back to the higher court in Šabac.
4.4On 14 December 2017, the appellate court in Novi Sad held an appeal hearing, during which the complainant’s lawyer submitted the Committee’s note verbale, along with its Serbian translation, requesting the State party to refrain from removing the complainant to Turkey. However, the appellate court upheld the decision of the higher court in Šabac to extradite the complainant. In its decision, the appellate court stated that despite the Committee’s request to refrain from removing the complainant to Turkey, the extradition in this case was regulated by the provisions of article 3 (1) of the European Convention on Extradition as well as the provisions of article 3 (1) of the treaty between Serbia and Turkey on extradition. The court held that extradition would not be allowed if the person whose extradition was requested enjoyed asylum on the territory of the requested State and that in accordance with article 7 (4) of the Law on Mutual Assistance in Criminal Matters, it was up to the Minister of Justice of Serbia and not the courts to decide if extradition had been requested for a political offence or not.
4.5On 15 December 2017, the Minister of Justice rendered a decision stating that extradition of the complainant to Turkey was permitted under the Law on Mutual Assistance in Criminal Matters and that the courts had established that the offence for which the extradition had been requested represented a criminal offence also under Serbian legislation, namely conspiracy for unconstitutional activity. The complainant notes that the Minister of Justice did not consider the issue of whether the offence in question was a political crime and whether the complainant was at risk of torture, or had been tortured and convicted on the basis of a statement tainted by torture.
4.6By letter of 14 December 2017, the complainant’s lawyer informed the Ministry of the Interior, the Police Directorate and the border police administration that on 11 December 2017 the Committee had issued interim measures in the complainant’s case, and that removing the complainant to Turkey would constitute a violation of the State party’s international obligations. The same letter was submitted to the Ministry of Justice on 18 December 2017. Despite this, the complainant was extradited to Turkey on the night of 25 December 2017.
4.7With regard to his asylum proceedings, the complainant submits that on 26 January 2017, he expressed his intention to seek asylum in the State party. On 9 May 2017, he submitted his formal asylum request and an asylum interview was conducted on 2 August 2017. During his interview, the complainant gave a detailed account of his political activity prior to his arrest, his arrest and torture in 2011, his sentencing in Turkey and his escape from Turkey. He also submitted copies of correctly translated documents from the Turkish case against him, and a legal analysis of them, which showed that the complainant’s confession was the sole evidence used for his conviction. The complainant also submitted the decision by the European Court of Human Rights on his case and reports by various international organizations between 1989 and 2017, which showed that torture had been widely used by the Turkish authorities during that period.
4.8The complainant requested the Asylum Office to examine his application on the merits without automatic application of the “safe third country” concept, so that the authorities could examine the risk of torture in his country of origin. However, on 22 September 2017, the Asylum Office refused the complainant’s asylum application stating that Montenegro should be responsible for his asylum. The Asylum Office held that since Montenegro, as the State from which the asylum seeker had entered Serbia, was on the list of safe third countries, based on a decision of the Government of Serbia of 17 August 2009, and that it was consequently a State that upheld the refugee protection principles contained in the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, there were valid grounds for dismissal of the asylum application based on article 33 (1.6) of the Law on Asylum.
4.9On an unknown date, the complainant appealed the decision of the Asylum Office to the Asylum Commission. On 22 November 2017, the Asylum Commission denied the appeal on the grounds that Montenegro had signed and ratified numerous treaties on human rights and had been implementing them in practice, achieving international standards, which meant that it was a safe third country for the complainant.
4.10The complainant submits that he was extradited to Turkey before he was able to appeal the decision of the Asylum Commission to the administrative court. The domestic law allows for an appeal to be submitted to an administrative court within 30 days of the date of receipt of the decision of the Commission. However, the complainant was extradited 14 days after the decision was delivered to his attorney.
4.11The complainant claims that despite its reasoning, the Asylum Office knew that he would not be deported to Montenegro. The Asylum Office therefore entrusted the extradition authorities to properly assess the risk of ill-treatment in Turkey before the complainant’s extradition, while the courts and the Ministry of Justice have not even carried out an adequate translation of the complainant’s documents received from Turkey.
4.12The complainant further argues that reports and findings by the Council of Europe and various special procedures mechanisms and treaty bodies show a consistent pattern of gross, flagrant or mass violations of human rights in Turkey over the past 30 years. The complainant submits that the country of origin information, combined with his personal circumstances, namely his ethnicity, political views and past torture, should have been considered by both the asylum and extradition authorities of the State party as substantial grounds for believing that he would be exposed to foreseeable, personal, present and real risk of torture and ill-treatment if extradited to Turkey.
State party’s observations on the merits
5.1On 5 November 2018, the State party submitted its observations on the merits. The State party notes that on 5 December 2016, the Ministry of Justice informed the Government of Turkey of the complainant’s arrest, based on the active international warrant of the International Criminal Police Organization (INTERPOL), and asked for an extradition request to be submitted along with the required documentation. On 29 December 2016, the Ministry of Justice received the request for extradition along with the required documents translated into Serbian. The following day, the documents were forwarded to the higher court in Šabac (with supplements on 6 and 9 January 2017). On 9 May 2017, the court returned the documents to the Ministry of Justice on the grounds of “incomprehensible translation”. On 12 May 2017, the Ministry of Justice submitted the returned documents to a certified Turkish translator and the new translation was submitted to the court in Šabac on 21 July 2017. In a letter dated 15 August 2017, the court in Šabac requested clarification regarding the complainant’s criminal offence. The information requested was provided to the court by the Ministry of Justice on 4 and 5 October 2017. On 27 November 2017, the United Nations High Commissioner for Refugees intervened and requested that the complainant not be extradited before the authorities made final decision on his asylum request. This intervention was forwarded to the court in Šabac on 6 December 2017. On 1 December 2017, the Ministry of Justice received the decision of the Asylum Commission denying the complainant’s appeal. On 15 December 2017, the court in Šabac forwarded to the Ministry of Justice the final decision in the complainant’s extradition case, confirmed by the appellate court in Novi Sad on 14 December 2017. On 15 December 2017, the Minister of Justice issued a decision allowing the extradition of the complainant to Turkey. On 18 December 2017, the decision was served to the Belgrade office of INTERPOL. On the same day, the Ministry of Justice received, through the Permanent Mission of Serbia to the United Nations Office at Geneva, the documents related to the complainant’s individual communication.
5.2The State party rejects the complainant’s claim that there has been no adequate translation from Turkish to Serbian of the documents received from Turkey for over a year. It notes that based on the court’s request for a revised translation of the documents provided, the Ministry of Justice engaged a local certified Turkish translator.
5.3The State party further notes that in accordance with the European Convention on Extradition or any other multilateral or bilateral extradition agreements, there is no requirement to translate an entire case file into the language of a State party which is being requested to extradite an individual. Only the documents mentioned in article 12 of the European Convention on Extradition, to which both Serbia and Turkey are parties, must be attached to the request for extradition, as no other State is authorized to evaluate and examine legal proceedings conducted in another state.
5.4The State party rejects the complainant’s claim that it breached the principle of division of authority by telling the courts to complete the proceedings before the one-year maximum term for detention of the complainant expired. It notes that in accordance with the Code of Criminal Procedure of Serbia, there are other measures than detention to secure the presence of a person in extradition proceedings.
5.5With regard to Turkey and its violation of human rights, the State party submits that it included Turkey in the list of safe countries of origin and safe third countries. It further notes that Croatia and Bulgaria also consider Turkey to be a safe country of origin and it has been proposed to put Turkey on the joint list of the European Union of safe countries of origin. Moreover, the State party explicitly conditioned the extradition in its decision on the obligation of Turkey to respect all the human rights and freedoms of the complainant, as provided under the appropriate international conventions.
5.6The State party submits that the Ministry of the Interior is the national authority in charge of extradition procedures and the Ministry of Justice usually receives information about instances of extradition only after their completion.
5.7The State party notes that with regard to the complainant’s asylum proceedings, the decision of the Asylum Commission is not considered to be final and can be further appealed.
5.8As to the complainant’s claim that the State party ignored the request for interim measures by the Committee, the State party notes that it only learned about the request on 18 December 2017, i.e. three days after the decision on extradition had already been taken. A copy of the Committee’s letter was submitted, along with a letter by representatives of the Belgrade Centre for Human Rights, who did not submit proof of being authorized to represent the complainant before the authorities of the State party.
Complainant’s comments on the State party’s observations on the merits
6.1On 4 January 2019, the complainant submitted his comments on the State party’s observations on the merits. He emphasizes that the State party has ignored the invitations of the Committee to submit its observations on the admissibility and merits of the complaint for almost a year, which, according to the complainant, reflects the Government’s attitude towards its obligations arising from the Convention.
6.2The complainant notes that the State party’s submission contains only observations by the Ministry of Justice, but does not contain information from other State authorities or what led to a violation of the principle of non-refoulement enshrined in article 3, in conjunction with article 15, of the Convention. He further notes that this shows that the State party does not have an established mechanism to communicate properly with the United Nations treaty bodies. The complainant requests that the Committee examine the lack of a State mechanism or body consisting of trained professionals who would be in charge of communicating with the treaty bodies, because establishing such a body would prevent unjustified postponements in individual procedures and problems in communication between different authorities in the State party.
6.3The complainant reiterates his position that he was extradited without the courts having properly translated the documents received from Turkey. He notes that on 8 December 2018, the Office of the Public Prosecutor in Novi Sad submitted a motion to the appellate court in Novi Sad stating that even though the court of first instance had secured an adequate interpreter for the most recent court hearing, it had not acted in line with the instructions of the court of second instance related to translation of the documents submitted by Turkey, and proposed to annul the decision of the court of first instance and send the case back to that court. The complainant agrees that while it was not necessary to translate the entire case file of his Turkish case, the State party’s authorities failed to provide adequate translation of any documents received from Turkey.
6.4The complainant further reiterates that the Ministry of Justice influenced the decision-making process of the appellate court by forcing it to reschedule the second instance hearing from 22 November to 15 November 2017, in order to resolve the entire case before the expiry of the maximum period of one year allowed for extradition detention. The complainant does not consider this practice to be unusual, since the independence of the judiciary in the State party has been a long-standing problem recognized in the latest findings of the Committee against torture and other human rights committees.
6.5The complainant rejects the State party’s argument that Turkey was included in the list of safe countries and notes that the State party’s decision on safe countries of origin and safe third countries was annulled after the new Law on Asylum and Temporary Protection had come into force in June 2018. Articles 44 and 45 of the new law require that the determination of whether a particular country of origin or a third country is safe shall be done on a case-by-case basis. Thus, automatic reliance on the said list undermined the State party’s obligation to assess the risk of refoulement through rigorous scrutiny.
6.6Finally, the complainant notes that his case has also been brought to the attention of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, who sent an urgent letter (No. 3/2017) to the Serbian Minister of Foreign Affairs. It appears that the Special Rapporteur has never received a response to his letter.
Issues and proceedings before the Committee
The State party’s failure to cooperate and to respect the Committee’s request for interim measures pursuant to rule 114 of its rules of procedure
7.1The Committee notes that the adoption of interim measures pursuant to rule 114 of its rules of procedure, in accordance with article 22 of the Convention, is vital to the role entrusted to the Committee under that article. Failure to respect the interim measures requested by the Committee, in particular by forcibly removing an alleged victim, undermines the protection of the rights enshrined in the Convention.
7.2The Committee notes the State party’s argument that it only learned about the request for interim measures on 18 December 2017, while the decision on extradition was rendered on 15 December 2017. The Committee also notes that the State party’s submission does not indicate when exactly the complainant was extradited to Turkey. At the same time, the Committee notes the complainant’s submission that his extradition took place on 25 December 2017.
7.3The Committee observes that any State party that has made a declaration under article 22 (1) of the Convention recognizes the competence of the Committee to receive and consider complaints from individuals who claim to be victims of violations of the provisions of the Convention. By making such a declaration, States parties implicitly undertake to cooperate with the Committee in good faith by providing it with the means to examine the complaints submitted to it and, after such examination, to communicate its comments to the State party and the complainant. By failing to respect the request for interim measures transmitted to the State party on 11 December 2017, the State party violated its obligations under article 22 of the Convention because it impeded the comprehensive examination by the Committee of a complaint relating to a violation of the Convention and prevented it from taking a decision that could effectively block the extradition of the complainant to Turkey, should the Committee find a violation of article 3 of the Convention.
Consideration of admissibility
8.1Before considering any complaint submitted in a communication, the Committee must decide whether the communication 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.
8.2The 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. The Committee notes that, in the present case, the State party has not challenged the admissibility of the complaint.
8.3Seeing no other obstacles to admissibility, the Committee finds that the complaint is admissible under article 22 of the Convention with respect to the alleged violation of article 3, and proceeds to consider it on the merits.
Consideration of the merits
9.1The Committee has considered the communication in the light of all the information made available to it by the parties concerned, in accordance with article 22 (4) of the Convention.
9.2In the present case, the issue before the Committee is whether the complainant’s extradition to Turkey constituted a violation of the State party’s obligation under article 3 (1) of the Convention not to extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. The Committee recalls, first and foremost, that the prohibition against torture is absolute and non-derogable and that no exceptional circumstances may be invoked by a State party to justify acts of torture.
9.3In assessing whether there are substantial grounds for believing that the alleged victim would be in danger of being subjected to torture, the Committee recalls that, under article 3 (2) of the Convention, States parties must take into account all relevant considerations, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights in the requesting State. However, the aim of such an analysis is to determine whether the complainant runs a personal risk of being subjected to torture if he is extradited to the requesting State. The existence of a pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute sufficient reason for determining that a particular person would be in danger of being subjected to torture on extradition to that country; additional grounds must be adduced to show that the individual concerned would be personally at risk. Conversely, the absence of a consistent pattern of flagrant violations of human rights does not mean that a person might not be subjected to torture in his or her specific circumstances.
9.4The Committee recalls its general comment No. 4 (2017) on the implementation of article 3 of the Convention in the context of article 22, according to which the non-refoulement obligation exists whenever there are “substantial grounds” for believing that the person concerned would be in danger of being subjected to torture in a State to which he or she is facing deportation, either as an individual or a member of a group which may be at risk of being tortured in the State of destination. The Committee’s practice in this context has been to determine that “substantial grounds” exist whenever the risk of torture is “foreseeable, personal, present and real”. Indications of personal risk may include, but are not limited to: the complainant’s ethnic background; the political affiliation or political activities of the complainant and/or the complainant’s family; previous torture; incommunicado detention or other form of arbitrary and illegal detention in the country of origin; and clandestine escape from the country of origin owing to threats of torture. The Committee also recalls that it gives considerable weight to findings of fact made by organs of the State party concerned. However, it is not bound by such findings and will make a free assessment of the information available to it in accordance with article 22 (4) of the Convention, taking into account all the circumstances relevant to each case.
9.5In the present case, the Committee notes the complainant’s claim that his extradition to Turkey would make him face a serious risk of persecution and torture in detention in Turkey, owing to the perception that he is a member and one of the leaders of the Revolutionary Party of Kurdistan. In that regard, the Committee notes that the complainant was sentenced in 2012 to 15 years in prison for his membership of that party, while he denies being a member or even knowing about the existence of such an organization, and claims to have been tortured while being held incommunicado for 12 days and forced to sign a confession. The Committee also notes that in 2006, the European Court of Human Rights found that the complainant had been a victim of a violation by Turkey of his rights under article 5 (3) and (4) of the European Convention on Human Rights through his unlawful and arbitrary detention in Diyarbakir police headquarters in 2001 and the lack of access to a lawyer and of a judicial examination of his detention.
9.6The Committee must take into account the current situation of human rights in Turkey, including the impact of the state of emergency (lifted in July 2018). The Committee notes that systematic extensions of the state of emergency in Turkey have led to serious violations of the human rights of hundreds of thousands of people, including arbitrary deprivation of the right to work and to freedom of movement, torture and other ill-treatment, arbitrary detention and violations of the rights to freedom of association and expression.
9.7The Committee recalls its concluding observations on the fourth periodic report of Turkey, issued in 2016, in which it noted with concern that “despite the fact that the State party has amended its law to the effect that torture is no longer subject to a statute of limitations, … [the Committee] has not received sufficient information on prosecutions for torture, including in the context of cases involving allegations of torture that have been the subject of decisions of the European Court of Human Rights. The Committee is also concerned that there is a significant disparity between the high number of allegations of torture reported by non-governmental organizations and the data provided by the State party in its periodic report, … suggesting that not all allegations of torture have been investigated during the reporting period”. The Committee highlighted its concern about “recent amendments to the Code of Criminal Procedure, which give the police greater powers to detain individuals without judicial oversight during police custody”. The Committee also regretted the “lack of complete information on suicides and other sudden deaths in detention facilities during the period under review”. The Committee takes note of the fact that the concluding observations in question were issued prior to the declaration of the state of emergency. However, the Committee notes that reports published since the declaration of the state of emergency on the situation of human rights and the prevention of torture in Turkey indicate that the concerns raised by the Committee remain relevant.
9.8In the present case, the Committee notes that the complainant’s asylum application was refused in Serbia on the grounds that Montenegro should be responsible for his asylum application. There was thus an assumption that the complainant would be removed to Montenegro, where the local authorities would examine his asylum claims on the merits, or if he were extradited, the State party’s courts would assess the risk of torture that such an extradition would entail for the complainant in view of the general human rights situation in Turkey and the complainant’s personal circumstances. As a result, the Committee observes that neither the Asylum Office nor the courts have carried out an assessment of the risk of torture that the complainant would be exposed to following his extradition to Turkey. The documents before the Committee show that the Minister of Justice of Serbia did not carry out an assessment of whether the charges against the complainant were of a political nature, as required by the decision of the appellate court in Novi Sad and the Law on International Legal Assistance in Criminal Matters, before signing the decision to extradite the complainant. The Committee therefore concludes that the State party’s authorities have failed in their duty to carry out an individualized risk assessment before returning the complainant to Turkey.
9.9The Committee further notes the complainant’s claim that the State party failed to take into consideration that his prison sentence in Turkey was based on a confession extorted under torture owing to the absence of adequately translated documents related to the complainant’s conviction in Turkey. The Committee also notes that based on the court’s request for a revised translation of the documents provided, the Ministry of Justice engaged a local certified Turkish translator to translate the documents. However, the Committee observes that the appeal submitted by the complainant to the appellate court in Novi Sad on 4 December 2017 and the motion submitted by the Office of the Public Prosecutor in Novi Sad to the same court on 8 December 2017, indicate that at the time of the complainant’s extradition, the State party still had not adequately translated the documents related to his conviction in Turkey. The Committee is thus of the view that the State party’s authorities failed to establish whether the complainant’s conviction was based on his confession extorted under torture.
9.10Taking into consideration the foregoing, the Committee concludes that, in the present case, the State party’s removal of the complainant to Turkey constituted a violation of article 3 of the Convention. In the light of this conclusion, the Committee will not consider any of the complainant’s other claims.
10.The Committee, acting under article 22 (7) of the Convention, therefore concludes that the complainant’s extradition to Turkey constituted a violation of article 3 of the Convention. Regarding the State party’s lack of compliance with the Committee’s request of 11 December 2017 for interim measures for the complainant not to be extradited and his forcible removal to Turkey on 25 December 2017, the Committee, acting under article 22 (7) of the Convention, decides that the facts before it constitute a violation by the State party of article 22 of the Convention due to a lack of cooperation with the Committee in good faith, which prevented the Committee from considering the present communication effectively. The Committee also notes that the State party failed to provide sufficiently specific detail as to whether it has engaged in any form of post-expulsion monitoring of the complainant, and whether it has taken any steps to ensure that the monitoring is objective, impartial and reliable.
11.The Committee considers that the State party has an obligation to provide redress for the complainant, including adequate compensation of non-pecuniary damage resulting from the physical and mental harm caused. It should explore ways and means of monitoring the conditions of the complainant’s detention in Turkey, in order to ensure that he is not subjected to treatment contrary to article 3 of the Convention, and inform the Committee as to the results of such monitoring.
12.The Committee urges the State party, in accordance with rule 118 (5) of its rules of procedure, to inform it, within 90 days of the date of transmittal of the present decision, of the steps taken in response to it. The Committee urges the State party to take steps to prevent similar violations of article 22 in the future and to ensure that, in cases where the Committee has requested interim measures, the complainants are not removed from the State party’s jurisdiction until the Committee has made a decision on a prospective application.