Committee against T orture
Decision adopted by the Committee under article 22 of the Convention, concerning communication No. 905/2018 * , **
Communication submitted by:A and B (represented by N.Z., a non-governmental organization)
Alleged victims:The complainants
Date of complaint:22 December 2018 (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 22 December 2018 (not issued in document form)
Date of present decision:27 July 2022
Subject matter:Expulsion of the complainants from Azerbaijan to Türkiye
Procedural issues :Admissibility – exhaustion of domestic remedies; admissibility – manifestly unfounded
Substantive issues:Risk of torture if deported to country of origin (non-refoulement); prevention of torture
Article of the Convention:3
1.1The complainants are A and B, both nationals of Türkiye. At the time of submission of the communication, A (“the first complainant”) was facing extradition from Azerbaijan to Türkiye, and B (“the second complainant”) claimed that she could also be subjected to an expulsion to Türkiye at a later time. They claim that, if the State party were to proceed with their expulsion to Türkiye, it would violate their rights under article 3 of the Convention. The State party has made the declaration pursuant to article 22 (1) of the Convention, effective from 4 May 2002. The complainants are represented by a non-governmental organization.
1.2On 24 December 2018, 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 expel the complainants to Türkiye while the complaint was being considered.
Facts as submitted by the complainant
2.1The first complainant graduated from Kafkas University, a university that was affiliated with the Hizmet/Gülen movement, and worked for Hizmet/Gülen movement-affiliated Turkish schools known as Cag educational institutions or Istek schools. The second complainant arrived in Azerbaijan in 2008 to work at Istek schools. The complainants got married in 2014.
2.2Following the attempted coup in Türkiye on 15 July 2016, the Istek schools in Azerbaijan were closed and the residence permits of the educators were cancelled. The teachers, including the complainants, applied to the State Migration Service three times for temporary residence permits, but their applications were refused. The complainants contested the refusals to the domestic courts; however, the courts upheld the decisions of the State Migration Service.
2.3As a last resort to avoid deportation and subsequent torture and ill-treatment in Türkiye, the complainants registered as asylum-seekers with the Office of the United Nations High Commissioner for Refugees (UNHCR) in Azerbaijan. At around the time that the Istek schools were closed, the complainants had a daughter, on 14 March 2017. The complainants applied for a national identity card and a passport at the Turkish Consulate in Baku. The Consulate provided the daughter with an identity card but denied her a Turkish passport. According to consular officials, they could not provide them with consular services. The complainants filed a petition with the presidential communication centre of Türkiye but were referred back to the Turkish Consulate in Baku. Even though the complainants feared abduction while inside the consulate, they nevertheless visited the consulate again, but received a second refusal to the request for a passport for their daughter. When rejecting the request, consular officials clearly stated that their goal was to return the complainants to Türkiye and offered to issue a travel document instead.
2.4Because of the risk of abduction or detention and subsequent illegal transfer to Türkiye, the complainants decided that the second complainant would stay behind in Azerbaijan with their daughter, while the first complainant would try to leave Azerbaijan for international protection in a safe third country. On 3 November 2018, he travelled from Azerbaijan to Tbilisi and from there he was going to travel through Minsk to Belgrade, but the Belarusian authorities did not approve his transit to Serbia, arbitrarily holding him at the airport in Minsk. Eventually, the first complainant was returned to Azerbaijan.
2.5On 20 December 2018, the first complainant received a call from the State Migration Service inviting him to come for a meeting the following day. The complainants immediately notified UNHCR about the situation and the latter assigned a staff member to accompany the first complainant to the meeting. At the meeting on 21 December 2018, the first complainant was shown a document from the International Criminal Police Organization (INTERPOL) in Türkiye, indicating that his passport (which was valid until December 2021) had been cancelled by the authorities. He was further informed that he was on the wanted list of INTERPOL and that the authorities would not release him unless a representative from the Turkish Consulate visited the State Migration Service headquarters. Under this pretext, the immigration authorities held the first complainant for the entire day of 21 December 2018. The first complainant’s lawyer visited the State Migration Service at 5 p.m. and insisted that the authorities had no legal grounds to hold him, as the complainant’s family members were asylum-seekers living legally in Azerbaijan, based on documents provided by the United Nations. Their legal status was also confirmed by the State Migration Service; however, the first complainant was not released. The Azerbaijani authorities also seized his passport and did not return it to his lawyer, despite a formal request lodged by him. At 8.30 p.m., the first complainant was taken to the immigration detention centre, where he was placed in a cell.
2.6On 22 December 2018, the first complainant’s lawyer was summoned to the Khatai District Prosecutor’s Office. The assistant prosecutor told him that Türkiye had requested the extradition of the first complainant and that the lawyer would be able to review the documents. According to the documents presented, an arrest warrant had been issued by the fifth criminal peace court in Ankara at the request of the Prosecutor AdemAkinchi on the same day that the first complainant had been detained in Azerbaijan. The Khatai District Prosecutor’s Office informed the lawyer that an extradition hearing would be scheduled for 24 December 2018.
2.7At the time of the submission of the present complaint, the first complainant was awaiting his extradition hearing.
3.1The first complainant claims that he was not aware of any arrest warrants against him; however, the fact that he is a former employee of the Cag educational institutions, which are affiliated with the Hizmet/Gülen movement, and having graduated from Kafkas University (a Hizmet/Gülen movement-run university), being a former subscriber to the Zaman newspaper, having a bank account at Bank Asya and having a brother imprisoned and sentenced to 10 years in prison on similar fabricated charges is more than sufficient to assert that, if expelled to Türkiye, he would be perceived as a supporter of the Hizmet/Gülen movement and would receive a lengthy prison sentence and be subjected to torture and ill-treatment, including prolonged solitary confinement. The complainant notes that he is aware of at least six other cases in which Turkish nationals, also perceived as supporters of the Hizmet/Gülen movement, were detained in Azerbaijan and illegally transferred to Türkiye, with reports of torture and ill-treatment used against them. He also notes that the Turkish authorities extensively use INTERPOL Red Notices to detain political opponents and that many European leaders have called upon INTERPOL to prevent abuse of Red Notices by Türkiye.
3.2The second complainant claims that, as a former employee of a Hizmet/Gülen movement-affiliated education entity, she is also a target for the Turkish authorities. She submits that many of her former colleagues, including the accountant of her former school, have already been imprisoned and that she too will be immediately taken into custody and imprisoned should she be detained or abducted and returned to Türkiye.
State party’s observations on admissibility
4.1On 22 February 2019, the State party submitted its observations on the admissibility of the complaint. It argues that the complaint is inadmissible for non-exhaustion of domestic remedies because the complainants have not brought any claims under article 3 of the Convention before the authorities in Azerbaijan. The State party notes that a number of domestic remedies appear available to the complainants, including the Prosecutor’s Office and the Office of the Ombudsman. Most importantly, the State party argues, the complainants failed to raise the matter before the domestic courts and, as such, the courts did not have any opportunity to examine the first complainant’s case.
4.2The State party notes that the complaint should also be found inadmissible for being manifestly unfounded. It asserts that the complaint has been limited to vague and general statements, without any detailed account of events or evidence to substantiate the complainants’ claims. Therefore, the State party submits that the complaint is inadmissible pursuant to rule 113 (b) of the Committee’s rules of procedure.
State party’s observations on the merits
5.1On 21 June 2019, the State party submitted its observations on the merits of the complaint. The State party informs the Committee that the first complainant was expelled to Türkiye in accordance with national and international law. With regard to the second complainant, the State party notes that she, together with her daughter, voluntarily left Azerbaijan for Germany on 8 February 2019. Consequently, the State party submits that the second complainant is not a victim of an alleged violation of article 3 of the Convention.
5.2The State party rejects the allegations stated in the complaint about illegal abduction and other illegal actions ostensibly taken by officials in Azerbaijan and considers them to be without evidence, unsubstantiated and of speculative character. With regard to the facts of the complaint, the State party submits that, on 25 July 2017, both complainants applied for asylum with the State Migration Service. On 25 October 2017, the State Migration Servicerefused the complainants’ application for asylum after it had reviewed and examined their cases. The complainants were interviewed by the State Migration Service, during which they argued that they did not belong to any group in Türkiye and had no information about their persecution by any representatives of the Government of Türkiye. After further examination of the complainants’ case and taking into account all other relevant considerations, the State Migration Service came to the conclusion that there were no substantial grounds for believing that the complainants would be in danger of being subjected to torture in Türkiye.
5.3The State party further notes that the complainants contested the decision of the State Migration Service and applied to the Baku Administrative-Economic Court No. 1 for the State Migration Service to be obliged to grant them asylum. On 3 April 2018, the Baku Administrative-Economic Court No. 1 dismissed the complainants’ claim. On 22 June 2018, upon the complainants’ appeal of the decision of 3 April 2018 of the Baku Administrative-Economic Court No. 1, the Baku Court of Appeal upheld the decision of the Baku Administrative-Economic Court No. 1, dismissing the complainants’ appeal. On an unspecified date, the complainants lodged a cassation complaint with the Supreme Court of the Republic of Azerbaijan, which was dismissed on 4 September 2018. Meanwhile, on 18 April 2018, the first complainant had applied to the State Migration Service for a work permit as a deputy head of a company named “Umid Ltd.”. On 24 April 2018, the State Migration Service refused the first complainant’s application for a work permit on the basis of article 50.0.1 of the Migration Code, according to which applications of foreigners and stateless persons for the issuance (or extension) of a temporary residence permit on the territory of Azerbaijan are rejected and previously issued permits are cancelled when they may damage the national security of Azerbaijan and public order.
5.4With regard to the first complainant’s arrest and expulsion, the State party submits that, on 21 December 2018 at around 9 p.m., the first complainant was administratively arrested and placed at the Baku detention centre for illegal migrants of the State Migration Service. On 24 December 2018, according to a decision of the Khatai District Court, he was sentenced to 30 days of arrest pending a possible decision on his extradition. On 28 December 2018, upon the first complainant’s appeal, the Baku Court of Appeal re-examined the case and held that, pursuant to articles 155.1–155.3 of the Code of Criminal Procedure, there had been no procedural grounds for applying arrest as a restrictive measure against him. The Court therefore upheld the first complainant’s appeal and ordered his release from detention. On 28 December 2018, the first complainant requested the State Migration Service to place him on a voluntary basis at the Baku detention centre for illegal migrants until he could return to Türkiye, as he did not have any place or means to live. On the same date, the State Migration Service issued a decision granting the complainant’s request to place him at the detention centre on a voluntary basis, and he was placed there. Also on the same date, the State Migration Service issued a decision to expel the first complainant from Azerbaijan and restrict his entry to Azerbaijan for five years. The decision was based on articles 79.1.4 and 79.2 (decision on expulsion) of the Migration Code, according to which the relevant executive power issues a decision on the expulsion of foreigners and stateless persons in case of refusal to grant refugee status, and their entry into Azerbaijan is restricted for up to five years in line with the decision on expulsion. On 29 December 2018, the first complainant was expelled from Azerbaijan to Türkiye.
5.5The State party refers to the case of A.M. v. France, decided by the European Court of Human Rights, concerning the applicant’s planned deportation to Algeria after he had been convicted in France in 2015 for participating in acts of terrorism and had been permanently banned from French territory. The European Court of Human Rights concluded that the general situation regarding individuals linked to terrorism in Algeria did not, in itself, preclude the applicant’s deportation. The European Court of Human Rights found, in conclusion, that A.M. had not provided any indications to show that, if he were returned to Algeria, he would be exposed to a real risk of treatment in breach of article 3. It thus made a clear distinction between the general situation in Algeria and the applicant’s personal situation. It also reiterated that the burden of proof for the establishment of a personal risk lay on the applicant. The State party notes that, in the present case, the complainants have failed to submit any plausible evidence to suggest that they had faced real risk of ill-treatment upon their return to Türkiye. The complainants had not produced sufficient arguments to demonstrate that they would be at risk of torture or inhuman or degrading treatment or punishment, or that they would be persecuted by the Turkish authorities on the basis of race, religion, nationality or belonging to a certain group or based on political opinion. The State party draws the Committee’s attention to the fact that the complainants’ requests for asylum had been extensively examined both by the State Migration Service and later during the proceedings in the domestic courts, which revealed that there had been no substantial grounds for believing that the complainants would be in danger of being subjected to persecution or torture in Türkiye.
5.6The State party submits that the Baku Administrative-Economic Court No. 1, in its decision of 3 April 2018, upheld the decision of the State Migration Service in not granting the complainants refugee status. First, the Court found that the complainants were not refugees as defined in article 1 of the law on the status of refugees and internally displaced persons. Second, the Court noted that the interview with the complainants and a further examination of the case had revealed that there had been no substantial grounds for believing that they would be in danger of being subjected to persecution or torture in Türkiye. The complainants failed to present any evidence in the domestic courts that could show that there was a risk of them being tortured in Türkiye. That decision was also examined and upheld in both appellate and cassation instances and became final on 4 September 2018. Subsequently, on 28 December 2018 the State Migration Service issued a decision to expel the first complainant from Azerbaijan and restrict his entry for five years. According to the State party, the aforementioned shows that all procedural aspects have been complied with regarding the complainants’ case and that there is no evidence to suggest that it failed to comply with the requirement of the Convention.
Complainants’ comments on the State party’s observations on admissibility and the merits
6.1On 29 December 2019, the complainants submitted their comments on the State party’s observations. They reject the State party’s assertion that domestic remedies have not been exhausted. They note that their asylum applications have been examined both by the State Migration Service and later during the proceedings in the domestic courts, which is reflected in the State party’s own submissions.
6.2With regard to the facts of the complaint, the complainants submit the following: When, on the morning of 24 December 2018, the first complainant was brought before the Khatai District Court, the Court noted that there was no formal request for his extradition. Instead, the prosecutor had presented before the court only an arrest warrant issued by the fifth criminal peace court in Ankara. Despite the lack of any formal extradition request, the Court decided to place the first complainant in one-month pre-extradition detention. Following the ruling, the first complainant’s lawyer submitted an appeal before the Baku Court of Appeal. On 28 December 2018, the lawyer was initially told by his working-level contacts at the Baku Court of Appeal that the Court would be on a holiday recess from 28 December 2018 to 3 January 2019; however, at 1 p.m. he received a call from a court assistant informing him that the appeal would be heard at 3 p.m. on the same day. When the first complainant’s lawyers arrived at the Court, they were told by court employees that several State Migration Service agents were also present and waiting for the hearing to start. The lawyers immediately suspected that the authorities had already prepared the abduction scenario as in other similar cases. During the hearing, the lawyers made their interventions, but the prosecutor chose not to provide any counterarguments, including to the lawyers’ request to quash the decision of the Khatai District Court and to release the first complainant. In view of the arguments, the presiding judge ruled to quash the decision of the Khatai District Court with regard to the first complainant’s arrest and ordered his immediate release. However, instead of releasing the first complainant, the authorities told the lawyers that he would be released only after the judge’s decision was given to them in writing. They took the first complainant away from his lawyers through the back door and, as it would be known later, he was transferred to the migration camp in Kurdexani. The second complainant tried to locate her husband in the building of the Court, approaching the guards and pleading with the deputy prosecutor, who was still in the courtroom, to no avail.
6.3The complainants submit that, on 29 December 2018, the first complainant was secretly driven to the international airport in Baku and put on a plane to Ankara. After he had arrived in Ankara, the Turkish President praised Azerbaijan for its “cooperation” in his abduction and transfer. According to the complainants, the first complainant was brought to a police department where an officer, referred to as “Inspector” by other police officers, began shouting and insulting him, and slapping and beating him in the head. The officer then cuffed the first complainant’s hands behind his back and made him walk outside and back into the building, while video recording it. The video was later distributed to various media outlets reporting the first complainant’s arrest. The first complainant was then taken upstairs, where he was further beaten and insulted by the “Inspector”. The “Inspector” also threatened the first complainant with legal action against his family. He noted that the first complainant’s brother had been arrested on terrorism charges in relation to the Hizmet/Gülen movement, that his brother-in-law, who was in the military, had also been arrested, that his father had been dismissed from his job and that his sister had been detained on accusations of using the ByLock app. In the end, the “Inspector” threatened him with the abduction of his wife, the second complainant, saying that they could bring her to Türkiye, put her in jail and give his daughter to the child protection agency. During the next six days, the first complainant was interrogated four times by the Chief Inspector, often under psychological pressure. When he told the interrogator that he wouldn’t speak without his lawyer present, he was threatened with being taken to a special military team who would force him to speak within one hour. He was allowed to see a lawyer for only 15 minutes on the evening of 29 December 2018. On 4 January 2019, the first complainant was taken to the seventh criminal peace court in Ankara, where he was indicted on the following charges: being a member of an armed terrorist organization by being part of the Hizmet/Gülen movementin Azerbaijan, using ByLock, studying at a Hizmet/Gülen movement-associated university, staying indormitories belonging to the organization, teaching in schools in Azerbaijan allegedly affiliated with the Hizmet/Gülen movement, donating money to the Hizmet/Gülen movement under the name of Himmet and following Fethullah Gülen’s call to continue depositing funds in Bank Asya following the Government’s shutdown of some of the activities of the bank. On these charges he risks 15 years’ imprisonment.
6.4The complainants note that the first complainant was returned to Türkiye despite the Committee’s request to Azerbaijan of 24 December 2018 to refrain from such action. The complainants regret that the State party not only blatantly disregarded the request of the Committee but also failed, in its submission to the Committee, to make any reference to the interim measures request. They note that, in similar cases, the Committee had unequivocally held that, in accordance with rule 114 of the Committee’s rules of procedure, the State party should comply with the Committee’s request for interim measures under rule 108, in good faith, and that non-compliance was considered a violation of article 22 of the Convention.
6.5The complainants reject the State party’s assertion that the second complainant is not a victim of an alleged violation of article 3 of the Convention. They note that she too, just as the first complainant, was at imminent risk of removal to Türkiye if not for international protection received through UNHCR. The complainants submit that at least nine other Turkish nationals with ties to Hizmet/Gülen movement-affiliated Turkish schools, despite being asylum-seekers, were illegally returned to Türkiye and consequently subjected to torture and ill-treatment, including prolonged solitary confinement. They note that, after the first complainant had been returned to Türkiye and the video of him at the police headquarters in Ankara, as well as the video of the second complainant’s crying in front of the Baku Court of Appeal, had been circulated by many Turkish channels and news websites, many comments were made on social media calling for the second complainant to be brought to Türkiye similarly to her husband. While in detention in Türkiye, the first complainant was shown documents tying the second complainant to Hizmet/Gülen movement-affiliated Turkish schools, to Bank Asya, to money transfers from her brother and so on, and was threatened that she would also be transferred from Azerbaijan to Türkiye if necessary. The complainants argue that, if not for the urgent action by UNHCR and the Government of Switzerland, which granted international protection to the second complainant and her daughter, the second complainant would not have been able to leave Azerbaijan and would have eventually suffered the same fate as her husband.
6.6The complainants further reject the State party’s submission that their request for asylum was rejected in part because they argued that they did not belong to any group in Türkiye and had no information about their persecution by any representatives of the Government of Türkiye. They note that, during their application procedure at the State Migration Service, they claimed that they had a well-founded fear of persecution as perceived Gülenists. They refer to the decisions of the State Migration Service dated 25 October 2017 and of the Baku Administrative-Economic Court No. 1 dated 3 April 2018, which clearly state that they had had a well-founded fear of persecution in Türkiye because of their perceived links to the Hizmet/Gülen movement.
6.7With regard to the State party’s argument that the complainants’ residence permits were cancelled due to national security and public order concerns, the complainants submit that the State party has failed to take into account the principle of proportionality. They note that the first complainant was not in the military but rather a schoolteacher who had lived since 2004 in Azerbaijan without any criminal record; thus, he was not a threat to the public order and national security of Azerbaijan or any other country.
6.8The complainants reiterate that the facts presented by the State party in relation to the first complainant’s arrest and expulsion to Türkiye are incorrect. They categorically reject the State party’s submission that the first complainant had submitted a written statement to the State Migration Service requesting it to place him on a voluntary basis at the Baku detention centre for illegal migrants until he could return to Türkiye as he did not have any place and means to live. They insist that the first complainant neither saw nor signed such document, and it would have been illogical for him to have done so, especially immediately after appealing his illegal detention and being released from detention by the Baku Court of Appeal. Therefore, the complainants submit that the State Migration Service’s approval of the first complainant’s request to place him in detention, which appears in the State party’s submission, is a fictitious document, drafted after the illegal transfer of the first complainant to Türkiye, in an attempt by the State party to justify his abduction and illegal transfer.
Issues and proceedings before the Committee
Consideration of admissibility
7.1Before 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.
7.2In accordance with article 22 (5) (b) of the Convention, the Committee shall not consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. The Committee notes the State party’s claim that the complainants have failed to exhaust domestic remedies because they have not brought any claims under article 3 of the Convention before the authorities in Azerbaijan, including the domestic courts, the Prosecutor’s Office and the Office of the Ombudsman. However, the Committee observes from the decision of the State Migration Service dated 25 October 2017 that the complainants’ reason for applying for asylum was precisely their fear of returning to Türkiye after the coup d’état attempt in 2016 because they feared being arrested and prosecuted similarly to some of their family members and colleagues. The Committee further observes that the complainants’ appeals were heard by the domestic courts, and the Supreme Court of the Republic of Azerbaijan dismissed their cassation appeal on 4 September 2018.
7.3The Committee notes that the State party has not explained how the other remedies mentioned, namely the Prosecutor’s Office and the Office of the Ombudsman, would have provided effective remedy to the complainants, including if appeals to those bodies would have a suspensive effect. In the circumstances of the present case, the Committee finds that article 22 (5) (b) of the Convention does not preclude it from declaring the communication admissible.
7.4The Committee further notes the State party’s argument that the complaint should also be found inadmissible for being manifestly unfounded because it is limited to vague and general statements, without any detailed account of events or evidence to substantiate the complainants’ claims. Therefore, the State party submits that the complaint is inadmissible pursuant to rule 113 (b) of the Committee’s rules of procedure. The Committee observes that the complainants, for their part, argue that they face expulsion as persons related to the Hizmet/Gülen movement, which is described as a terrorist group by the Government of Türkiye. The Committee therefore finds that the complainants have sufficiently substantiated their complaint for the purposes of admissibility.
7.5The Committee notes the second complainant’s claim that, as a former employee of a Hizmet/Gülen movement-affiliated education entity, she is also a target for the Turkish authorities. However, the Committee observes that, on an unspecified date, the second complainant left the State party after receiving international protection in Switzerland. Accordingly, the Committee finds that the claim regarding the second complainant is not sufficiently substantiated for the purpose of admissibility.
7.6As the Committee finds no further obstacles to admissibility, it declares the communication submitted under article 3 of the Convention admissible and proceeds with its consideration of the merits.
Consideration of the merits
8.1The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 22 (4) of the Convention.
8.2In the present case, the issue before the Committee is whether the first complainant’s expulsion to Türkiye constituted a violation of the State party’s obligation under article 3 of the Convention not to expel or to return (refouler) 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.
8.3The Committee must evaluate whether there are substantial grounds for believing that the complainant was personally in danger of being subjected to torture upon return to Türkiye. In assessing that risk, the Committee must take into account all relevant considerations, pursuant to article 3 (2) of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights.However, the Committee recalls that the aim of such determination is to establish whether the individual concerned would be personally at a foreseeable and real risk of being subjected to torture in the country to which the individual would be returned.It follows that 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 return 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.
8.4The 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 as a member of a group that may be at risk of being tortured in the State of destination. The Committee recalls 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 or the complainant’s family members; 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, as it can 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.
8.5In assessing the risk of torture in the present case, the Committee notes the first complainant’s claim that his expulsion would expose him to substantial risks of torture in detention in Türkiye because of his perception as a supporter of the Hizmet/Gülen movement. In this regard, the Committee observes that the first complainant is a former employee of a Hizmet/Gülen movement-affiliated school and a graduate of a Hizmet/Gülen movement-run university, whose brother was sentenced to 10 years in prison on charges of being a supporter of the Hizmet/Gülen movement and who himself is the subject of an arrest warrant issued by the fifth criminal peace court in Ankara on 21 December 2018. The Committee also notes the State party’s submission that the complainants were interviewed by the State Migration Service, during which they argued that they did not belong to any group in Türkiye and had no information about their persecution by any representatives of the Government of Türkiye, which led the State Migration Service to the conclusion that there had been no substantial grounds for believing that the complainants would be in danger of being subjected to torture in Türkiye. Therefore, according to the State party, the first complainant was expelled in accordance with national and international law.
8.6The Committee must take into account the human rights situation in Türkiye at the time of the first complainant’s expulsion, including the impact of the state of emergency (which, although lifted in July 2018, entailed restrictive measures that have been extended through the adoption of a series of legislative measures). It notes that the successive extensions of the state of emergency in Türkiye have led to serious human rights violations against hundreds of thousands of people, including arbitrary deprivation of the right to work and of freedom of movement, torture and ill-treatment, arbitrary detention, and violations of the rights to free association and expression. In this regard, the Committee recalls its concluding observations on the fourth periodic report of Türkiye, in 2016, in which it noted with concern 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 fourth periodic report, suggesting that not all allegations of torture had been investigated during the reporting period. In the same concluding observations, the Committee highlighted its concern about recent amendments to the Code of Criminal Procedure, which gave the police greater powers to detain individuals without judicial oversight during police custody. The Committee also expressed regret about the lack of complete information on suicides and other sudden deaths in detention facilities during the period under review.
8.7The Committee recognizes that the concluding observations in question were issued prior to the declaration of the state of emergency. However, it recalls that, following the attempted coup d’état of July 2016, it expressed concern about the situation in Türkiye in a follow-up letter sent to the State party on 31 August 2016. It also notes that reports on the human rights situation and the prevention of torture issued since the declaration of the state of emergency in Türkiye have indicated that the concerns raised by the Committee remain relevant.
8.8In the present case, the Committee notes that the first complainant claims to be at risk of being persecuted on account of his political activities, as he is perceived to be a member of the Hizmet/Gülen movement, considered responsible for the attempted coup d’état of July 2016. The Committee observes that, according to its report of 2018, the Office of the United Nations High Commissioner for Human Rights (OHCHR) had access to reliable information indicating that torture and ill-treatment were used during pretrial detention in the context of the Turkish authorities’ response to the attempted coup d’état of July 2016. In the same report, OHCHR states that it has documented the use of various forms of torture and ill-treatment in detention, including beatings, threats of sexual assault, actual sexual assault, electric shocks and simulated drowning. Those acts of torture were generally intended to extract or coerce confessions or force denunciations of other individuals as part of the investigation of acts connected with the attempted coup d’état. In his report on his mission to Türkiye, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment expresses the view that the use of torture was widespread following the attempted coup d’état. The Special Rapporteur also notes that the low number of investigations and prosecutions initiated in response to allegations of torture or ill-treatment seemed grossly disproportionate to the alleged frequency of the violations, indicating insufficient determination on the part of the responsible Turkish authorities to investigate the allegations made.
8.9With regard to the direct impact of the state of emergency declared on 20 July 2016, the Committee takes note of the concern expressed by OHCHR about the adverse effects of the measures on safeguards against torture and ill-treatment. In particular, OHCHR makes reference to the restrictions that may be imposed on contacts between detainees and their lawyers, the increase in the maximum permitted duration of police custody, the closure of certain independent mechanisms for the prevention of torture and the excessive use of pretrial detention. After successive extensions declared by the Turkish authorities, the state of emergency was formally ended on 19 July 2018. In a letter dated 8 August 2018, the Turkish authorities informed the Council of Europe that the state of emergency had been terminated on 19 July 2018, at the end of the deadline set through Decision No. 1182, and that, accordingly, the Government of Türkiye had decided to withdraw the notice of derogation from the European Convention on Human Rights. However, a series of legislative measures has been adopted extending the application of the restrictive measures introduced during the state of emergency, such as the possibility of prolonging police custody for up to 12 days.
8.10In the present case, the Committee notes the State party’s argument that the first complainant voluntarily asked to be put in the Baku detention centre for illegal migrants until he could return to Türkiye because he did not have any place or means to live in Azerbaijan. The Committee notes that that argument is rejected by the first complainant himself, who claims that he neither saw nor signed such document and that it would illogical for him to do so, especially immediately after appealing his illegal detention and being released from detention by the Baku Court of Appeal. According to the first complainant, it is a fictitious document, drafted after his illegal transfer to Türkiye in an attempt by the State party to justify his abduction and illegal transfer. The Committee observes that the complainant’s claim is supported by an abundance of evidence, as many Turkish media outlets reported on the abduction of the first complainant from Azerbaijan and his transfer to Türkiye, and even the Turkish President openly praised Azerbaijan for its “cooperation” in the case.
8.11In the light of the above, and having regard to the first complainant’s profile as a member – whether perceived or real – of the Hizmet/Gülen movement, the Committee is of the view that the State party should have conducted an individualized assessment of the real and personal risk to which the first complainant would be exposed in Türkiye, particularly bearing in mind the documented treatment by the Turkish authorities of persons associated with that movement. Taking into consideration the foregoing, the Committee concludes that, in the present case, the State party’s removal of the first complainant to Türkiye constituted a violation of article 3 of the Convention.
9.The Committee, acting under article 22 (7) of the Convention, concludes that the State party’s removal of the first complainant to Türkiye constituted a violation of article 3 of the Convention. Regarding the State party’s lack of compliance with the Committee’s request of 24 December 2018 for interim measures for the complainants not to be returned to Türkiye, and its reiteration on 28 December 2018, the Committee regrets that, despite its repeated requests, the State party expelled the first complainant to Türkiye on 29 December 2018 and has not provided any explanation for its failure to respect the Committee’s requests. In view of the above, the Committee, acting under article22(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 had engaged in any form of post-expulsion monitoring of the first complainant and whether it had taken any steps to ensure that the monitoring was objective, impartial and reliable.
10.The Committee considers that the State party has an obligation to provide redress for the first 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 Türkiye, including his access to counsel and medical care, within the framework of existing agreements with Türkiye, 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.
11.Pursuant to rule 118 (5) of its rules of procedure, the Committee urges the State party to inform it, within 90 days of the date of transmittal of the present decision, of the steps taken to respond to the above observations. 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.