CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 octobre 1992

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                        AS TO THE ADMISSIBILITY OF                         Application No. 18394/91                       by H.K.                       against the United Kingdom         The European Commission of Human Rights sitting in private on 22 October 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  S. TRECHSEL                  F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G. H. THUNE            Sir    Basil HALL            M.     F. MARTINEZ            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                    Mr. H.C. KRÜGER, Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 9 March 1991 by H.K. against the United Kingdom and registered on 20 June 1991 under file No. 18394/91;         Having regard to:   -      the report provided for in Rule 47 of the Rules of Procedure of       the Commission;       -      the observations submitted by the respondent Government on       10 June 1992 and the observations in reply submitted by the       applicant on 20 July, 27 August and 11 September 1992;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Turkish citizen and an Alevi Kurd.   He was born in 1965 and at the time of lodging his application he was detained in H.M. Prison Pentonville, London, awaiting the outcome of his asylum application and possible removal back to Turkey.         He is represented before the Commission by Mr. M. Chatwin, Legal Adviser, Camden Community Law Centre, London.         The facts of the present case, as submitted by the parties, may be summarised as follows:         The applicant entered the United Kingdom at Gatwick airport, from Turkey, on 22 December 1990 using a false Greek passport.   He applied for asylum and was interviewed by immigration officers with the assistance of a Turkish interpreter on 23 December 1990.   The applicant stated in his observations to the Commission that the immigration officer had prior information about the applicant being wanted by Turkish security services for his political activities.   The interpreter spoke to him in his second language, Turkish, not Kurdish, and allegedly referred to the applicant as a terrorist.         The applicant said in his asylum application that he was a member of the Turkish Revolutionary Communist Party (TDKP).   According to the applicant and his representative this party believes in the overthrow of the existing regime in Turkey by revolutionary means and its replacement with a socialist republic.   It does not practise armed struggle, although it believes this may be necessary in the later stages of the revolution.         He had joined the party because of the Turkish Government's harassment and torture of Kurds.   For example he said that the Government had built a mosque in his village which villagers were forced to attend or face torture.   He said that he had been tortured by beatings, including beatings on his feet, but which left no scars. As the applicant owned a mini-bus, he transported and distributed documents and put up posters for the party.   He denied carrying guns for the party, but said he had done so on one recent occasion.   He had had a gun himself, an MAP. 765, but he had donated it to the party which collected arms for distribution when necessary.   He recounted that on the night of 23 November 1990 he had carried guns and passengers in his mini-bus, accompanied by another passenger vehicle. They came across a road block and were fired on by the Turkish police. The applicant and his companions escaped in the second vehicle, apart from one person who had been shot and who, under torture, has disclosed all their names.   The applicant hid in Istanbul where the TDKP arranged his flight to the United Kingdom with the forged passport costing 3000 DM.   His representative submitted that the applicant's accounts may have been general and sketchy because it is well-known that asylum seekers often do not feel sufficiently confident to express themselves fully and freely so shortly after being persecuted.   He did not have the benefit of legal advice or the benefit of an independent interpreter who could verify or correct misunderstandings.           The applicant was interviewed in prison by an immigration officer on 4 February 1991.   He said that he had owned a gun because he had inherited it from his grandfather, who had been a farmer.   He said that he did not collect guns or weapons for the TDKP, of which he is a full member, because the party does not need them.   Only the party leaders have arms for self-protection.   He stated that, when in hiding in Istanbul, he had telephoned the captured person's family, who said he had divulged the applicant's name to the police.   Moreover the police from the road block could identify him easily, as the owner of the mini-bus, from the vehicle's registration number.   He claimed that he was only carrying illegal documentation in the bus.   This was the only kind of work he had done for the party: carrying documents, distributing leaflets, and attending meetings and demonstrations.   He could not elaborate further on the TDKP as its work is secret.         On 13 February 1991 Mr. Chatwin, the applicant's representative, made representations to the Secretary of State on the applicant's behalf.   He affirmed that the TDKP was not a violent organisation and that it would be inappropriate to imagine that the applicant had been involved in gun-running for it.   Any reference to guns, other than that of the applicant's grandfather, in previous interviews at which he was not legally represented, must have been a misunderstanding, misrepresentation or fabrication.   The applicant had gone to England to avoid prosecution and torture for having a large quantity of unlawful literature in his mini-bus on the night of 23 November 1990. He suspected that the police had been tipped off about his activities when they set up the road block which he had unsuccessfully tried to crash.   From Istanbul the applicant was said to have telephoned home and his family told him that his injured colleague had been captured and that the police had raided their home looking for the applicant, which indicated that the injured man had been forced to disclose the applicant's name.   It was claimed that he had been detained repeatedly in the past for short periods without being charged.   On such occasions he was allegedly tortured by beatings, falaka, electric shocks, by being hung up by his limbs, blindfolded and deprived of his clothing. He knew that in view of the recent events he would be prosecuted this time if returned to Turkey.         On 20 February 1991 the applicant was examined by a psychiatrist with the Medical Foundation for the Care of Victims of Torture.   The applicant told the doctor that he had suffered severe beatings and torture at the hands of the security forces in Turkey, including ill- treatment during his military service.   He reported that he had been given electric torture and received broken bones as a result of his ill-treatment.   He was feeling suicidal at the prospect of returning to Turkey.   The psychiatrist considered that the applicant showed many symptoms of a post-traumatic stress disorder and presented a definite suicide risk.         The medical report was submitted to the Home Office by the applicant's representative on 27 February 1991.   Mr. Chatwin requested the Secretary of State to note that the applicant repeatedly spoke of torture and had numerous scars to show it.   In 1984 the applicant claimed to have been severely tortured for periods of 15 and 25 days leaving him crippled for several weeks.   He did his military service   in 1985 without undue trouble apart from feeling constantly tense and nervous.   He returned to his village in 1986 where he pursued his political activities, moving to Ankara in 1987.   There he was arrested, tortured and released without charge.   He returned home in 1988 where he bought the mini-bus to use as a self-employed bus driver, and he became a full member of the TDKP.   He distributed leaflets, travelling to a miners' strike, for example, in 1990.   This was the kind of activity involved on the night of 23 November 1990.         On 9 April 1991 the Secretary of State informed the applicant, after interviewing him, that he was minded to refuse the request for asylum.   This was confirmed on 16 May 1991 because the applicant's claims were considered to be inconsistent and untruthful.   Following the grant of leave for judicial review of this decision on 6 June 1991, the Secretary of State reconsidered the applicant's case.         On 27 June 1991 the Secretary of State informed the applicant's representative of his following conclusions, after setting out a series of discrepancies in the applicant's accounts of his life in Turkey:         "The Secretary of State has carefully considered all       matters put forward by and on behalf of Mr. K.   I       will first focus on the incident which it is claimed       occurred on the night of 23 November 1990.   The record       of the interview on 23 December shows Mr. K as claiming       he was carrying guns: it has since been maintained that       he was carrying literature.   If either account were true       it would, as you imply in your letter of 16 April,       support a claim of well-founded fear of persecution.       However, if either account were true the Secretary of       State would expect Mr. K to have been reasonably consistent       throughout, or to offer a reasonable explanation of any       material discrepancy.   It is the Secretary of State's       view that some asylum seekers will fabricate claims in       order to obtain asylum in the United Kingdom and that,       in the light of this, it is reasonable for him to examine       such discrepancies.         The Secretary of State has considered the attempt by       Mr. K on 9 April to explain the answer given at the first       interview.   He states:              'I never dealt with guns.   When the <completed            asylum questionnaire> was read back to me at            the airport they did not use the word 'guns'            they said political literature.'         The Secretary of State does not accept this explanation.       He understands that the two words in Turkish are quite       different and he does not believe that the interpreter       would have substituted one for the other.   In addition       the Secretary of State considers that the sense of the       statements ... above make it clear that he meant to refer       to guns and to emphasise the point that he had 'only       carried guns on 23 November 1990'.           The Secretary of State does not accept any of the claims       made about an incident which occurred on 23 November 1990.       He does not believe that Mr. K is wanted by the authorities       due to his membership of the TDKP or any other organisation.       He does not find Mr. K credible in this or in other matters       referred to below.   The accounts given by Mr. K and his       representatives are inconsistent in the manner discussed       above.   I now deal with the other matters which the       Secretary of State has taken into account in determining       Mr. K's lack of credibility.         When interviewed on 23 December Mr. K indicated that he       had never been detained.   He did refer to an incident in       which he was beaten for refusing to attend a mosque, but       to no other ill-treatment.   In your letter of 13 February       you say that he 'had been detained repeatedly in the past,       although always for short periods ...   On each occasion he       was tortured', and in your letter of 27 February you add       that Mr. K 'points to numerous scars ... all said to be the       result of torture'.   You also add the claim that Mr. K was       detained and tortured for 25 days in 1984.   The Secretary of       State notes that at the interview on 23 December Mr. K drew       attention to the fact that he had no scars resulting from       the beating he claims he received during the mosque incident.         The Secretary of State finds it inconsistent that Mr. K       should initially say he had not been detained and later       that he had been repeatedly - on 4 occasions - detained.       He also finds it inconsistent that Mr. K should initially       only refer to physical ill-treatment occurring on one       occasion, which left no scars, and later to repeated       torture which left numerous scars.   When these discrepancies       were put to Mr. K on 9 April he responded by giving further       details of the mosque incident.   Your letter of 16 April       refers to this discrepancy but does not seek to deal with it.       The Secretary of State considers that these discrepancies       cast doubt on the claim that Mr. K has been repeatedly       detained and tortured and does not therefore believe the       claim.         In your letter of 27 February you say, on the question of       torture, that the Immigration Service had made almost no       attempt to bring information about numerous police beatings       to light.   The Secretary of State is satisfied however that       questions asked during the interview on 23 December would       have prompted Mr. K to refer to such matters, if true.         Ill-treatment during military service may in itself or       taken with other matters give rise to a well-founded fear       of persecution.   The Secretary of State believes that Alevi       Kurds may suffer such ill-treatment in Turkey during military       service.   In your letter of 27 February you say that Mr. K       'evidently did quite well in the army'.   This is inconsistent       with the Medical Foundation's claim that Mr. K was often picked       on and beaten up.   When this was put to Mr. K he said that       he did not mention much about his military service to you,           and only remembered the ill-treatment when the Medical       Foundation mentioned torture.   You reiterated this explanation       in your letter of 16 April.   However, you devoted a paragraph       to this matter in your letter of 27 February.   If Mr. K had       often been picked on and beaten up the Secretary of State       believes he would have mentioned it to you and it is the       Secretary of State's view that the claim made to the Medical       Foundation is untrue.         The Secretary of State has considered claims which have been       made about Mr. K's political involvement.   He is also aware       that Alevi Kurds can suffer persecution.   He does not however       accept that involvement in illegal political organisations in       Turkey of itself gives rise to a fear of persecution, neither       does he accept that all Alevi Kurds from Turkey qualify for       refugee status irrespective of the details of their individual       cases.   In Mr. K's case the Secretary of State does not consider       on all of the evidence that he has a well-founded fear of       persecution in Turkey under the terms of the 1951 United       Nations Convention on Refugees.   He therefore refuses       Mr. K's application for asylum in the United Kingdom."         The applicant pursued his application for judicial review of the Secretary of State's decision.   Pending the High Court's decision the applicant was released in July 1991.   (He had apparently been detained pending examination of his asylum request and possible removal pursuant to paragraph 16 (1) of Schedule 2 to the Immigration Act 1971.)   On 17 October 1991 the applicant's application was struck out as the Secretary of State's letter of 27 June 1991 was deemed to be a fresh decision and therefore the original grant of leave for judicial review of his decision of 9 April 1991 was no longer effective.         Action to remove the applicant was deferred to await further submissions from his representative.   Two witness statements and letters from the applicant were received on 8 November 1991 and a Turkish newspaper dated 1 November 1991 was also received which referred to the events of 23 November 1989 described by the applicant and which identified him and gave the registration number of his bus. The Secretary of State agreed to review the decision to refuse the applicant's claim for asylum in view of this further information.         The Secretary of State was informed by the British Embassy in Ankara that the newspaper article was a forgery and that there was no article on that date in that newspaper referring to the applicant.         On 8 May 1992 the decision to refuse the applicant's claim for asylum was confirmed.   The newspaper article was referred to:         "If this article were genuine it would have caused us to       reconsider our view that Mr. Koç lacks credibility.   We sent the       newspaper to the British Embassy in Ankara who have now been able       to obtain an original of the newspaper as published and I enclose       a photocopy of the front page.   The newspaper is identical to       that which you submitted except that a completely different       article appears in place of the article about Mr. Koç.   I       understand that it is possible for a forger to erase an article       from a copy of a newspaper and substitute it for another which,       at first examination, may appear authentic.   We consider, in the       circumstances, that the newspaper you submitted has been altered       in this way.       We believe that the article about Mr. Koç in the newspaper you       submitted is a forgery and that the information it contains has       been fabricated.   Moreover, we do not believe that an article       about Mr. Koç ever appeared in a Turkish newspaper.         It is clear from this that Mr. Koç is willing to go to some       lengths to fabricate evidence to support his asylum claim and       this confirms our view that he lacks credibility.   We have       considered everything forwarded by him, and on his behalf,       including correspondence from Turkey which includes claims       suggesting that the Turkish authorities are seeking Mr. Koç.       However, we do not believe, taking all matters into account, that       there is a reasonable degree of likelihood that he will be       persecuted if returned to Turkey, and refusal of asylum therefore       remains appropriate."         The applicant's representatives stated that they received two complete copies of the newspaper in question, both originals, not copies, and that the piece in question was an untampered part of the whole sheet.   He was convinced that the article was genuine and that any alternative traced through the British Embassy must represent a different edition of the same issue.   It was also contended that the Secretary of State had failed to address other evidence such as four statements provided in support of the applicant by other asylum seekers.         The relevant domestic law and practice in asylum cases is set out in the Vilvarajah case (Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991, Series A no. 215, pp. 27-33, paras. 81-97).     COMPLAINTS         The applicant has complained that the Secretary of State's refusal to grant him asylum constitutes a breach of Article 3 of the Convention because he has a well-founded fear of persecution if he is returned to Turkey.   He has also alleged that he had no effective domestic remedies for his Article 3 claim, contrary to Article 13 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 9 March 1991 and registered on 20 June 1991.   On 22 October 1991 the President of the Commission decided under the circumstances not to indicate to the respondent Government, pursuant to Rule 36 of the Rules of Procedure, a stay of the applicant's removal to Turkey.         After a preliminary examination of the case by the Rapporteur, the Commission (First Chamber) considered the admissibility of the application on 1 April 1992 and decided to refer the case to the Plenary Commission.   On 2 April 1992 the Plenary Commission decided to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.   On notification the Government undertook not to remove the     applicant from the United Kingdom to Turkey until the Commission had had a further opportunity to examine the admissibility of the application in the light of the parties' submissions.   The Government's observations were submitted on 10 June 1992, to which the applicant's representative first replied on 20 July 1992 and, after an extension of the time-limit fixed for this purpose, then completed on 27 August and 11 September 1992.   In his observations the applicant withdrew an original complaint he had made under Article 5 of the Convention.     THE LAW   1.     The applicant has complained that the refusal to grant him asylum in the United Kingdom and the decision to send him back to Turkey, where he claims to face a real risk of persecution and torture, constitutes a breach of Article 3 (Art. 3) of the Convention, which provides as follows:         "No one shall be subjected to torture or to inhuman or       degrading treatment or punishment."         The Government first submitted that the applicant had not exhausted domestic remedies as is required by Article 26 (Art. 26) of the Convention, not having sought judicial review of the Secretary of State's renewed decision to refuse asylum on 27 June 1991.   They contended that as credibility and the risk of serious ill-treatment or even the right to life are essential issues in this case, the domestic courts would have subjected the asylum refusal to the most anxious scrutiny.         The Government next submitted that it was for the applicant to show the existence of substantial grounds for believing that there would be a real risk in his case of being subjected to inhuman and degrading treatment if he were to be returned to Turkey.   The Government's view was that none of the applicant's statements could be relied upon.   The Government did not regard the applicant's accounts as credible.   The applicant's various accounts had proved to be inconsistent and all the indications were that he had lied in order to procure entry into the United Kingdom.   Furthermore the Government did not accept that the applicant would face a particular risk of being subjected to treatment in contravention of Article 3 (Art. 3) as a result of his alleged membership of TDKP if he were returned to Turkey. In April 1991 a new Anti-Terrorism Act removed "crimes of thought" from the Turkish Penal Code.   This included the repeal of Articles 141, 142 and 163, which had effectively outlawed communism and religious-based political propaganda.   In effect the TDKP is no longer an illegal organisation and the Government believed that it would be therefore unlikely that its members would face prosecution (and therefore arrest and torture during detention).   In the circumstances, the Government submitted that the applicant's claim under Article 3 (Art. 3) is manifestly ill-founded.         The applicant submitted counsel's opinion to the effect that no further grounds could be formulated with any likelihood of success to challenge the Secretary of State's decision of 27 June 1991.   It was also stated that domestic law provided no effective remedy for testing the credibility of the applicant's claims.   Accordingly he claimed to have satisfied the requirements of Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies.           The applicant contended that the submissions of the Government regarding his credibility were untenable and could not be substantiated.   There was an unusual amount of material available in this application, and careful scrutiny of the totality of it rather than summaries or isolated points provided an overwhelmingly consistent picture.   The applicant could not accept that he would face no particular risk if returned to Turkey.   He had every reason to believe that he would be wanted by the authorities there for his political activities, and all the available evidence showed that politically active Kurds and members of the TDKP and similar organisations would still be routinely subjected to unacceptable levels of harassment and persecution.   The applicant referred to the Government's apparent suggestion that recent legal changes in Turkey now ensure freedom of thought and association in that country, and the TDKP is an open and legal organisation.   These suggestions were rejected by the applicant as being incredible.   The applicant submitted that detention, torture and killing of political opponents are unfortunately still much too frequent there, and the Government there faces a sustained armed campaign, as evidenced by regular reports from Amnesty International and others.   The greater leeway granted to the authorities in matters of detention under the new laws might indeed increase the risks of torture, as pointed out by Amnesty International.   The applicant, therefore, concluded that his case under Article 3 (Art. 3) is well- founded.         The Commission accepts the applicant's contention that, in the light of counsel's opinion, a further application for judicial review in relation to the Secretary of State's decision of 27 June 1991 in the present case would have been futile.   He may therefore be said to have complied with the requirements of Article 26 (Art. 26) of the Convention.         As regards the substance of the applicant's claim, the Commission recalls the constant case-law of the Convention organs "that expulsion by a Contracting State of an asylum seeker may give rise to an issue under Article 3 (Art. 3), and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned faced a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the country to which he was returned" (Eur. Court H.R., Vilvarajah and Others judgment of 30 October 1991, Series A no. 215, p. 34, para. 103).         The Commission's assessment of the risk of ill-treatment to which the applicant may be exposed must be made in the light of all the material placed before it.   This assessment must be a rigorous one in view of the absolute character of Article 3 (Art. 3) of the Convention (ibid., p. 36, paras. 107-108).         The Commission notes that the British asylum authorities have considered the applicant's claims carefully.   After each modification of his allegations and the submission of new material, such as medical evidence, his case has been fully reviewed.   However, the Secretary of State concluded that the inconsistencies in the applicant's story were so serious that it was not credible.   In the circumstances of the present case the Commission finds that the applicant has not shown substantial grounds that he faces a real risk of serious ill-treatment if he is returned to Turkey.   The Commission is particularly struck by the pronouncements of the applicant and his representative at the   outset of the asylum proceedings that the applicant had suffered beatings which had left no scars and had not had difficulties during his military service.   However this was later changed to a claim of severe ill-treatment, even during military service, leaving clear scarring, which has not been confirmed by any medical evidence.   No convincing explanation has been provided by the applicant or his representative for such an important discrepancy.   The Commission also notes the unresolved question of a possible forgery of a Turkish newspaper report on the applicant's political activities.         The Commission also observes that, should the applicant be returned to Turkey, he can lodge an application with the Commission under Article 25 (Art. 25) of the Convention in respect of any alleged violation of Article 3 (Art. 3) of the Convention by the Turkish authorities.         It follows that this part of the application is manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant has also complained that he had no effective domestic remedy for his Article 3 (Art. 3) complaint, contrary to Article 13 (Art. 13) of the Convention, which reads as follows:         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy before a       national authority notwithstanding that the violation has been       committed by persons acting in an official capacity."         However, according to the constant case-law of the Convention organs, "Article 13 (Art. 13) cannot reasonably be interpreted so as to require a remedy in domestic law in respect of any supposed grievance under the Convention that an individual may have, no matter how unmeritorious his complaint may be: the grievance must be an arguable one in terms of the Convention" (Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).         The Commission has found the applicant's substantive complaint under Article 3 (Art. 3) of the Convention to be manifestly ill-founded and, in the light of the reasons for this decision, it also finds that the applicant has no arguable claim under Article 3 (Art. 3) warranting an effective domestic remedy pursuant to Article 13 (Art. 13) of the Convention.   It follows that this aspect of the case is also manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, by a majority,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Commission             President of the Commission           (H.C. KRÜGER)                          (C.A. NØRGAARD)