CAT/C/45/D/349/2008
at risk of being treated by public officials in a manner that would amount to a breach of
article 3 of the Convention fails to rise to the basic level of substantiation required for
purposes of admissibility. However, the Committee considers that the complainant has
provided sufficient evidence to permit it to consider the case on the merits.
Consideration of the merits
6.1. The issue before the Committee is whether the forced return of the complainant to
Turkey would violate the State party’s obligation under article 3 of the Convention not to
expel or return a person to another State where there are substantial grounds for believing
that she would be in danger of being subjected to torture.
6.2. The Committee must decide, pursuant to paragraph 1 of article 3, whether there are
substantial grounds for believing that the complainant would be in danger of being
subjected to torture upon return to Turkey. In reaching this decision, the Committee must
take into account all relevant considerations, pursuant to article 3, paragraph 2, including
the existence of a consistent pattern of gross, flagrant or mass violations of human rights. In
this regard, the Committee notes the State party's argument that certain improvements have
been made to the human rights situation, including through a zero-tolerance policy and
introduction of mechanisms for complaints against torture. It also notes the complainant's
argument that the above changes have not reduced the number of reported incidents of
torture in Turkey (172 and 434 torture complaints respectively registered with a local NGO
in 2007 and in 2008)3.
6.3. The aim of the present determination, however, is to establish whether the
complainant would be personally at risk of being subjected to torture in Turkey after her
return. Even if a consistent pattern of gross, flagrant or mass violations of human rights
existed in Turkey, such existence would not as such constitute a sufficient ground for
determining that the complainant would be in danger of being subjected to torture after her
return to that country; specific grounds must exist indicating that she would be personally at
risk. Similarly, the absence of a consistent pattern of gross violations of human rights does
not mean that a person cannot be considered to be in danger of being subjected to torture in
his or her specific circumstances..4
6.4. The Committee recalls its general comment on the implementation of article 3 in
which it states that the risk of torture “must be assessed on grounds that go beyond mere
theory or suspicion. However the risk does not have to meet the test of being highly
probable”.5
6.5. The Committee notes that the State party does not dispute the complainant’s
involvement with the PKK, but rather argues that her involvement was at a low level. It
notes that while the State party denies that she would be of much interest to the Turkish
authorities now, it admits, as did the Migration Board itself, that if she is pursued by the
Turkish authorities, there is a risk that she will be arrested, detained pending trial and
sentenced to a long term of imprisonment (para. 3.9). In addition, the State party indicates
that it takes no issue with the complainant’s failure to provide direct evidence of her claim
that she is wanted by the authorities. It also notes that the complainant has provided
information on a criminal case initiated against her, number 2005/298 (para. 4.2), which,
3
Letter of the Diyarbakir Branch of Human Rights Association in Turkey submitted by the
complainant.
4
See decision MAK v. Germany, 214/2002.
5
A/53/44, annex IX, para.6.
7