Entscheidung des UN-Ausschusses gegen Folter zur drohenden Abschiebung eines türkischen Staatsbürgers aus Deutschland. (Leitsatz der Redaktion)
The issue before the Committee is whether the forced return of the author is Turkey would violate the state partys obligation under article 3 of the Convention not to expel or to return a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
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 his 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 his return to that country; specific grounds must exist indicating that he 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. In the present case, the Committee notes that the State party draws attention to a lack of evidence about the complainants participation in a PKK training camp in the Netherlands in 1994, and to his failure to raise this claim until late in the asylum proceedings. It equally notes the complainants explanations relating to the difficulty of resenting witnesses from the PKK, his fear to reveal his claimed PKK membership, punishable under German law, as well as the documentation and testimony he submitted ins support of his claims.
On the burden of proof, the Committee recalls that it is normally for the complainant to present an arguable case and that the risk of torture must be assessed on grounds that go beyond mere theory and suspicion. Although the risk does not have to meet the test of being highly probable, the Committee considers that the complainant has not provided sufficiently reliable evidence which would justify a shift of the burden of proof to the State party. In particular, it observes that the affidavit by F.S. merely corroborates the complainants claim that he was introduced as a "guerilla candidate" at the Halim-Dener-Festival, without proving this claim, his participation in the training camp or PKK membership. Similarly, the letter dated 16 February 2003 of the International Association for Human Rights of the Kurds, while stating that is was not implausible that the complainant had temporarily been exempted form military PKK training in Turkey, falls short of proving these claims. In the absence of a prima facie case for his participation in the PKK training camp, the Committee concludes that the complainant cannot reasonably claim the benefit of the doubt regarding these claims. Moreover, the Committee observes that it is not competent to pronounce itself on the standard of proof applied by German tribunals.
With regard to the complainants conviction for participation in a highway blockade by PKK sympathizers in (...) the committee considers that, even if the Turkish authorities knew about these events, such participation does not amount to the type of activity which would appear to make the complainant particularly vulnerable to the risk of being subjected to torture upon return to Turkey.
Regarding the complainants allegation that he was tortured during police arrest in (...) (Turkey), the Committee observes that these allegations refer to events dating from (...) and thus to events which did not occur in the recent past.
In addition, the complainant has not submitted any medical evidence which would confirm possible after-effects or otherwise support his claim that he was tortured by Turkish police.
The committee emphasizes that considerable weight must be attached to the findings of fact by the German authorities and courts and notes that proceedings are still pending before the Frankfurt administrative Court with regard to his application to reopen asylum proceedings. However, taking into account that the Higher administrative court of Hessen dismissed the complainants first asylum application by a final decision, the complainants fresh claims relating to his alleged participation in a PKK training camp have not been sufficiently corroborated (see para. 13.5) to justify further postponing the Committees decision in his complaint, pending the outcome of the proceedings before the Frankfurt administrative Court. In this regard, the committee notes that both parties have requested the Committee to make a final determination on the complaint (see paras. 11.7 and 12.2) and emphasizes that the complainant exhausted domestic remedies in the proceedings for interim relief and that only this part of the second set of asylum proceedings had suspensive effect.
The Committee concludes that, in the specific circumstances of the case, the complainant has failed to establish a foreseeable, real and personal risk of being tortured if he were to be returned to Turkey. The Committee welcomes the state partys readiness to monitor the complainants situation following his return to Turkey and requests it to keep the Committee informed about said situation.