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

           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)