Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15608/89

by G.

against the United Kingdom

The European Commission of Human Rights sitting in private on

7 December 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 12 October 1989

by G. against the United Kingdom and registered on 12 October 1989

under file No. 15608/89;

Having regard to:

- reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 15 February 1990 to bring

the application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government on

24 April 1990 and the observations in reply submitted

by the applicant on 11 June 1990;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of Turkey, born in 1965 in A.,

Turkey. The present application arises out of the applicant's removal

from the United Kingdom to Turkey on 12 October 1989. He is

represented in the proceedings before the Commission by Mr. Michael

Hanley, of Messrs. Miller Wilson, Solicitors, London.

The facts of the present case, as submitted by the parties,

may be summarised as follows:

The applicant is of Kurdish ethnic origin and Alevi by

religion. He states that his family was forced to leave the village

of his birth (K.) in the mid 1970s, following an armed clash.

He also alleges that his father was arrested and tortured by the local

police, resulting in his death.

The applicant claims that he was arrested and detained on

three occasions, twice in 1984 and once in 1988, for a period of three

days in various police stations. He alleges that he was assaulted by

the police on these occasions. He avers that he has never committed

any criminal offence.

He states that he is a sympathiser of the illegal movement

Halkan Kurtulusu which supports Kurdish rights and which is a

proscribed organisation.

The applicant went to the United Kingdom on 18 May 1989 and

immediately made an application for asylum, pursuant to the Convention

Relating to the Status of Refugees 1951. He was detained in HM Prison

Winchester.

He was, inter alia, interviewed by an immigration officer on

20 May 1989 and completed a political asylum questionnaire. He

disputed that the questionnaire provided an accurate record of what he

said during the interview with the immigration officer. His

solicitors subsequently sent a letter to the Home Office on 14 June

1989, recording various inaccuracies. He was served with a decision

by the Secretary of State, refusing his asylum application on 27 June

1989. The applicant made an application for leave to move for

judicial review on 30 June 1989. This application was withdrawn on

13 July 1989, following a Home Office undertaking to reconsider his

case. The applicant was then re-interviewed on 19 July 1989 by a Home

Office executive officer on behalf of the Secretary of State for the

Home Department.

On 10 August 1989 he was served with a "Minded to Refuse"

Notice. On 14 August 1989 the Secretary of State confirmed his

decision to reject the application for asylum. A further application

was made for leave to move for judicial review. It was rejected by

the Divisional Court on 18 August 1989.

Following this refusal, the applicant's case was referred to

the London representative of the United Nations High Commissioner for

Refugees (UNHCR). The UNHCR, while expressing the opinion that the

applicant could not be regarded as a mere "economic migrant",

considered that the available information was not sufficient to

conclude that the applicant had a well-founded fear of persecution

within the meaning of the 1951 Convention.

While in Winchester prison the applicant was examined by a

doctor from the Medical Foundation for the Care of Victims of Torture.

The report indicated that the applicant had various scars on his body

and concluded as follows:

"Mr. G. gave a clear and concise account of his

experiences and made no attempt to exaggerate or

over-dramatise. I considered him to be a reliable witness

and I have absolutely no reason to doubt the credibility

of his statement. He has all the usual symptoms of

depression and in addition has clear signs of a fairly

severe anxiety state, namely the tremor of his hands and

eyelids, the split apical first heart sound, a very rapid

heart rate of 100 and brisk tendon reflexes. The scars

which I have described, in my opinion, bear out his story of

having been beaten."

The applicant was removed from the United Kingdom to Turkey

on 12 October 1989. The Government stated that the applicant was

accompanied by two experienced escorts provided by the Metropolitan

Police. The police said that shortly before the aircraft was to

depart the applicant began to create a disturbance and was restrained

by the use of handcuffs. These were removed about an hour after

departure by which time the officers judged that he was sufficiently

calm not to pose a threat to himself or other passengers. At no time

were any drugs administered and a minimum of force was employed to

secure the safety of the aircraft and its passengers. On arrival at

Istanbul, the applicant left the aircraft in the company of an airline

representative. This is normal international practice. He was not

handed over to the Turkish authorities by the escorts. Some two hours

later, the applicant telephoned the escorts at their hotel to inform

them that he had been released by the authorities and to enquire about

some missing baggage.

The applicant's representative refuted this version of the

return. He stated that the applicant was handed directly to a Turkish

policeman and his passport handed to the Turkish police. He was kept

for two days of questioning at the Gayretteppe police station. His

interpreter in England had managed to speak to him on the second day

after being informed by a relative that he had not been in contact

with his family. On the telephone to the interpreter the applicant

spoke only briefly and the interpreter formed the impression that the

applicant had been unable to speak freely and had sounded frightened.

The applicant's legal representative stated in January 1990

that the applicant was in hiding in Turkey. The applicant claimed to

be too frightened to attend the police station to collect his passport

which was taken by the Turkish authorities. He also stated that the

police made inquiries at his mother's home and that as a result she,

too, had gone into hiding.

The Government queried whether the applicant was at risk after

receiving papers via the Commission showing that the applicant is

working as a waiter in a specific town. In reply, the applicant's

representative contended that this does not automatically mean that

the Turkish authorities know where the applicant is.

COMPLAINTS

The applicant complains that his removal to Turkey constituted

a breach of Article 3 of the Convention. He claims, with reference to

his medical report, that he has legitimate cause to fear treatment

contrary to Article 3 in Turkey.

He also complains of a breach of Article 13 of the

Convention. In this respect he points out that under Section 13 of

the Immigration Act 1971 he did not have a right of appeal against the

decision rejecting his application for asylum and refusing him leave

to enter the United Kingdom until he had been removed from the

country. He submits that a right of appeal after removal is not an

effective remedy for purposes of this provision. He further submits

that judicial review proceedings are ineffective since the High Court

has no jurisdiction to examine the merits of his case.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 October 1989 and

registered on the same day. The Commission first examined the

application on 12 October 1989 and refused a request that an

indication be given to the respondent Government under Rule 36 of the

Rules of Procedure not to remove the applicant to Turkey.

After a preliminary examination of the case by the Rapporteur,

the Commission considered the admissibility of the application on

15 February 1990. It decided to communicate the application to the

respondent Government pursuant to Rule 42 para. 2 (b) (old version) of

its Rules of Procedure. The Government submitted their observations

on 24 April 1990 to which the applicant replied on 11 June 1990, after

being granted legal aid by the Commission on 18 May 1990.

THE LAW

1. The applicant has complained that his removal to Turkey by the

United Kingdom constituted a breach of Article 3 (Art. 3) of the

Convention, which prohibits torture, or inhuman and degrading

treatment. He considered that he has a legitimate cause to fear

treatment in breach of Article 3 (Art. 3) in that country because of

various factors:- his support for an illegal Kurdish organisation,

the previous ill-treatment he experienced, the acknowledged refugee

status of others from the applicant's home village and the fact that

he fears to return to his family house or collect his passport from

the police. Although the applicant has found work, his representative

submitted that this does not automatically mean that the Turkish

authorities are aware of the applicant's whereabouts or are able to

locate him.

The Government replied that there were no grounds, prior to

12 October 1989, for considering that the applicant's complaint was

substantiated and this has been borne out by the fact that he has not

claimed to have been ill-treated since his return to Turkey and,

contrary to his statement, he is not in hiding but working as a waiter

in a specific town. Moreover, the applicant has the possibility of

lodging an application to the Commission against Turkey, pursuant to

Article 25 (Art. 25) of the Convention, should he experience a breach

of the Convention in that country.

The Commission recalls that according to its established

case-law the right to asylum and freedom from expulsion are not as

such included among the rights and freedoms mentioned in the

Convention, but that the expulsion of a person may nevertheless, in

certain exceptional circumstances, raise an issue under the

Convention, and in particular under Article 3 (Art. 3), where substantial

grounds have been shown for believing that the person concerned faces

a real risk of being subjected to torture or to inhuman or degrading

treatment or punishment in the State to which he is to be sent (see

inter alia Eur. Court H.R., Soering judgment of 7 July 1989, Series A

no. 161, para. 91).

In the present case the Commission does not consider that the

applicant has shown that he had substantial grounds for fearing that

he would be subjected to treatment in breach of Article 3 (Art. 3)

of the Convention on his return to Turkey. In reaching this

conclusion the Commission has had regard to the fact that the London

representative of the United Nations High Commissioner for Refugees

did not support the applicant's claim that he was a refugee with a

well-founded fear of persecution. Furthermore, the Commission notes

that the applicant does not allege that he was maltreated by the

police during his detention and interrogation on his return to Turkey

on 12 October 1989 or thereafter. He appears to be living a

relatively normal life working as a waiter, even if he is taking care

to avoid the authorities. Finally, the Commission attaches importance

to the fact that Turkey is a party to the European Convention on Human

Rights and has accepted the right of individual petition under Article

25 (Art. 25) of the Convention with the result that it is now open to the

applicant to bring an application before the Commission in respect of

any violation of one of the Convention provisions by the Turkish

authorities.

It follows that the applicant's complaint under this provision

must be rejected as manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

2. The applicant further complains under Article 13 (Art. 13) of the

Convention that there exists under United Kingdom law no effective

remedy in respect of his complaint under Article 3 (Art. 3) of the

Convention.

The Commission recalls that an issue can only arise under this

provision in respect of an "arguable" claim that there has been a

breach of one of the provisions of the Convention ( see Eur. Court

H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131,

p. 39, para. 71). The Commission refers to its finding above that the

applicant has not shown that there were substantial grounds for his

fear that he would be subjected to treatment in breach of Article 3

(Art. 3) on his return to Turkey. The applicant's complaint under

this provision does not therefore give rise to an "arguable" claim

for purpose of Article 13 (Art. 13). It follows that this complaint

must also be rejected as being manifestly ill-founded, within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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G. v. the UNITED KINGDOM

G. v. the UNITED KINGDOM