On December 4, 2019, the case was won in the UN Committee against Torture.

Заголовок: On December 4, 2019, the case was won in the UN Committee against Torture. Сведения: 2024-07-03 05:03:50

Ismet Bakay against Morocco. Decision of the Committee against Torture of December 4, 2019 Communication No. 826/2017.

In 2015, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Morocco.

The applicant claimed that, if extradited to Turkey, he risked being tortured by the Turkish authorities in violation of his rights under article 3 of the Convention.

The Committee's legal position: The Committee first of all recalls that the prohibition of torture is absolute and non-derogable, and no exceptional circumstances can be invoked by the State party to justify torture. The principle of non-refoulement of persons to another State, enshrined in article 3 of the Convention [against Torture], is also absolute if there are serious grounds to believe that they may be in danger of being subjected to torture there (paragraph 7.2 of the Decision).

The Committee recalls that, in accordance with article 3, paragraph 2, of the Convention, States parties must take into account all relevant circumstances, including the existence in that State of a consistent pattern of gross, flagrant and mass violations of human rights... It follows from this that the existence of a practice of gross, flagrant or mass violations of human rights in a particular country is not in itself a sufficient reason to conclude that upon return to this country the applicant will be in danger of being subjected to torture; Additional grounds must be given to confirm that such a danger would threaten the person personally (See: Al-Hajj Ali v. Morocco, paragraph 8.3; R.A.I. v. Morocco, paragraph 7.2; and L.M. v. Canada (CAT/C/63/D/488/2012), paragraph 11.3.). In turn, the absence of a consistent practice of egregious violations of human rights also does not mean that the person concerned cannot be subjected to torture, taking into account the specific circumstances of his case (paragraph 7.3 of the Decision) (See: Kalinichenko v. Morocco, paragraph 15.3.).

The Committee recalls its general comment No. 4 (2017) on the implementation of article 3 of the Convention in the context of article 22, according to which the obligation of non-refoulement exists in all cases where there are "serious grounds" to believe that the person concerned would be in danger of being subjected to torture in the State to which he or she is awaiting deportation, either as an individual or in a group that may be at risk of being subjected to torture in the destination State, as well as on its past decisions, according to which "serious grounds" exist every time, when the risk of torture is "predictable, personal, present and real." He also recalls that the burden of proof rests on the applicant, who must present a reasoned statement of the case, i.e. convincing arguments to confirm that the risk of being subjected to torture is predictable, personal, existing and real for him. However, if the applicant is in a situation where he is unable to provide more detailed information about his case, the burden of proof falls on the opposite party and it is up to the State party concerned to investigate the allegations and verify the information that underlie the communication. The Committee relies heavily on the findings of fact prepared by the authorities of the said State party; At the same time, he does not consider himself bound by such conclusions and freely evaluates the information at his disposal in accordance with article 22, paragraph 4, of the Convention, taking into account all the circumstances relevant to each case (paragraph 7.4 of the Decision).

The Committee's assessment of the factual circumstances of the case: the applicant's argument was taken into account that, if extradited to Turkey, he would be in serious danger of being subjected to torture because of his alleged affiliation with the Hizmet movement. In this regard, the Committee noted that the complainant was being investigated to determine his affiliation with this movement, as well as that, according to reports appearing in the case file, persons like the complainant often become victims of torture and ill-treatment during detention (paragraph 7.5 of the Decision).

The Committee should take into account the current human rights situation in Turkey, including how it was affected by the state of emergency (it was lifted in July 2018, but the duration of the restrictive measures provided for by it was extended through the adoption of a number of legislative measures). The Committee noted that the repeated extension of the state of emergency in Turkey has led to serious violations of the human rights of hundreds of thousands of people, including arbitrary deprivation of the right to work and freedom of movement, torture and ill-treatment, arbitrary detention and violation of the right to freedom of association and expression. In this regard, the Committee referred to its concluding observations on Turkey's fourth periodic report (CAT/C/TUR/CO/4), in paragraph 9 of which it noted with concern the significant discrepancy between the large number of complaints of torture by non-governmental organizations and the data provided by the State party in its periodic report ..., In this connection, it was suggested that not all reports of torture were investigated during the reporting period. In paragraph 19 of these concluding observations, the Committee expressed concern about the recent amendments to the Code of Criminal Procedure, which gave the police greater powers to detain persons without appropriate judicial supervision. In paragraph 33, the Committee noted with regret the lack of complete information on cases of suicide and other sudden deaths that occurred in places of detention during the reporting period (paragraph 7.6 of the Decision).

The Committee noted that, according to the complainant, as a result of Turkey's imposition of a state of emergency on 20 July 2016, the risk of torture against persons accused of belonging to a terrorist group increased during their detention. The Committee recognized that the above-mentioned concluding observations were adopted before the date of the state of emergency. However, the Committee recalled that after the July 2016 There was an attempted coup in Turkey, he expressed concern about the current situation in a follow-up letter sent to the State party on August 31, 2016, as well as that reports published after the state of emergency on the situation of human rights and the prevention of torture in Turkey indicated that concern, previously as expressed by the Committee, it remains relevant (paragraph 7.7 of the Decision).

The Committee took into account the applicant's arguments about the danger of persecution for his political activities due to the fact that he is considered one of the participants in the Hizmet movement, which is considered guilty of committing an attempted coup in July 2016. The Committee noted that, according to its 2018 report, the Office of the United Nations High Commissioner for Human Rights [hereinafter also referred to as OHCHR] had access to reliable information on the use of torture and ill-treatment during pre-trial detention as part of the Turkish authorities' response to the coup attempt in July 2016. The above-mentioned OHCHR report documented cases of various forms of torture and ill-treatment in places of detention, including beatings, threats of sexual violence, the use of sexual violence and electroshock devices, as well as simulated drowning. These acts of torture were usually aimed at obtaining confessions or forcing others to denounce others as part of an investigation into the facts related to the attempted coup. In his report on the mission to Turkey, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment noted that after the coup attempt, the use of torture became widespread. The Special Rapporteur also reported that the number of investigations and prosecutions in connection with reports of torture or ill-treatment is insignificant compared to the alleged number of such violations, which indicates a lack of commitment by the Turkish authorities to investigate such reports (paragraph 7.8 of the Decision).

With regard to the immediate impact of the state of emergency imposed on 20 July 2016, the Committee took note of the concern of the Office of the High Commissioner for Human Rights about the negative impact of the measures taken on protection from torture and ill-treatment. In particular, OHCHR mentioned restrictions that could be imposed on communication between detainees and their lawyers, the extension of the maximum period of police custody, the closure of some independent torture prevention mechanisms and the misuse of pre-trial detention. After repeated extensions of the state of emergency by the Turkish authorities, it was officially lifted on July 19, 2018. In a letter dated August 8, 2018, the Turkish authorities informed the Council of Europe that the state of emergency ended on July 19, 2018, when the deadline set by decision No. 1182 expired, and in this regard, the Government of the Republic of Turkey decided to withdraw the notification of derogation from the provisions of the European Convention on Human Rights. However, a number of legislative measures were adopted that extended the restrictive measures taken during the state of emergency, such as the possibility of extending the period of police custody to 12 days (paragraph 7.9 of the Decision).

With regard to the applicant's case, the Committee noted that, in making a positive decision on extradition, the Court of Cassation [Morocco] did not carry out any assessment of the risk of torture to the applicant as a result of such extradition, taking into account the situation in Turkey after the coup attempt in July 2016, in particular, taking into account the situation of persons who, as and the applicant, in fact or presumably belong to the Hizmet movement. The Committee stressed that the authorities of the State party limited themselves to stating the fact that the request of the Turkish authorities for the extradition of the applicant corresponded in form and substance to the Convention on Mutual Legal Assistance (concluded by these two countries on May 15, 1989 and prior to the ratification of the Convention [against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment] by the State party 21 June 1993) and that they had not carried out the assessment of the risk of torture provided for in article 3 of the Convention against the applicant in the event of his extradition to Turkey. The Committee recalled that the main purpose of the Convention is the prevention of torture (paragraph 7.10 of the Decision) (See: Alan v. Switzerland (CAT/C/16/D/21/1995), paragraph 11.5.).

In the light of the above and taking into account the applicant's alleged or actual membership in the Hizmet movement, the Committee considered - It was up to the State party to carry out an individual assessment of the personal and real danger to which the applicant might be exposed in Turkey, taking into account, in particular, the documented treatment of persons associated with this movement by the Turkish authorities, and not relying on the fact that the extradition request was sent on the basis of an agreement between the two countries and that The crimes imputed to the applicant are ordinary crimes, the punishment for which is provided for by the legislation of Morocco. The Committee also drew attention to the fact that article 721 of the Moroccan Code of Criminal Procedure does not specifically mention the risk of torture and ill-treatment in the event of extradition, but only the risk of deterioration of the personal situation of a person in respect of whom extradition was requested for any reason related to his race, religion, nationality or political beliefs, if the crime in connection with which it is requested is qualified by the State party as a political crime or a crime related to political crimes. In the present case, taking into account the assessment carried out by the Court of Cassation, which is authorized to rule on the issue of extradition, the Committee was unable to conclude that this court had considered arguments that there was currently a foreseeable, real and personal risk of torture for the applicant in the event of his extradition to Turkey (paragraph 7.11 of the Decision) (Erdogan v. Morocco, paragraph 9.11; Ender v. Morocco (CAT/C/66/D/845/2017), paragraph 7.11; and Aiden v. Morocco (CAT/C/66/D/846/2017), paragraph 8.11.).

The Committee's conclusions: The extradition of the applicant to Turkey would constitute a violation by the State party of article 3 of the Convention (paragraph 8 of the Decision).



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