The author of the communication is D, a national of Türkiye born in 1991. She submits that by deporting her to Türkiye, the State Party would violate her rights under article 7 of the Covenant. She is represented by counsel. The Optional Protocol entered into force for the State Party on 23 March 1976.
On 12 July 2022, the Committee, acting through its Special Rapporteurs on new communications and interim measures, requested the State Party to refrain from deporting the author to Türkiye while her case was under consideration by the Committee.
On 10 February 2023, the State Party requested to lift interim measures. On 30 January 2024, the Committee, acting through its Special Rapporteurs on new communications and interim measures, denied the State Party’s request. The author remains in Sweden.
Facts as presented by the author
The author is a transgender woman of Kurdish ethnicity. During her early childhood in Türkiye, she felt like a girl and did not identify with traditional gender norms. She underwent hormone treatment and applied for gender recognition as a female. However, the authorities in Türkiye sent the confirmation of her application to her family’s address, instead of her own address. Her family members then held a meeting and decided that she would be killed. They then threatened the author.
In 2015, the author began working in Ankara for the non-governmental organization Pink Life, where she advocated for the rights of transgender individuals and organized the yearly Pride parades in Ankara and Istanbul. In 2015, she also became a board member of Amnesty International. She has also written articles for another non-governmental organization, Kaos GL, concerning police brutality against LGBTQ persons.
During the Pride parade of 2017, the author was detained by police in Türkiye and was physically assaulted during her detention. She was subsequently prosecuted for having participated in an unlawful assembly.
From 2012 to 2014, the author was a guerrilla fighter and a member of the banned Kurdistan Workers’ Party (PKK). A video of her was circulated online; it depicted her dancing a Kurdish dance to a pro-PKK song. An LGBTQ organization called AK-LGBTI then accused the author on social media of being a sympathizer of PKK. The author was questioned by police about the video.
The author is also an active member of the pro-Kurdish People’s Democratic Party (HDP). In conjunction with her activities for that party, the author gave a speech before the Parliament of Türkiye after the killing of Hande Kader, a transgender woman and activist. The author frequently attended meetings with representatives of HDP regarding the rights of LGBTQ persons.
In 2017, the author entered Sweden and applied for asylum. On 24 April 2019 and 30 October 2019, the Migration Agency held two interviews with the author, in the presence of her counsel and an interpreter. The author was asked about her reasons for seeking asylum.
On 3 April 2020, the Migration Agency rejected the author’s asylum application, making the following findings. There was no specific criminalization or prohibition against LGBTQ persons in Türkiye, although certain provisions of criminal law (e.g. concerning “unnatural sexual behaviour”) could be used against them. There were legal avenues for addressing harassment or violence against LGBTQ persons, including by the police. While discrimination and stigmatization affected LGBTQ persons in Türkiye, those circumstances were not of such intensity as to amount to persecution. Country reports did not indicate that the authorities were unable or unwilling to offer protection to LGBTQ persons. Moreover, the general situation for persons of Kurdish ethnicity in Türkiye did not constitute a general need to grant them international protection.
The Migration Agency noted that neither of the organizations that the author had been working for in Türkiye were illegal and that the author had not held positions of leadership in them. Although some of her employment activities could be described as critical of the Government of Türkiye, the author had had open contact with the authorities in the course of her work and had openly participated in public gatherings and demonstrations. That suggested that she could not have felt a fear of serious repressive measures from the authorities at the time.
Regarding the author’s statement that in 2017, she had participated in an unlawful demonstration, the Migration Agency noted her assertion that when the police asked her to disperse, she had not done so, following which the police had intervened. According to the Migration Agency, it could not be assumed that the actions of the police represented a punishment for the author’s previous political activities. Moreover, the rejection of the request to hold the demonstration did not suggest that the author was personally of interest to the authorities on account of her political activities. After the demonstration, the author had remained in Türkiye for three months without encountering any problems.
The Migration Agency considered that although the author had been accused of supporting the PKK on social media, her accuser was not a representative of the Government. Furthermore, the author had remained in Türkiye for approximately a year and a half after the accusation was made. She had not provided sufficient evidence that the authorities suspected her of supporting the PKK or were aware of her previous membership in the PKK.
The Migration Agency noted the author’s assertion that she had appeared in election posters of HDP during the elections of 2015. However, she had not shown that she had an official position or a prominent voice within the HDP. There was no evidence that she was sought for any alleged crime in Türkiye. The author had not plausibly demonstrated that the authorities in Türkiye suspected or accused her of any illegal political affiliation or that she would be of interest to the authorities on account of any other activism. She could reasonably be expected to turn to the authorities for protection from individual threats.
The Migration Agency also observed that the author had been able to obtain a passport in mid-2017 and left Türkiye lawfully using a visa in her national passport, about two years after having shown support for HDP. The author had not credibly explained why she would have been issued a passport and been allowed to leave the country if the authorities harboured such grave suspicions about her. While the author asserted that a travel ban had only been applied to suspected government critics in 2018, she had not provided any source for that assertion. Country reports indicated that the travel ban had in fact been brought into effect before then. Country information also indicated that the authorities in Türkiye did not issue passports to persons under general security controls, and that persons accused of terrorism or opposition to the Government had considerable difficulties in traveling abroad.
The author appealed against the decision of the Migration Agency to the Migration Court. She was represented by counsel of her own choosing. The Migration Court denied her request for an oral hearing. The author raised new information and evidence in her appeal. She stated, for example, that two of her friends had been detained in connection with the so-called Kobane protests of 2014, and that she had criticized the Government of Türkiye during interviews regarding the protests. The author also stated that she had received new threats from her family.
On 15 December 2020, the Migration Court rejected the author’s appeal. It did not question that the author had been politically active in favour of the rights of women and transgender persons. Similarly, it did not question her participation in protests or the unlawful assembly in 2017. However, all of those events had taken place several years ago, and there was no indication that the authorities had been subjected to anything untoward in Türkiye because of those events, despite the fact that the author had previously been politically active for several years. While she claimed to be suspected of membership in the PKK, she had never been interrogated, summoned to the police or formally notified of suspicions of such memberships in Türkiye. The Migration Court noted again that the author had been able to obtain a passport and leave the country without any problems.
In relation to her family, the Migration Court considered that the author could seek protection from the authorities. The Migration Court did not call into question the author’s claim that people she knew had been arrested in Türkiye after her arrival in Sweden. However, it noted that no objective or concrete circumstances had emerged to suggest that, in a forward-looking assessment, the author would attract the attention of the authorities in Türkiye or would be subjected to any ill-treatment because of her previous political engagement. It also had not been shown that the author had such strong links to the people who had been detained that she would risk attracting attention because of those links. Nor were there any objective or concrete circumstances to suggest that the author’s activities in Sweden had come to the attention of the authorities in Türkiye. HDP was a lawful political opposition party with representatives in Parliament. The author did not have a formal or prominent role within the party. She had not been prosecuted or convicted for participating in the unlawful demonstration of 2017.
The Migration Court also responded to the author’s claims regarding the risk she would face in relation to her gender identity. The Migration Court did not question her gender identity as a woman and noted that there was discrimination and harassment of transgender and LGBTIQ persons in Türkiye. However, country information indicated that the situation in and of itself did not constitute grounds for international protection. Therefore, the author’s personal circumstances had to be assessed. The claims relating to the author’s family members concerned private individuals whose actions were not sanctioned by the authorities, who, despite certain shortcomings, generally had the will and the ability to protect inhabitants of Türkiye against criminal acts by private individuals. The author had not plausibly demonstrated that she could not avail herself of that protection. She had not contacted either the police or other law enforcement authorities in Sweden to report any issues in relation to her family. It had not been shown that the individuals who posed a threat to her had such influence or power over her that the author would not be able to avail herself of the protection of the authorities if she were to return to Türkiye. There was no evidence that she would be denied assistance or treated incorrectly by the police.
The author applied to the Migration Court of Appeal for leave to appeal against the decision of the Migration Court. The author claimed that she had exited Türkiye with a colleague from Pink Life, who had also applied for and been granted asylum in Sweden. They had applied for passports and travelled to Sweden together. The colleague had been suspected of committing a terror-related crime in Türkiye but had been able to leave the country without problems. The author also argued that she could not reasonably be expected to turn to the authorities in Türkiye while also having to hide her political activities and beliefs, especially with respect to the PKK. On 15 February 2021, the Migration Court of Appeal rejected the author’s application for leave to appeal.
On 1 April 2021, the author applied to the Migration Agency for a residence permit and re-examination of her asylum application in the light of new circumstances constituting an impediment to her expulsion. Her application was based on an article published on various news sites, according to which a representative of the Justice and Development Party (AKP) in Türkiye had accused her in the media of supporting the PKK and had stated that proof would be submitted to the authorities in Türkiye.
On 17 September 2021, the Migration Agency denied the author’s application for re-examination. It considered that the author’s new claims were additions to and modifications of previously examined circumstances and were not new circumstances of the kind required by law. The author had been accused by the LGBTQ advocacy organization of having links to the PKK as early as 2016. Likewise, there were no concrete indications that because of the article she mentioned, she would now be suspected by the authorities in Türkiye of collaborating with the PKK or that she was at that time accused of any crime.
On 2 and 25 November 2021, respectively, the Migration Court and the Migration Court of Appeal upheld the decision of the Migration Agency.
On 2 June 2022, the European Court of Human Rights denied the author’s request for interim measures and rejected her application concerning the same matter.3 In a single-judge decision, the Court stated that the conditions of admissibility under articles 34 and 35 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) were not met.
- Application No. 26107/22. ↩
Complaint
The author submits that by deporting her to Türkiye, the State Party would violate her rights under article 7 of the Covenant. She faces a foreseeable, real and personal risk of being subjected to torture or ill-treatment in Türkiye. The State Party’s authorities did not contest her claim that her family members have threatened a so-called “honour killing” against her. The State Party’s authorities also did not contest her transgender identity and Kurdish ethnicity, her political activities, the facts of her detention and assault, or her membership in the HDP and PKK. Members of the PKK risk being persecuted if their membership is known to the authorities in Türkiye. Supporters of the HDP are of interest to the authorities in Türkiye.
LGBTQ persons are charged with crimes such as unnatural sexual behaviour, or crimes relating to protection of families or public morals. Representatives of LGBTQ organizations receive threats throughout the country. Police in Türkiye harass and use unlawful violence against LGBTQ persons. They are stigmatized and subjected to discrimination. Police and prosecutors frequently fail to pursue cases of violence against transgender persons.
State Party’s observations on admissibility and the merits
In its submission of 10 February 2023, the State Party maintains that the communication is inadmissible under article 5 (2) (a) of the Optional Protocol because the European Court of Human Rights already examined the same matter. Given the content of the author’s application to the Court, the only possible ground of inadmissibility must have been the manifestly ill-founded nature of the application. Such a finding would mean that the Court sufficiently considered the merits of the application.
The communication is also without merit. The Committee has stated that there must be substantial grounds for believing that there is a real, personal necessary and foreseeable risk of a violation of articles 6 or 7 of the Covenant in the case of a forced return. Considerable weight should be given to the assessment of the States Parties. The Committee is not a court of fourth instance that should reevaluate facts and evidence de novo. The general situation in Türkiye does not in and of itself suffice to establish that the author’s deportation would violate article 7 of the Covenant. The Swedish Aliens Act contains provisions reflecting the principles of articles 6 and 7 of the Covenant. The migration authorities applied those principles in the present case, and both the Migration Agency and the Migration Court (which are specialized bodies with particular expertise in asylum law and practice) thoroughly examined the author’s case.
The two interviews held by the Migration Agency with the author lasted almost six and five hours, respectively. The minutes from the investigations were communicated to the author and her public counsel. The author confirmed that she understood the interpreter well. Through her public counsel, the author was invited to scrutinize and submit written observations on the minutes from the interviews conducted, and to make written submissions and appeals. She has therefore had ample opportunities to explain the relevant facts and circumstances in support of her claim and to argue her case, orally as well as in writing, before the Migration Agency and in writing before the Migration Court. The authorities thus had sufficient information to ensure that they had a solid basis for making a well-informed, transparent and reasonable risk assessment.
The Migration Agency referred to a report in which it was indicated that having an LGBTQ+ identity and facing removal to Türkiye was not sufficient to warrant refugee status.5 The State Party refers to the findings of the Migration Agency described in paras. 2.7 to 2.12 and considers that the Migration Agency did assess the alleged risk factors cumulatively. In their decisions concerning the author’s asylum application, both the Migration Agency and the Migration Court expressly stated that their conclusions were based on an overall assessment of the author’s claims.
- U.K. Home Office, “Country Policy and Information Note – Türkiye: Sexual Orientation and Gender Identity,” 3 August 2017. ↩
Author’s comments on the State Party’s observations on admissibility and the merits
In her comments of 31 August 2023, the author reiterates her arguments and maintains that it cannot be determined from the decision of the European Court of Human Rights whether it was based on procedural or other grounds. The decision lacks reasoning and was issued by a single judge after a short period of review.
The State Party’s assessment of the author’s participation in the Pride parade of 2017 illustrates the arbitrariness which prevailed throughout the handling of her case by the migration authorities. Because she was not personally singled out during the Pride parade, the migration authorities considered that she was not being punished for her previous political activities. In fact, it was clearly because of the author’s gender identity and political activities that she was arrested and assaulted during the parade. She chose to participate in a demonstration advocating for the rights of LGBTQ people in 2017. She was arrested, harassed and subjected to violence because of her participation in this unlawful political activity and because of her vulnerability as a transgender woman of Kurdish ethnicity. According to the author, the assault clearly constituted torture within the meaning of article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Although she was subsequently released by the authorities, she fled Türkiye only three months later because she feared being subjected to torture or ill-treatment again.
The State Party’s authorities incorrectly assessed the severity of the situation for LGBTQ persons in Türkiye and the real, personal and cumulative risk that the author would face there, in particular given her status as a transgender person and public activist. Recent country information published by the Migration Agency indicates that violence against LGBTQ persons in Türkiye is just as frequent in larger cities as it is elsewhere. Many LGBTQ persons choose to live in larger cities because it is easier to live anonymously there. The country information of the Migration Agency also indicates that representatives of LGBTQ organizations receive threats all over Türkiye. That means that the situation for them is worse than the situation for LGBTQ persons in general. However, the Migration Agency did not apply that country information in its assessment of the author’s need for international protection.
The Migration Agency also did not distinguish between different levels of risk which may exist between LGBTQ persons of different gender identities, sexual orientations, socioeconomic factors, and ethnicities, and instead considered them as a homogenous group. Transgender persons are among the most vulnerable, if not the most vulnerable group within that community, because many are prostitutes and are thus easy targets for the police. Online shaming is a method that police use to expose and harass transgender persons in Türkiye. Türkiye has the highest death rate for transgender persons in Europe, and many transgender persons are subjected to violence by the police and the public there. The Migration Court did not address the deficiencies of the decision of the Migration Agency.
State Party’s further observations
In its further observations of 27 March 2024, the State Party observes that under article 26 of the European Convention on Human Rights, the single-judge formation is one of the four formations in which the Court shall sit to consider cases brought before it. Moreover, a request for interim measures based on an alleged risk of irreparable harm must undoubtedly be handled with priority by the Court and is, accordingly, decided on swiftly. It follows from the practice directions of the Court that it may take a decision on admissibility of a case at the same time as it considers a request for interim measures. Thus, neither the single-judge formation nor the time within which the decision was taken support the author’s claim that the same matter has not been examined by the Court. The State Party recounts the findings of the Migration Agency and the Migration Court.
Consideration of admissibility
Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 97 of its rules of procedure, whether the communication is admissible under the Optional Protocol.
Under article 5 (2) (a) of the Optional Protocol and the State Party’s reservation to that provision, the Committee is precluded from examining a matter that is being examined or has been examined under another procedure of international investigation or settlement. The Committee notes the State Party’s position that the European Court of Human Rights examined the same matter before issuing a decision of inadmissibility. The State Party argues that the single-judge formation of the European Court of Human Rights is one of the formations through which the Court takes decisions, pursuant to article 26 of the European Convention on Human Rights. The State Party also maintains that the short timeframe during which the Court processed the author’s application reflects her request for urgent interim measures and does not signify a lack of thoroughness by the Court. The Committee recalls its jurisprudence in which it stated that when the European Court of Human Rights bases a declaration of inadmissibility not solely on procedural grounds but also on grounds based to some extent on the merits of a case, then the same matter should be deemed to have been examined within the meaning of the respective reservations to article 5 (2) (a) of the Optional Protocol.6 In the author’s case, the Committee notes that the decision of the European Court does not set forth a specific justification for the finding of inadmissibility. It is therefore unclear whether the decision was based on procedural or substantive grounds.7 Thus, while it has taken into account the State Party’s arguments on this issue, the Committee is unable to conclude that the same matter has been examined by the European Court. Accordingly, the Committee considers that it is not precluded by article 5 (2) (a) of the Optional Protocol from examining the communication.
The Committee notes the author’s claim that, as required by article 5 (2) (b) of the Optional Protocol, she availed herself of all effective and available domestic remedies through her asylum claim, request for re-examination and appeals, before submitting the communication to the Committee and the lack of an objection by the State Party. Therefore, the Committee considers that the requirements of article 5 (2) (b) of the Optional Protocol have been met.
In assessing whether the communication is sufficiently substantiated for the purpose of admissibility, the Committee recalls its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States Parties to the Covenant, in which it refers to the obligation of States Parties not to extradite, deport, expel or otherwise remove a person from their territory when there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant (para. 12). According to the Committee’s established jurisprudence, the risk must be personal, and there is a high threshold for providing substantial grounds to establish the existence of a real risk of irreparable harm.8 All relevant facts and circumstances must be considered, including the general human rights situation in the author’s country of origin. It is generally for organs of States Parties to the Covenant to review or evaluate facts and evidence to determine whether a risk of irreparable harm exists. Considerable weight should be given to the assessment conducted by the State Party unless the evaluation was clearly arbitrary or amounted to a denial of justice.
- For example, C v. Sweden (CCPR/C/141/D/3307/2019), para. 8.6; J. v. Sweden (CCPR/C/140/DR/2936/2017), para. 7.5; and Z v. Denmark (CCPR/C/137/D/2795/2016), paras. 6.5 and 6.8. ↩
The Committee notes the author’s claim that the State Party would violate her rights under article 7 of the Covenant by deporting her to Türkiye, where she would face torture because of her status as a transgender woman, her Kurdish ethnicity, her membership in the PKK from 2012 to 2014, her membership in HDP, her political activities, her previous employment activities for LGBTQ advocacy organizations in Türkiye, and her family’s threats against her. The Committee notes the author’s assertion that the State Party’s migration authorities failed to conduct a thorough and individualized assessment of the cumulative risk factors in her case. The Committee further notes the State party’s assertion that the migration authorities did analyze the alleged risk factors in a cumulative manner, and examined all of the author’s claims in an overall assessment.
On a procedural level, the Committee notes that the author was asked about her grounds for asylum during two lengthy interviews with the Migration Agency, with effective interpretation and the assistance of public counsel. She obtained reasoned decisions from both the Migration Agency and the Migration Court concerning her asylum application, and from the Migration Agency concerning her application for re-examination based on impediments to expulsion. While the Committee has noted the concerns that may exist for transgender persons and persons of Kurdish ethnicity in Türkiye, the Committee finds that while the author disagrees with the assessment of the State Party’s authorities regarding her claim that she would face a personal and real risk of treatment contrary to article 7 of the Covenant in Türkiye, the facts before the Committee do not allow it to conclude that that assessment was clearly arbitrary or erroneous or amounted to a denial of justice. The Committee thus considers that the communication is insufficiently substantiated and is therefore inadmissible under article 2 of the Optional Protocol.
The Committee therefore decides: (a) That the communication is inadmissible under article 2 of the Optional Protocol;