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KK (GBTS Other Information Systems McDowall) Turkey CG

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KK (GBTS Other Information Systems McDowall) Turkey CG

Postby dls » Wed Mar 04, 2015 11:19 am

KK (GBTS Other Information Systems McDowall) Turkey CG - IAT - 29-Jun-2004 - Gill VP (Bailii, [2004] UKIAT 00177) - Immigration
IAT (a) The fact that paragraphs 5.48 to 5.57 of the CIPU report sets out extracts of a report from SWOR (Swiss Organisation for Refugees) does not mean that this information is reliable. Paragraph 1.2 of the CPU Report makes it clear that the CIPU report is a collation of extracts of reports. We do not have any information about SWOR other than that it is an NGO. We do not know what methodology SWOR has used to gather its information, or the reliability of the sources of its information.
(b) Whilst it may well be that various bodies (the police, the gendarmerie, the army, etc.) within the Turkish government have their own information systems or registers and it may even be that such information systems/registers may contain information about persons who have been detained but not formally arrested, we are of the view that the last two sentences of paragraph 5.57 of the CIPU Report dated April 2004 should be treated with great caution. If taken literally, these two sentences would mean that every single individual who has ever been detained in the past (for however short a period of time and for whatever reason) would be listed on an information system. Information systems which include all such persons would be rendered of little use, given (from what we know about Turkey) that the numbers of such individuals would be very large indeed - unless, of course, the body which operates the information system/register makes entries of an adverse nature against the names of those individuals who are of continuing adverse interest to distinguish them from the generality. Accordingly, even if other information systems / registers exist, the guidance set out in the ACDOG case would have to be used in order to determine whether it would be reasonably likely that an individual would be subjected to treatment amounting to persecution or in breach of Article 3 on account of any information about the individual on any such systems or registers if the individual were to come into contact with the body which operates the systems or register. In other words, the ACDOG guidance would determine whether an individual is at real risk of such ill-treatment in his home area or the area where his detentions took place.
(c) Even if (applying the guidance in ACDOG) it would be reasonably likely that an individual would be at real risk of persecution or treatment in breach of Article 3 in his home area or the area in which his detentions took place, he would only be at real risk of such treatment on arrival at Istanbul airport if it is shown:
(i) that the other information system/register on which the individual is adversely recorded is available to the immigration or security officials at Istanbul airport; and
(ii) that there is some way of linking the other information system/register with the GBTS.
(d) SWOR does not say that other information systems/registers are available to the security officials at Istanbul airport. It suggests the existence of multiple information systems/registers in Turkey but makes no mention of any initiative by the Turkish authorities to put in place a single computer system to replace records held by police departments in Turkey (see (e), (f) and (g) below).
(e) The Zaman On-Line article dated 1st February 2004 (page 245 of the Appellant's Bundle B) refers to a single computer system which will replace all records kept by the police and gendarmerie. This article gives the name of the system as "Information Collection System". This article states that, under the single on-line system, all records of police and gendarmerie in the provinces will be abolished and the new on-line system will be used. The document entitled "Project for Police Information Systems" dated April 2002 on the final page of the Appellant's Bundle B also makes reference to a police computer network but it gives a different name - the name given in this article is "Police Computer Network and Information System". Both documents must be referring to one and the same computer system - since both articles refer to one system to cover the police departments. If this is the case, then the Zaman On-Line article makes it clear that only criminal records would be collected into the single system. The inference therefore is that mere detentions would not be collected into the single on-line system.
(f) It is also clear from the Zaman On-Line article that not all police departments are already covered by the single on-line computer system. This article specifically refers to the Ankara Police Department having already destroyed all of its records. Accordingly, anyone who was previously detained by the Ankara police and who did not have any criminal record will not be named on the single on-line system, even if that system is available to security officials at Istanbul airport. The fact that records of the Ankara Police Department have been destroyed means that anyone with a history of detentions in Ankara would not now experience problems in Ankara, unless they can show that the individual officers would remember him and would continue to have an adverse interest in him.
(g) Furthermore, the Zaman On-line article states that the previous record keeping system sometimes led to violations in human rights and freedoms. Bearing this in mind, we regard the initiative to eventually abolish all records held by the police and gendarmerie and to collate criminal records into one on-line system as a positive development. Furthermore, if only those with criminal records will be named on the single system (as this Zaman On-line article states) and records in local police stations will be or have been destroyed, then the inference from this article is that fewer people will their human rights abused even in their former home areas.
(h) Mr. McDowall . . specifically states that "we are all guessing". Accordingly, he is speculating in commenting on the evidence placed before the Tribunal in the No. 38 O case. On the same page, he states that "the central question here is whether the filter as applied by the GBTS as described [in his report] is in itself sufficient to serve Turkey's security needs". He opines that it is not. He proceeds to move from this opinion to the assumption that the Turkish authorities must therefore be using a better system which does serve its security needs. There is no basis for that assumption, which is based on speculation. The evidence we have is that, whether adequate or not, it is the GBTS which is used at Istanbul airport.
(i) At page 8 of his report (page 240 of the Appellant's Bundle B), Mr. McDowall states that "Where the person detained is alleged to have been politically active or is otherwise perceived as an opponent of the State, it is practice for their detentions to be recorded on the GBT. The records can be accessed by the police". Footnote 13 indicates that the source for this is Hayri Zafer Korkmaz, who is described as an ex-para legal of Baker & Co. Who is Mr. Korkmaz? What expertise does he have in this area? What does he base his information on? How reliable is his information? These questions are not dealt with in Mr. McDowall's report. Furthermore, the contention that it is the practice for detentions to be recorded contradicts Mr. McDowall's previous report of November 2002 (see paragraph 5.42 of the CIPU Report) in which he stated that a large proportion of detentions at police stations appear to go unrecorded in a formal sense.
(j) We do not accept that Mr. McDowall's report of 19th March 2004 should be accepted by the Tribunal, even though his opinions are based, in part, on speculation and, in part, on information from parties about whom we are given very little information. It may be that the Tribunal has, to date, given too much credence to Mr. McDowall's opinions. If he is the expert he is professed to be, then serious questions are raised as to why, as an expert, he had no prior knowledge of the information about the GBTS which was placed before the Tribunal in the No. 38 O case. The suggestion that it was only at that time that the evidence about the GBTS came forth does not address the issue we are raising here. Mr. McDowall has, for some time now, produced reports opining that the Turkish authorities hold records of detentions which would be available to the security officers at Istanbul airport because they would be on the GBTS. The argument he advances in the report of 19th March 2004 (that the practical application of the GBTS goes beyond official rules covering it) is not one which he has previously advanced - which is very surprising, if he is an "expert" and given the length of time this particular debate has been going on for. We infer, from Mr. McDowall's failure to mention previously such a distinction, that he was, quite simply, unaware of any such distinction until the No. 38 O case. It is also interesting to note that the information contained in the "Project for Police Information Systems" document dated April 2002 and the information contained in the Zaman On-Line article dated 1st February 2004 (both of which pre-date the report of Mr. McDowall dated 19th March 2004) is not mentioned in his report. The time may now have come when the Tribunal may wish to reconsider what credence should be given to Mr. McDowall's opinions.
(k) We do not agree that the No. 38 O case is not a country guidance case. It was clearly meant to provide guidance on the new evidence adduced to the Tribunal in that case about the GBTS system."
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