- Judgment date: 2022-06-21
- Communication date: 2016-12-05
- Application number(s): 40462/16
- Country: TUR
- Relevant ECHR article(s): 2, 2-1, 3, 6, 6-1, 8, 8-1
No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Tajikistan)
No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture
- Result: No violation SEE FINAL JUDGMENT
- Probability: 0.510256
- Prediction: Violation
Communication text used for prediction
The applicants, Mr M.N., Mr K.A., Mr I.A., Mr N.K., Mr U.K., Mr O.K.
and Mr M.U., are Tajikistani nationals and live in Istanbul.
They are represented before the Court by Mr E. Kafadar, a lawyer practising in Istanbul.
The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows.
In 2015 the applicants left Tajikistan because of physical and psychological violence by the authorities on account of their religious beliefs and practices.
On an unspecified date they arrived in Turkey with valid visas.
The applicants started living in a religious establishment in Pendik, a district of Istanbul, in order to receive religious education that they had been unable to receive in Tajikistan.
On an unspecified date the Istanbul police received information suggesting that at certain addresses in Pendik religious establishments had been set up illegally, and that foreign nationals from Tajikistan and Uzbekistan were living in Pendik.
According to the police sources, there may have been members of Islamic State of Iraq and Al-Sham (ISIS) disguised as religion students among those foreign nationals, who crossed into Syria to join ISIS forces in that country.
On 17 October 2015 the police raided several addresses in Pendik.
The applicants were arrested during these raids and taken to the Pendik police headquarters for questioning.
No criminal investigation was initiated against them, as during the search of the house the police found no evidence of their involvement in any crime.
They were then transferred to the Kumkapı Foreigners’ Removal Centre as they were not in possession of valid visas.
The police operation was covered by a number of media outlets.
On 19 October 2015 the deputy governor of Istanbul ordered the applicants’ deportation from Turkey pursuant to section 54(1)(b), (d) and (e) of the Law on Foreigners and International Protection (Law no.
6458), on the grounds that they were members of a terrorist organisation, posed a threat to public security and did not have valid visas.
He also ordered their administrative detention pending deportation for a period of one month, as he considered that they posed a threat to public security and presented a risk of absconding.
On 3 November 2015 Mr M.N., Mr K.A., Mr I.A., Mr U.K., Mr O.K.
and Mr M.U.
lodged an objection with the Istanbul Magistrates’ Court against the detention orders issued in their respect.
In their petition, they argued that they were not members of an organisation and that no criminal investigation had been initiated against them.
The police operation and their arrest had occurred due to a mistake made by the police.
They also stated that their detention had been unlawful, given that they had not been informed of the reasons for their detention and had been unable to challenge it.
On 23 December 2012 Mr N.K.
lodged an objection against the detention order issued for him identical to that of the other applicants.
By decisions dated 11 November and 25 December 2015 the Istanbul Magistrates’ Court ordered the applicants’ release from the Kumkapı Foreigners’ Removal Centre.
In its decision of 11 November 2015 the court noted that no evidence of their involvement in any crime had been found in the flat where Mr M.N., Mr K.A., Mr I.A., Mr. U.K., Mr O.K.
and Mr M.U.
had been arrested, and that they had been released from police custody after questioning.
The court considered that, as a result, the grounds for ordering the applicants’ administrative detention had been inconsistent with the decisions taken by the police.
It therefore allowed their request for release.
As for Mr N.K., in its decision of 25 December 2015 the Istanbul Magistrates’ Court noted that he had been detained at the Kumkapı Foreigners’ Removal Centre for not having a valid visa, but that that was not a valid reason to deprive him of his liberty.
On 11 November and 28 November 2015 the applicants were released from the Kumkapı Foreigners’ Removal Centre.
They were required to reside at designated addresses and report to the Kumkapı Foreigners’ Removal Centre every seven days.
On 17 and 18 December 2015 the applicants lodged separate cases with the Istanbul Administrative Court, requesting that the deportation orders issued in their respect be annulled.
In their petitions, they argued that as a result of the police operation of 17 October 2015 and its media coverage, they had been incorrectly identified as members of ISIS and therefore their lives and physical integrity would be in danger in Tajikistan.
They submitted that there was no respect for freedom of religion and freedom of expression in Tajikistan and widespread torture was inflicted by State officials.
The applicants submitted that the human rights situation in the country had been documented by a number of non-governmental organisations.
The applicants lastly claimed that officials from the Tajikistan Consulate in Istanbul had gone to the Kumkapı Foreigners’ Removal Centre on a daily basis and that they had been coerced to meet them by the administration.
On 28 April 2016 the Istanbul Administrative Court dismissed the cases lodged by the applicants.
In its judgments, which were identical, the court first noted that the applicants had failed to show that there were substantial grounds for believing that they would be subjected to ill‐treatment if deported to Tajikistan.
In particular, they had not explicitly stated the type of persecution that they risked being subjected to or provided evidence in support of their claims.
The court also noted that even assuming that the applicants were at risk of persecution in Tajikistan, under the Geneva Convention, a foreign national in respect of whom there were reasonable grounds to regard him as a danger to the security of the country in which he was in could not benefit from the principle of non-refoulement.
The court considered that the applicants could not argue that they should not be deported to Tajikistan, as it had been established that they posed a threat to the public security in Turkey.
In this regard, the court noted that the religious establishment where the applicants had been arrested had not been set up legally.
The court hence concluded that, even though the applicants had not been convicted of membership or leadership of a terrorist or similar criminal organisation or supporting such an organisation, the orders for their deportation were lawful as they had been arrested in religious establishments set up illegally.
On 30 May 2015 the applicants lodged individual applications and interim measure requests with the Constitutional Court, requesting it to stop their deportation to Tajikistan.
They argued that they would be subjected to ill-treatment if deported to their home country.
They reiterated their claim that they had been erroneously identified as members of ISIS by the Turkish authorities and the media and that therefore they had become targets of the Tajikistan authorities, who would persecute them if returned to that country.
On 31 May 2015 the Constitutional Court rejected the applicants’ interim measure requests, observing that they had failed to submit information and documents in support of their claim that their lives and physical and moral integrity would be in danger in Tajikistan on account of their religious beliefs.
The court also noted that international organisations were not reporting that all persons with a certain religious belief were systematically subjected to torture or other ill-treatment in Tajikistan.
Relevant domestic law On 11 April 2014 the Foreigners and International Protection Act (Law no.
6458) entered into force.
Sections 52 to 60 concern the procedure for the removal of foreign nationals from Turkey, the judicial review of removal orders and detention pending removal.
The provisions relevant to the present case, in force at the material time, are as follows: Deportation Section 52 “(1) Foreigners may be deported to their country of origin or a transit country or a third country by a deportation decision.
Deportation decisions Section 53 (1) A deportation decision shall be issued on the instructions of the Directorate General or ex officio by governors’ offices.
(2) The decision and the reasons for it shall be notified to the foreigner or his or her legal representative or lawyer.
In case the person against whom a deportation order is issued is not represented by a lawyer, he or she or his or her legal representative shall be notified of the consequences of the decision as well as the procedures and time limits for appeal.
(3) A foreigner or his or her legal representative or lawyer may appeal to the administrative court against the deportation decision within fifteen days of the date of notification.
The person appealing against the decision shall also inform the authority that has issued [it] about the appeal lodged with the court.
Applications to court shall be decided within fifteen days.
The court’s decision on the issue shall be final.
Without prejudice to his or her consent the foreigner shall not be deported within the time-limit for bringing a case against the deportation decision or in case of an appeal, until finalisation of the judgment.
Those in respect of whom a deportation decision shall be issued Section 54 (1) A deportation decision may be issued in respect of foreigners: ... (b) who are leaders, members or supporters of a terrorist organisation or a profit‐oriented criminal organisation; ... (d) who constitute a threat to public order and security or public health, ... (e) who have overstayed their visas or visa exemption period for more than ten days or whose visas have been cancelled; ...” PROCEDURE BEFORE THE COURT On 15 July 2016 the applicants lodged the present application with the Court, requesting it to stop their deportation from Turkey under Rule 39 of the Rules of Court.
On the same day the Court (the duty Judge) decided, in the interest of the parties and the proper conduct of the proceedings before it, to indicate to the Government of Turkey, under Rule 39, that the applicants should not be deported to Tajikistan or another country for the duration of the proceedings before the Court.
It further decided to give priority to the applicant under Rule 41 of the Rules of Court.
COMPLAINTS The applicants complain under Articles 2, 3 and 9 of the Convention that their removal to Tajikistan would expose them to a real risk of death or ill‐treatment on account of their religious beliefs.
The applicants complain under Article 6 of the Convention that they did not have an effective domestic remedy whereby they could challenge their threatened deportation.
In this connection, they submit that the Istanbul Administrative Court dismissed the cases brought by them on the grounds that they had failed to state how they would be persecuted in Tajikistan, even though they had explained in detail the reasons for their requests.
The applicants also point out that the proceedings before the Constitutional Court are pending.
However, in their view, given that the Constitutional Court rejected their interim measure request on the grounds that there were no substantial grounds for believing that they would be ill-treated in Tajikistan if deported, thus demonstrating its opinion on the substance of their claim, the remedy of individual application could no longer be regarded as an effective domestic remedy to be exhausted.