I correctly predicted that there was a violation of human rights in T.Z. AND M.M. AND OTHERS v. POLAND.
Information
- Judgment date: 2009-09-29
- Communication date: 2021-02-08
- Application number(s): 41764/17
- Country: POL
- Relevant ECHR article(s): 3, 13, P4-4
- Conclusion:
Violation of Article 6 - Right to a fair trial - Result: Violation SEE FINAL JUDGMENT
JURI Prediction
- Probability: 0.938122
- Prediction: Violation
Consistent
Legend
Communication text used for prediction
1.
The applicants are Mrs T.Z.
(the first applicant) and Mr M.M.
(the second applicant), who are married, and their four minor children.
All the applicants are Russian nationals.
2.
The facts of the case, as submitted by the applicants, may be summarised as follows.
3.
Between August 2016 and March 2017 the applicants travelled to the Polish-Belarusian border crossing at Terespol on at least seventeen occasions.
According to them, on each occasion they expressed a wish to lodge an application for international protection.
4.
According to the applicants, when talking to the border guards they expressed fears for their safety.
They told the border guards that they were from Chechnya.
The first applicant submitted that when she was still in Chechnya she had been stalked by a man whose advances she had rejected and who had links to the military.
She alleged that the man in question had threatened her after she married the second applicant.
The applicants further submitted that on one occasion the second applicant had been detained by the police on false charges.
He had been taken to an undisclosed location, tortured and threatened.
Subsequently, the unidentified persons had tried to set the applicants’ house on fire.
After that the applicants had left their home and had travelled to Belarus, with the aim of travelling onwards to Poland.
They told the border guards that they could not remain in Belarus as their visas were about to expire, and that in practice it would be impossible for them to obtain international protection there.
The border guards then summarily turned them away, sending them back to Belarus.
5.
On each occasion when the applicants presented themselves at the border crossing at Terespol, administrative decisions were issued turning them away from the Polish border on the grounds that they did not have any documents authorising their entry into Poland and that they had not stated that they were at risk of persecution in their home country but that they were simply trying to emigrate for economic or personal reasons.
The official notes prepared by the officers of the Border Guard observed that the applicants had cited, for example, their wish to settle in Poland due to financial difficulties that they had faced in Chechnya and the wish to educate their children in Europe and to provide them with a better future.
The applicants did not appeal against the administrative decisions issued on those occasions.
6.
In March and April 2017 the applicants travelled to the border crossing at Terespol on three occasions.
This time they had with them a written application for international protection, which – according to their statements – they tried to lodge with the officers of the Border Guard.
The applicants were again denied entry to Poland and returned to Belarus.
7.
On 13 June 2017, when the applicants again presented themselves at the border crossing at Terespol, their representative lodged a request under Rule 39 of the Rules of Court, asking the Court to prevent the applicants from being removed to Belarus.
He indicated that, as Russian citizens, they had no genuine possibility of applying for international protection in Belarus and were at constant risk of expulsion to Chechnya, where they would face the threat of torture or other forms of inhuman and degrading treatment.
8.
At 10.05 a.m. on 13 June 2017 the Court (the duty judge) decided to apply Rule 39 of the Rules of Court, indicating to the Polish Government that the applicants should not be removed to Belarus until 27 June 2017.
The Government were informed of the interim measure before the planned time of expulsion.
Nevertheless, the applicants were returned to Belarus at 11.25 a.m.
The official note prepared by border guards on this occasion stated that, when at the border, the applicants had expressed the wish to enter Poland and to travel to Germany in order to join the second applicant’s sister who resided there, and to start to live and work there.
9.
On 19 June 2017 the applicants returned to the border checkpoint at Terespol, carrying with them an application for international protection and a copy of a letter informing their representative of the Court’s decision concerning the interim measure.
This time they were allowed to enter Poland and submit applications for international protection.
The proceedings concerning those applications seem to be pending.
10.
On 27 June 2017 the Court (the duty judge) extended the interim measure previously indicated on 13 June 2017 under Rule 39 of the Rules of Court until 27 July 2017 and requested further information from the parties concerning, among other things, the risk of the applicants being expelled pending the asylum proceedings.
11.
Upon receiving that information, and taking into account the fact that the applicants had been admitted to Poland and – pending proceedings concerning their application for international protection – were not at risk of expulsion, on 20 July 2017 the Court (the duty judge) decided to lift the interim measure indicated to the Government under Rule 39 of the Rules of Court on 13 June 2017.
12.
The relevant domestic law and practice concerning granting international protection to aliens and the refusal-of-entry procedure are set out in the Court’s judgment in the case of M.K.
and Others v. Poland (nos.
40503/17, 42902/17 and 43643/17, §§ 67-77, 23 July 2020).
COMPLAINTS 13.
The applicants complain under Article 3 of the Convention that they were returned to Belarus despite the fact that the asylum procedure there was inadequate and did not provide sufficient protection for asylum seekers.
Consequently – in their opinion – they were put at risk of chain‐refoulement to Russia, where they could face torture or inhuman treatment.
They stress that they faced repeated refusals to accept their applications for international protection, even at times when they attempted to submit them in writing.
14.
Under Article 4 of Protocol No.
4 to the Convention they allege that the officers of the Border Guard disregarded their statements concerning their wish to apply for international protection and returned them to Belarus without considering their individual situation, in particular the content of the statements that they made when present at the border.
15.
Moreover, under Article 13 of the Convention in conjunction with Article 3 of the Convention and Article 4 of Protocol No.
4 the applicants complain that they were deprived of an effective remedy against the decisions refusing them entry to Poland as those decisions were executed immediately and appeal against them did not have a suspensive effect.
They also argue that the Head of the National Border Guard, who reviews appeals against the decisions in question, is not an independent body.
Judgment
SECOND SECTIONCASE OF TEVFİK OKUR v. TURKEY
(Application no. 2843/05)
JUDGMENT
STRASBOURG
29 September 2009
FINAL
29/12/2009
This judgment may be subject to editorial revision. In the case of Tevfik Okur v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Françoise Tulkens, President,Ireneu Cabral Barreto,Vladimiro Zagrebelsky,Danutė Jočienė,András Sajó,Nona Tsotsoria,Işıl Karakaş, judges,and Françoise Elens-Passos, Deputy Section Registrar,
Having deliberated in private on 8 September 2009,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 2843/05) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Tevfik Okur (“the applicant”), on 3 December 2004. The applicant was represented by Mr C. Çalış, a lawyer practising in Ankara. The Turkish Government (“the Government”) were represented by their Agent. 2. On 23 September 2008 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the applicant’s lack of access to classified documents submitted to the Supreme Military Administrative Court and the non-communication to the applicant of the principal public prosecutor’s written opinion to the Government. It also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 3). THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
3. The applicant, was born in 1970 and lives in Nevşehir, was a civil servant working for the Turkish Armed Forces at the time of the events giving rise to this application. 4. On 10 September 2003 the Supreme Disciplinary Council of the Ministry of Defence decided to dismiss the applicant from service for misconduct in office following his criminal conviction by a martial law court. 5. The applicant subsequently requested the annulment of the dismissal decision from the Supreme Military Administrative Court. 6. In its reply to the submissions of the applicant, the Ministry of Defence stated that the applicant had been dismissed in accordance with the relevant provisions of Law no. 657 on Civil Servants and the regulation on disciplinary councils and superiors concerning civil servants employed in the Turkish Armed Forces (Türk Silahlı Kuvvetlerinde Görevli Devlet Memurları Disiplin Kurulları ve Disiplin Amirleri Yönetmeliği). The Ministry of Defence also submitted certain documents and information to the Supreme Military Administrative Court, which were classified as “secret documents” under Article 52 (4) of Law no. 1602 on Supreme Military Administrative Court. These documents were not disclosed to the applicant. 7. On 24 June 2004 the Supreme Military Administrative Court rejected the applicant’s request. The written opinion submitted by the principal public prosecutor to the Supreme Military Administrative Court during the proceedings was not communicated to the applicant. 8. On 16 September 2004 the Supreme Military Administrative Court dismissed the applicant’s rectification request. II. RELEVANT DOMESTIC LAW
9. A description of the relevant domestic law can be found in the decision of Karayiğit v. Turkey ((dec.), no. 45874/05, 23 September 2008). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
10. The applicant complained under Article 6 § 1 of the Convention that the principle of equality of arms had been infringed on account of his lack of access to the classified documents and information submitted by the Ministry of Defence to the Supreme Military Administrative Court and the non-communication to him of the written opinion of the principal public prosecutor attached to this court. A. Admissibility
11. The Government asked the Court to dismiss the complaint regarding the non-communication of the written opinion of the principal public prosecutor for failure to exhaust domestic remedies under Article 35 § 1 of the Convention. The Government maintained in this regard that the applicant had not brought this complaint to the attention of the Supreme Military Administrative Court nor had he replied to the opinion of the principal public prosecutor when it was read out during the hearing. 12. The Court observes that it dismissed a similar preliminary objection in the case of Miran v. Turkey (no. 43980/04, § 12, 21 April 2009). It sees no reason to do otherwise in the present case and therefore rejects the Government’s objection. 13. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits
1. Lack of access to classified documents
14. The Government contended that the reason for the applicant’s dismissal from service was clearly stated in the judgment of the Supreme Military Administrative Court and that the documents submitted under Article 52 (4) of Law no. 1602 had no significance for the outcome of the proceedings. 15. The Court notes that it has previously considered similar complaints and found a violation of Article 6 § 1 of the Convention (see Güner Çorum v. Turkey, no. 59739/00, §§ 24-31, 31 October 2006; Aksoy (Eroğlu) v. Turkey, no. 59741/00, §§ 24-31, 31 October 2006; Miran, cited above, §§ 13 and 14; Topal v. Turkey, no. 3055/04, §§ 16 and 17, 21 April 2009). The Court finds no particular circumstances in the instant case which would require it to depart from this jurisprudence. The Court notes particularly that the Government’s allegations concerning the insignificance of the secret documents submitted to the Supreme Military Administrative Court makes their non-disclosure to the applicant all the more unjustifiable in terms of fairness of the proceedings. 16. There has accordingly been a violation of Article 6 § 1 of the Convention on account of the applicant’s lack of access to the classified documents submitted to the Supreme Military Administrative Court. 2. Non-communication of the principal public prosecutor’s written opinion
17. The Government argued that the applicant had the opportunity of examining the case file, which included the written opinion of the principal public prosecutor, at any time. They further argued that the opinion of the principal public prosecutor had no effect on the decision of the court in administrative proceedings. 18. The Court points out that it has previously examined similar complaints and found a violation of Article 6 § 1 of the Convention (see Meral v. Turkey, no. 33446/02, §§ 32-39, 27 November 2007, and Miran, cited above, §§ 15-18). It considers that the Government have not put forward any fact or argument in the instant case which would require it to depart from its previous findings. 19. There has accordingly been a violation of Article 6 § 1 of the Convention on account of the non-communication of the written opinion of the principal public prosecutor to the applicant. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage and costs and expenses
20. The applicant claimed 50,000 euros (EUR) in respect of pecuniary damage, which was the total amount of salaries he would have received until his retirement but for his dismissal, and EUR 25,000 for non-pecuniary damage. The applicant also claimed EUR 5,000 for costs and expenses, without submitting any documents in support of his claim. 21. The Government contested these claims. 22. The Court does not discern any causal link between the violation found and the pecuniary damage alleged (see Kingsley v. the United Kingdom [GC], no. 35605/97, § 40, ECHR 2002‐IV). It therefore rejects this claim. The Court considers, however, that the applicant must have suffered non-pecuniary damage which the findings of a violation of the Convention in the present judgment do not suffice to remedy. Ruling on an equitable basis, in accordance with Article 41, it awards the applicant EUR 6,500 (see Güner Çorum, cited above, § 39; Aksoy (Eroğlu), cited above, § 39; Miran, cited above, § 22; Topal, cited above, § 23). As regards the costs and expenses, the Court makes no award under this head as the applicant failed to substantiate his claims. B. Default interest
23. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the remainder of the application admissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses [unanimously] the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 29 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. Françoise Elens-PassosFrançoise TulkensDeputy RegistrarPresident