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ABDOLKHANI AND KARIMNIA v. TURKEY - 30471/08 [2009] ECHR 1336 (22 September 2009)
URL: http://www.bailii.org/eu/cases/ECHR/2009/1336.html
Cite as:
[2009] ECHR 1336
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SECOND
SECTION
CASE OF ABDOLKHANI AND KARIMNIA v. TURKEY
(Application
no. 30471/08)
JUDGMENT
STRASBOURG
22
September 2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Abdolkhani and
Karimnia 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,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 1 September 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 30471/08) 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 two Iranian nationals, Mr Mohsen Abdolkhani and
Mr Hamid Karimnia (“the
applicants”), on 30 June 2008.
The
applicants, who had been granted legal aid, were represented by Mrs
D. Abadi, the director of Iranian Refugees Alliance Inc., a
non-governmental organisation in New York, United States of America.
Mrs Abadi was approved by the President of the Chamber to
represent the applicants in the proceedings
before the Court pursuant to Rule 36 § 4 (a) of the Rules of
Court. The Turkish Government (“the Government”)
were represented by their Agent.
On
30 June 2008 the President of the Chamber to which the case was
allocated decided, in the interests of the parties and the proper
conduct of the proceedings before the Court, to indicate to the
Government of Turkey, under Rule 39 of the Rules of Court, that the
applicants should not be deported to Iran or Iraq until 4 August
2008. On 22 July 2008 the President of the Chamber decided to extend
until further notice the interim measure indicated under Rule 39 of
the Rules of Court.
On
24 September 2008 the President of the Chamber decided to give notice
of the application to the Government. It was also decided that the
admissibility and merits of the application would be examined
together (Article 29 § 3) and that the case would be given
priority (Rule 41).
The
applicants and the Government each filed written observations on the
admissibility and merits. In addition, comments were received from
the Office of the United Nations High Commissioner for Refugees
(“UNHCR”), which had been given leave by the President to
intervene in the written procedure as a third-party (Article 36 §
2 of the Convention and Rule 44 § 2).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1973 and 1978 respectively and are currently
being held in the Gaziosmanpaşa
Foreigners' Admission and Accommodation Centre in Kırklareli.
The
applicants joined the People's Mojahedin
Organisation in Iran (“the PMOI”, also known as the
“Mojahedin-e-Khalq Organization”)
in 1992 and 2001 respectively. They arrived in Iraq on unspecified
dates. They lived in Al-Ashraf camp, where PMOI members were
accommodated in Iraq, until they left the organisation in 2005 and
2006 respectively, because they disagreed with the PMOI's goals and
methods. After leaving the PMOI, they went to the Temporary Interview
and Protection Facility (“TIPF”), a camp created by the
United States forces in Iraq. This facility was subsequently named
the Ashraf Refugee Camp (“ARC”).
On
5 May 2006 and 16 October 2007, after being interviewed, the
applicants were recognised as refugees by the UNHCR Headquarters in
Geneva during their stay in Iraq. As regards the first applicant, the
UNHCR found that he had a well-founded fear of persecution in
Iran on grounds of his political opinion, his character and the firm
conviction with which he held his political opinions. In particular,
having regard to the applicant's link to the PMOI for 10 years, to
the treatment of members of the PMOI in Iran and to his explicit
opinions on the need for a secular State in his country of origin,
the UNHCR considered that the applicant had established to a
reasonable degree that his situation would be followed up by the
security agencies which would make his stay in Iran intolerable if he
returned there.
As
regards the second applicant, the UNHCR found that he had a
well-founded fear of violations by Iranian authorities of, inter
alia, his right to life through an arbitrary or unlawful
deprivation of life, freedom from torture, ill-treatment, arbitrary
arrest or detention, as well as his right to a fair and public trial.
In particular, having regard to the applicant's membership of the
PMOI and to his political opinions and the treatment of actual and
suspected members of the PMOI and its sympathisers in Iran, the UNCHR
considered that the evidentiary threshold of “reasonable
likelihood” that the applicant would face treatment such as
arbitrary detention and torture was satisfied.
In
April 2008 the TIPF was closed down and the applicants, along with
other former PMOI members, were transferred to northern Iraq.
On
an unspecified date the applicants arrived in Turkey. They
were arrested by security forces and, as
they had entered Turkish territory
illegally, were deported back to Iraq on
17 June 2008.
They
immediately re-entered Turkey.
On
21 June 2008 they were arrested by road checkpoint gendarmerie
officers from the Gökyazı gendarme station, in Muş, as
their passports were found to be false.
On
21 June 2008 the applicants made statements to the gendarmerie
officers. The applicants contended that they would be executed if
returned to Iran, due to their opposition to the Iranian Government's
policies, and that their lives had also been at risk in Iraq. They
stated that they wished to go to Istanbul in order to request asylum
and leave for Canada.
The
applicants were subsequently placed in
the foreigners' department at the police headquarters in the Hasköy
district of Muş.
On
23 June 2008 the Muş public prosecutor filed a bill of
indictment with the Muş Magistrates' Court, charging the
applicants with illegal entry into Turkey.
On
the same day the applicants were brought before the Muş Magistrates'
Court. Noting that the applicants would be deported, the judge
communicated the bill of indictment to the applicants and took their
statements regarding the charge against them. The applicants
submitted that they had left Iran as they faced a risk of death in
that country and that they had come to Turkey illegally, with the
assistance of a smuggler, in order to go to Canada where they had
family. The magistrates' court convicted the applicants as charged
but decided to defer the imposition of a sentence for a period of
five years in accordance with Article 231 of the Code of Criminal
Procedure. The applicants were subsequently taken back to the Hasköy
police headquarters.
According
to the applicants' submissions, on 28 June 2008 the national
authorities once again attempted to deport them, this time to Iran.
The applicants prevented their deportation by speaking Arabic and
pretending not to understand Farsi. Consequently, the Iranian
authorities refused to admit them to Iran. In their submissions to
the Court, the Government made no mention of the purported
deportation of the applicants to Iran. Instead, they noted that the
applicants would be required to be deported to Northern Iraq, where
they had come from.
On
30 June 2008 the director of the Muş branch of the Human Rights
Association, Mr Vedat Şengül, went to the Hasköy
police headquarters to visit the applicants at the request of the
UNHCR Ankara office. According to Mr Şengül's submissions,
on the day of his visit the first applicant had attempted to commit
suicide as he had been told by a police officer that he would be
deported to Iran. The police had not allowed Mr Şengül
to meet the applicants.
On
30 June and 1 and 2 July 2008 the
applicants made further statements to the police and contended that
they were former members of the PMOI.
The first applicant noted that he had had English, Farsi and Arabic
lessons as well as military training when he was in the organisation.
He also stated that, while in the TIPF, he had been a photographer
and taught Arabic. He said that he had not been involved in any armed
activity. The second applicant stated that, apart from the
aforementioned languages, he had also learned Turkish when he had
been a member of the PMOI. He contended that he had lived in the TIPF
for two years and had never been involved in any armed activity. Both
applicants stated that they had come to
Turkey in order to apply to the UNHCR, following advice by
AmericanUSA
officials to do so.
The
applicants submitted identical petitions in Farsi to the police in
Hasköy, which read as follows:
“We entered Turkey with the assistance of a
smuggler from the city of Diyana. We are refugees and used to reside
in Erbil, Iraq. We came to Turkey in order to contact the UNHCR and
ask it to process our [resettlement] cases. The UNHCR's headquarters
in Iraq was blown up by terrorists and it no longer has an office
there. We request to stay in Turkey temporarily so that our cases can
be processed. Our friends advised us that the only way to contact the
UNHCR was to come to Turkey. We need a lawyer before we communicate
[with you] further.”
The
applicants signed these petitions. They also wrote down their UNHCR
case numbers, the names of their parents and their dates of birth.
The
applicants were held at the Hasköy police headquarters, in Muş
until 26 September 2008, when they were transferred to the Kırklareli
Foreigners' Admission and Accommodation Centre.
On
18 October 2008 the applicants drafted petitions addressed to the
Kırklareli governor's office and sought temporary asylum in
Turkey. According to the information in the case file, the applicants
have not yet received any reply to their petitions.
On
15 December 2008 the second applicant married another Iranian asylum
seeker held in the Kırklareli Foreigners' Admission and
Accommodation Centre. The director of the Centre assisted them in
obtaining their marriage certificate.
On
16 January 2009 the second applicant had a power of attorney
notarised for Mr A. Baba, and subsequently Ms S. Uludağ, lawyers
practising in Istanbul, to represent him in Turkey. The notary agreed
to notarise the power of attorney on the basis of the aforementioned
marriage certificate.
On
16 March 2009 the second applicant's lawyer filed a petition with the
Ministry of the Interior, challenging the second applicant's
detention. According to the information in the case file, the second
applicant has not yet received any reply to his petition.
On
25 March 2009, upon a request from the UNHCR, the Government of
Sweden agreed to examine the applicants' cases for resettlement
there. According to the information in the case file, that
examination is still pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
Article
125 of the Turkish Constitution provides, inter alia:
“All acts or decisions of the authorities are
subject to judicial review ...
If the implementation of an administrative act would
result in damage which is difficult or impossible to compensate, and
at the same time this act is clearly unlawful, a stay of execution
may be decided upon, stating the reasons therefor ...”
B. Administrative Procedure Act (Law no. 2577)
Section 2 of Law no. 2577 provides that anyone whose
personal rights have been violated as a result of an allegedly
unlawful administrative decision or act can bring an action for
annulment of that decision or act.
Section
27(1) of the same Law stipulates that an application to the
administrative courts does not automatically suspend implementation
of the decision or act in question. Under section 27(2), the
administrative courts can order a stay of execution if the decision
or act in question is manifestly unlawful and if its implementation
would cause irreversible harm.
C. Passport Act (Law no. 5682) and the Act
on the Residence and Travel of Foreigners in Turkey (Law no. 5683)
Sections
4 and 8(5) of Law no. 5682, in so far as relevant, read as follows:
Section 4
“Foreigners
who come to the Turkish borders without a passport or identity
documents or with an invalid passport or identity documents shall not
be authorised to enter.
Foreigners who
claim that they have lost their passport or identity documents while
travelling may be authorised, pending an investigation conducted by
the Ministry of the Interior, to enter ... and on condition that they
can be accommodated at a place designated by the local governor. ...”
Section 8(5)
“Persons
who are forbidden to enter Turkey are ...
(5) Those
who are perceived to have come for the purpose of destroying the
security and public order of the Republic of Turkey or of assisting
or conspiring with persons who want to destroy the security and
public order of the Republic of Turkey.”
32. Sections
19 and 23 of Law no. 5683 read as follows:
Section 19
“Foreigners whose stay in the territory of Turkey
is considered to be incompatible with public safety and the political
or administrative requirements of the Ministry of the Interior shall
be invited to leave Turkey within a fixed time-limit. Those who do
not leave Turkey after the expiry of the time-limit may be deported.”
Section 23
“Persons who are to be deported but cannot leave
Turkey due to their inability to obtain a passport or for other
reasons are obliged to reside at places designated by the Ministry of
the Interior.”
D. Attorneys Act (Law no. 1136)
Section
2(3) of Law no. 1136, as amended by Law no. 4667 of 2 May 2001,
provides as follows:
“Judicial bodies, police departments, other public
institutions and agencies, State economic enterprises, private and
public banks, notaries, insurance companies and foundations are under
an obligation to assist attorneys in carrying out their duties. These
entities are obliged to submit requested information and documents to
the lawyers for review, subject to any contrary provisions in the
laws establishing these entities. Obtaining copies of such documents
is subject to the presentation of a power of attorney. In pending
cases, documents may be obtained from the court without waiting until
the date of the hearing.”
E. The law and practice governing asylum seekers
1. 1951 Convention relating to the Status of Refugees
Turkey
has ratified the 1951 Convention relating to the Status of Refugees
and the 1967 Protocol thereto. However, it maintains the geographical
limitation provided for in Article 1 B of this Convention by which it
assumes the obligation to provide protection only to refugees
originating from Europe.
2. 1994 Regulation
On
30 November 1994 the Regulation on the procedures and principles
related to possible population movements and foreigners arriving in
Turkey, either as individuals or in groups, wishing to seek asylum
either from Turkey or requesting a residence permit in order to seek
asylum from another country (“the 1994 Regulation”), came
into force by a decision of the Council of Ministers no. 1994/6169.
Under the 1994 Regulation, although formally excluded from the
protection of the 1951 Geneva Convention, non-European asylum seekers
may apply to the Turkish Government for “temporary asylum
seeker status” pending their resettlement in a third country by
the UNHCR.
Article
3 of the 1994 Regulation defines a refugee and asylum seeker as
follows:
“Refugee: A foreign national who, as a result of
events occurring in Europe and owing to a well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of
a particular social group or political opinion, is outside the
country of his or her nationality and is unable or, owing to such
fear, is unwilling to avail himself of the protection of that
country, or who, not having a nationality and being outside the
country of his or her former habitual residence as a result of such
events, is unable or, owing to such fear, is unwilling to return to
it;
Temporary Asylum Seeker: A foreign national who owing to
a well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or
political opinion, is outside the country of his or her nationality
and is unable or, owing to such fear, is unwilling to avail himself
of the protection of that country, or who, not having a nationality
and being outside the country of his or her former habitual residence
as a result of such events, is unable or, owing to such fear, is
unwilling to return to it.”
On
16 January 2006 Articles 4, 5, 6, 7 and 30 of the 1994 Regulation
were amended by a decision of the Council of Ministers (decision
no. 2006/9938).
Articles
4, 5 and 6 of the 1994 Regulation now provide as follows:
Article 4
“Foreign nationals entering Turkey legally to seek
asylum or to request a residence permit in order to seek asylum in
another country shall apply without delay to the governor's office of
the city where they are present. Those who enter Turkey illegally are
required to apply without delay to the governor's office of the
province through which they entered the country.
Those who fail to apply to the authorities within the
shortest reasonable time shall state the reasons for failing to do so
and shall co-operate with the competent authorities.”
Article 5
“With regard to individual foreigners who either
seek asylum from Turkey or request a residence permit in order to
seek asylum from another country the governors' offices shall
a) identify the applicants and take their
photographs and fingerprints.
b) conduct interviews with the applicants in
accordance with the 1951 Geneva Convention relating to the Status of
Refugees. For interviewing and decision making, staff shall be
appointed at the governors' offices which are authorised to conduct
interviews and to take decisions.
c) send the interview documents along with
the comments of the interviewer and the decision made on the case of
the applicant, in accordance with the authority granted under Article
6, to the Ministry of the Interior.
d) pending further instructions from the
Ministry of the Interior, accommodate the foreigner in a centre or a
guest house considered appropriate by the Ministry of the Interior,
or authorise the foreigner to reside freely in a place which shall be
designated by the Ministry of the Interior.
e) take further steps following instructions
from the Ministry of the Interior.”
Article 6
“Decisions on the applications of individual
foreigners, either seeking asylum from Turkey or requesting a
residence permit in order to seek asylum from another country, shall
be adopted by the Ministry of the Interior in accordance with the
1951 Geneva Convention relating to the Status of Refugees and
the Protocol of 31 January 1967 relating to the Status of
Refugees and this Regulation.
When it considers it necessary, the Ministry of the
Interior may transfer the decision-making authority to the governors'
offices.
The decision taken by a governor's office or the
Ministry of Interior shall be communicated to the foreigner through
the governor's office.
Those foreigners whose applications are accepted shall
be accommodated in a guesthouse deemed appropriate by the Ministry of
the Interior or shall freely reside in a place which shall be
designated by the Ministry of the Interior.
Those whose applications are not accepted may appeal to
the relevant governor's office within 15 days.
For a speedier decision, the period for lodging an
appeal may be reduced by the Ministry of the Interior, if deemed
necessary.
The statement, other information and documents
supporting the claim submitted by the applicant appealing the
decision shall be sent to the Ministry of the Interior by the
governor's office. Any appeal shall be decided by the Ministry of the
Interior and the final decision shall be notified to the foreigner.
The situation of those whose appeals are rejected by a
final decision shall be assessed within the framework of the general
provisions regarding foreigners. Within this framework, those
foreigners who are not eligible for a residence permit shall be
notified that they must leave Turkey within a time-limit determined
by the administration. Foreigners who do not leave the country shall
be deported from Turkey by the governors' offices upon receipt of
instructions from the Ministry of the Interior, or ex officio
by the governors' offices where the direct decision-making authority
has been transferred to them.”
3. Circular no. 57
On
22 June 2006 the Minister of the Interior issued a Circular
containing a directive regarding the procedures and principles to be
applied when implementing the 1994 Regulation (“Circular no.
57”) within the context of the process of Turkey's accession to
the European Union. The Circular contains guidelines regarding,
inter alia, asylum seekers' access to asylum procedures,
the manner in which asylum applications and interviews should be
processed, the procedure as to the review of decisions refusing
temporary asylum, the residence of asylum seekers in Turkey and their
transfers to other provinces, health assistance to asylum seekers,
the education of their children and the relation between the Ministry
of the Interior and the UNHCR.
Regarding
the issue of access to the asylum and temporary asylum procedure,
Circular no. 57 reiterates the content of Articles 4 and 5 of the
1994 Regulation. As to residence permits for asylum and temporary
asylum seekers, section 11 of the Circular provides that persons who
have applied for asylum or temporary asylum in Turkey, except for
those listed in section 13, shall ex officio be granted a
residence permit for six months which shall subsequently be extended
ex officio for another six months.
Section
12 of Circular no. 57, in so far as relevant, provides as follows:
Procedure to be followed by the governors' offices
following the decision of the Ministry of the Interior and legal
assistance
“Applicants shall be informed by the governors'
offices of the decision of the Ministry of the Interior regarding
their requests. If the decision is positive, the refugee/temporary
asylum seeker shall be granted a residence permit upon receipt of the
instructions of the Ministry of the Interior.
Negative decision at first instance
If the first decision taken by the Ministry regarding
the applicant's request is negative, the applicant shall be informed
that she or he may lodge an objection against the decision within
fifteen days in accordance with Article 6 of the 1994 Regulation.
The objection may be made in written form or at an
interview, if the applicant requests one.
The residence permit of an applicant who has lodged an
objection against the first decision given in his or her regard shall
be extended and subsequent action shall be taken upon the
instructions of the Ministry of the Interior.
The applicant can submit any information or document in
support of his or her objection. The applicant may lodge an objection
with the assistance of a legal representative or an adviser or
directly through his or her representative.
If the applicant has not lodged an appeal, he or she
shall be ordered to leave the country within fifteen days. A check
shall be carried out to ensure that he or she has left by the end of
this period.
If the person has not left within the specified period,
action shall be taken to deport him or her pursuant to the general
provisions regarding foreign nationals.
Final decision
The petition containing the applicant's objection or the
information and documents concerning the additional interview shall
be sent to the Ministry of the Interior and action shall be taken
upon the latter's instructions.
If an applicant is given refugee or asylum seeker status
following the examination conducted by the Ministry of the Interior,
he or she shall be granted a residence permit upon the instructions
of the Ministry.
An applicant whose objection has been rejected can leave
the country voluntarily.
Residence permits as a result of subsidiary
protection and protection for humanitarian considerations
The cases of applicants whose objections have been
rejected by a final decision are assessed within the framework of the
general provisions contained in Article 6 of the 1994 Regulation
concerning foreigners.
This assessment concerns whether the applicant risks
incurring serious harm, in the light of the European Convention of
Human Rights, and whether it is necessary to grant him or her
subsidiary protection.
Regard is also had to whether the applicant should be
granted a residence permit for humanitarian reasons of health,
education, family unity, etc., or if he or she has applied to the
administrative courts.
Those who are not granted a residence permit within the
context of subsidiary protection or protection for humanitarian
reasons shall be notified of the decisions taken in their respect.
They shall further be informed that they must leave the country
within fifteen days, unless another time-limit is set by the Ministry
of the Interior.
If the person has not left within the specified period,
action shall be taken to deport him or her pursuant to the general
provisions regarding foreign nationals.
If the foreigner does not leave the country and applies
to the administrative court, the Ministry of the Interior shall be
informed. Action shall be taken upon receipt of instructions from the
Ministry...”
Section
13 of Circular no. 57, in so far as relevant, provides as follows:
Cases in which residence permits are not granted ex
officio
“...In order to prevent abuse of international
protection and to identify those who actually need international
protection, those who belong to the categories below shall not be
granted residence permits ex officio: ...
...If the applicant's request is rejected following the
first examination by the Ministry of the Interior and if the
applicant does not lodge an objection, he or she shall be deported.
If the applicant wishes to object to the decision, he or
she shall be given two days in which to do so. The objection and the
documents relating to the objection shall be sent to the Ministry of
the Interior as a matter of urgency. Action shall be taken upon
receipt of instructions from the Ministry...”
Under
section 3 of Circular no. 57, it is compulsory to provide identity
documents for all applicants and asylum seekers/refugees residing in
Turkey within 15 days of receipt of their applications.
4. National Action Plan
On
25 March 2005 the Government of Turkey adopted a National Action Plan
for the adoption of the European Union Acquis in the fields of
asylum and immigration. The National Action Plan envisages, inter
alia, the adoption of a new asylum law.
5. Ruling of the Ankara Administrative Court of 17
September 2008
On
6 August 2008 the representative of A.A., an Iranian national
recognised as a refugee under the UNHCR's mandate and who was held in
a Foreigners' Admission and Accommodation Centre at the relevant
time, lodged a case with the Ankara Administrative Court. He
requested that the court annul the decision of the Ministry not to
release his client and order a stay of execution of that decision
pending the proceedings. On 17 September 2008 the Ankara
Administrative Court ordered a stay of execution of the decision of
the Ministry of the Interior and decided that A.A. should be
released. On 17 October 2008 he was released.
III. RELEVANT INTERNATIONAL MATERIAL
A. Report of the UNHCR Resettlement Service of February
2008
In
the report entitled “Information Regarding Iranian Refugees in
the Temporary Interview Protection Facility (ex-TIPF/ARC) at
Al-Ashraf, Iraq”, submitted to the Court by the applicants,
UNHCR noted, inter alia, the following:
“... 14. ...The Iranian government's
treatment of known or suspected members of or sympathisers with the
PMOI has reportedly been extremely severe, with long prison sentences
and thousands of executions in the years that followed the Islamic
revolution. Execution of PMOI members continue to be reported on a
sporadic basis, including extra-judicial killings in foreign
countries. As a result many PMOI/NLA/NCRI members, or even supporters
or family members, are likely to have a well-founded fear of
persecution on political grounds. ...
18. Iranian ex-PMOI refugees are considered
at particular risk in Iraq. The PMOI has been perceived by some in
Iraq as having been affiliated with the former Iraqi regime of Saddam
Hussein given the protection that the regime afforded. Others have
alleged that PMOI/NLA units were involved in the crushing of the 1991
uprising by Iraqi Kurds and Shia groups which were supported by the
Iranian authorities. Groups that were either allied to or perceived
to have received preferential treatment from the regime of Saddam
Hussein are subject to threats and violence, the Palestinians being
on example.
19. With deepening links between the Islamic
Republic of Iran and the current Shia-led government coalition in
Iraq as well as links between the Iranian government and Shia-based
militias, there is a growing concern that the safety of the ex-PMOI
refugees is increasingly at risk. In a meeting with UNHCR in Jordan
in August 2006, the Iraqi authorities stated their intention to expel
PMOI/NLA and former PMOI/NLA members from Iraq within six months. In
December 2007 UNHCR was informed that in recent months, threats had
been made against the residents of Camp Al-Ashraf... While these
credible threats have not been directed towards the refugees at the
ARC, but rather at those being maintained at camp Al-Ashraf, UNHCR
considers the refugees at the ARC to be in similar danger given their
shared past affiliation with the PMOI/NLA. ...
23. Given the changes in bilateral relations
between governments of Iraq and Iran noted above, as well as the
perceived affiliation of ex-PMOI members with the former regime,
local integration in Iraq, the country of asylum, is not a feasible
durable solution for these refugees. This applies equally to the
Northern Kurdish governorates (KRG). KRG also holds a hostile view
towards former PMOI/NLA members given the group's perceived
connections to the former regime and refused to consider further
UNHCR's relocation request. ...
24. UNHCR currently does not facilitate or
promote voluntary repatriation of refugees from Iraq to Iran. In the
past International Committee of Red Cross (“ICRC”)
facilitated with limited logistic support the voluntary repatriation
to Iran of some 200 PMOI/NLA members from camp Al-Ashraf who
transited through the ARC. Very little independent information is
available as to what happened to these individuals, as neither ICRC
nor UNHCR is able to monitor the situation of returnees. UNHCR
received, however, credible reports that some of the returnees were
forced/“invited” to make public confessions and
accusations against the PMOI/NLA on television after their return. An
organisation of victims of the PMOI composed of persons presented as
former PMOI members (including returnees) called Nejat has
been reporting to UNHCR that returnees did not face any problem upon
return to Iran. None of these returnees either from Camp Al-Ashraf or
from the ARC has approached any UNHCR offices. The Iranian
authorities continue to designate in the media the PMOI members as
“Monafeqin” (i.e. the “Hypocrites”).
25. Reportedly, at one point in time Iran was
prepared to accept the return of PMOI members from Iraq, with the
exception of some 50 high profile members, if they expressed regrets
for their past acts. This promise of amnesty, however, has not been
officially reiterated by President Ahmadinajad. In 2004, in a letter
from UNHCR to the Government of the Islamic Republic of Iran, UNHCR
asked the Iranian authorities to confirm this verbally-declared
amnesty as well as to provide unhindered and direct access by UNHCR
to returnees. No reply was ever received. UNHCR has reiterated this
request without success to the Government of Iran on various
occasions in 2006, 2007 and most recently on 24 January 2008. Despite
separation from family members remaining in Iran and years of limited
freedom of movement in the ARC, the vast majority of former PMOI/NLA
members preferred to remain at the ARC in Iraq, supervised by
Multinational Forces – Iraq (“MNF-I”),
than return to Iran. Recently, some have risked travelling to
Northern Iraq or Turkey so as to get out of the ARC and seek asylum
elsewhere. Some of those who tried to go to Turkey have been forcibly
returned to Iraq. ...
31. Since November
2007, the US military has been facilitating ex-PMOI refugees to
depart the ARC. Most of these refugees travelled to Northern Iraq,
while some attempted to enter Turkey with one way laissez
passez issued by Iraqi authorities
with the assistance of the US military. Some of these refugees were
also in possession of letters signed by a US Army Colonel, stating
that:
“Mr. or Mrs. ... will be
travelling out of the country with a Government of Iraq issued
Laissez Passez
and is authorised to do so. It is his/her intent to obtain a visa at
the border and cross into Turkey. This action has been approved by
MNF-I and the US Embassy Baghdad, in conjunction with the Government
of Iraq.”
32. UNHCR does not
support the issuance of these documents and is concerned that
refugees leaving the ARC based on inaccurate information that they
will be accommodated by UNHCR in northern Iraq or that they will be
able to acquire visas to and enter Turkey. This is not the case.
Refugees who leave ARC are at risk of being stranded in northern Iraq
or subject to detention and deportation from another country, most
notably Turkey. More than 35 ex-PMOI refugees have been detained in
Turkey after leaving the ARC and entering Turkey illegally. 19 of
them were deported to northern Iraq where many were detained in
Mosul. 10 remain in detention in Turkey in precarious circumstances.
Some former refugees are reportedly missing and UNHCR fears that they
may have been deported to their country of origin. Another refugee
from the ARC who arrived illegally to Germany has been allowed by a
court decision to enter the country and to be protected against
refoulement.
...
34. On 19 January 2008
Iran and Turkey signed a memorandum of understanding to enhance
security cooperation and joint efforts to officially oppose drug
trafficking and terrorism. UNHCR is concerned that such an agreement
could be used to refoule
former ARC refugees stranded in detention in Turkey or at its
borders. ...”
B. Press release issued by the UNHCR on 25 April 2008
On
25 April 2008 the UNHCR issued the following statement:
“UNHCR deplores refugee expulsion by Turkey which
resulted in four deaths
GENEVA - Four men, including an Iranian refugee, drowned
after a group of 18 people were forced to cross a fast-flowing
river by the Turkish police at Turkey's south-eastern border with
Iraq, witnesses have told the UN refugee agency.
The incident took place on Wednesday 23 April at an
unpatrolled stretch of the border, near the Habur (Silopi) official
border crossing in Sirnak province in south-eastern Turkey. According
to eyewitnesses, the Turkish authorities had earlier attempted to
forcibly deport 60 people of various nationalities to Iraq through
the official border crossing. The Iraqi border authorities allowed 42
Iraqis to enter the country, but refused to admit 18 Iranian and
Syrian nationals. The Turkish police then took the 18, which included
five Iranian refugees recognised by UNHCR, to a place where a river
separates the two countries, and forced them to swim across.
According to the witnesses interviewed by UNHCR, four
persons, including a refugee from Iran, were swept away by the strong
river current and drowned. Their bodies could not be recovered.
UNHCR is in contact with the surviving refugees through
its office in Erbil, in northern Iraq. They are deeply traumatized by
the experience, UNHCR staff reported.
UNHCR had sent previous communications to the Turkish
government requesting that the five Iranian refugees, who had all
been detained after attempting to cross into Greece in an irregular
manner, not be deported. Despite UNHCR's requests, the refugees were
put in a bus, together with other persons to be deported, and taken
on a 23 hour trip to the Iraqi border last Tuesday. UNHCR had
expressed in a number of communications sent to the Government of
Turkey that it did not consider Iraq a safe country of asylum for
these refugees.
UNHCR is seeking clarification from the Government of
Turkey on the circumstances surrounding the forced expulsion of the
refugees and the tragic loss of life.”
C. Country of Origin Information Report on Iran of the
United Kingdom Border Agency
In
its Country of Origin Information Report on Iran of 21 April 2009,
the United Kingdom Border Agency noted, inter alia, the
following:
“...Human Rights Watch, on 27 February 2006,
reported that:
'Hojat Zamani, a member of the opposition Mojahedin
Khalq Organization outlawed in Iran, was executed on February 7 at
Karaj's Gohardasht prison, Human Rights Watch said today, after a
trial that did not meet international standards.'
Amnesty International, in a public statement dated 27
February 2006, said:
'Executions in Iran continue at an alarming rate.
Amnesty International recorded 94 executions in 2005, although
the true figure is likely to be much higher. So far in 2006, it has
recorded as many as 28 executions. Most of the victims were sentenced
for crimes such as murder but one of those recently executed was a
political prisoner, Hojjat Zamani, a member of the People's Mojahedin
Organization of Iran (PMOI), who was forcibly returned to Iran from
Turkey in 2003 and sentenced to death in 2004 after conviction [for]
involvement in a bomb explosion in Tehran in 1988 which killed 3
people (see Urgent Actions AI Index EUR 44/025/2003, 5 November 2003
and MDE 13/032/2004). He was taken from his cell in Gohar Dasht
prison and executed on 7 February 2006, though his execution was
officially confirmed by Iranian officials only on 21 February.
Hojjat Zamani's execution has fuelled fears that other
political prisoners may be at risk of imminent execution. According
to unconfirmed reports that have been circulating since early
February, a number of political and other prisoners who are under
sentence of death have been told by prison officials that they would
be executed if Iran should be referred to the UN Security Council
over the resumption of its nuclear programme... These [prisoners] are
said to have included other members of the PMOI, which is an illegal
organization in Iran. The National Council of Resistance of Iran, of
which the PMOI is a member, was the source of evidence in 2002
revealing Iran's nuclear programme to the outside world.'
...
According to the Danish FFM of January 2005:
'UNHCR in Teheran reported that 58
members of the Iranian opposition organisation MKO had voluntarily
returned to Iran. Their return was organised by ICRC. UNHCR had no
information indicating that these persons had been legally
persecuted.
UNHCR in Ankara reported that non-profiled members of
Mujaheddin Khalq had returned to Iran but had no information
indicating that these persons had been persecuted or legally
persecuted.
The Organisation for defending
Victims of Violence's international department reported that many
members of Mujaheddin Khalq had returned to Iran without experiencing
problems of a penal character.
IOM in Teheran confirmed that
members of Mujaheddin Khalq had returned to Iran, mainly from Iraq.
The source was not aware that they had been subjected to any
reprisals. IOM had monitored the return of a number of failed asylum
seekers from the UK. According to the source, none had been
persecuted.'
...
The USSD report for 2007 states
that: 'There were reports that the government held some
persons in prison for years charged with sympathizing with outlawed
groups, such as the terrorist organization, the Mujahedin-e-Khalq
(MEK)... The government offered amnesty to
rank-and-file members of the Iranian terrorist organization, MEK,
residing outside the country. Subsequently, the ICRC assisted with
voluntarily repatriating at least 12 MEK affiliates in Iraq under
MNF-I protective supervision during the year.' ...”
D. Press releases issued by Amnesty International
49. In
two press releases issued on 7 September 2006 and 20 March 2009,
Amnesty International reported that a number of political prisoners
in Iran, including two PMOI members, namely Valiollah Feyz
Mahdavi and Abdolreza Rajabi, had died in custody in suspicious
circumstances and that no effective investigation had been conducted
into their death.
E. Recent developments regarding PMOI members in Iraq
In
December 2008 and March 2009 the Iraqi National
Security Advisor and Iraqi government spokesman respectively
made statements, according to which the Iraqi government was
intending to deport the PMOI members in Al-Ashraf Camp to their
country of origin or to a third country, and asked the international
community to find places for them other than Iraq.
Subsequently,
on 14 April 2009 the Chair of the Committee on Migration, Refugees
and Population of the Parliamentary Assembly of the Council of Europe
(PACE) issued a press statement and urged the Iraqi government not to
forcibly return to Iran the residents of Al-Ashraf Camp who would
risk persecution there, not to expel these persons to another country
that might send them to Iran afterwards, nor to forcibly displace
them inside Iraq.
On 24
April 2009 the European Parliament adopted a resolution
on the humanitarian situation of Al-Ashraf Camp residents which
reads, in so far as relevant, as follows:
“The European Parliament
... B. - whereas in 2003 US forces in Iraq
disarmed Camp Ashraf's residents and provided them with protection,
those residents having been designated "protected persons"
under the Geneva Conventions, ...
D. - whereas following the conclusion of the
US/Iraqi Status of Forces Agreement, control of Camp Ashraf was
transferred to the Iraqi security forces as of 1 January 2009,
E. - whereas, according to recent statements
reportedly made by the Iraqi National Security Advisor, the
authorities intend gradually to make the continued presence of the
Camp Ashraf residents "intolerable", and whereas he
reportedly also referred to their expulsion/extradition and/or their
forcible displacement inside Iraq,
1. - Urges the Iraqi Prime Minister to
ensure that no action is taken by the Iraqi authorities which
violates the human rights of the Camp Ashraf residents and to clarify
the Iraqi government's intentions towards them; calls on the Iraqi
authorities to protect the lives and the physical and moral integrity
of the Camp Ashraf residents and to treat them in accordance with
obligations under the Geneva Conventions, in particular by refraining
from forcibly displacing, deporting, expelling or repatriating them
in violation of the principle of non-refoulement;
2. - Respecting the individual wishes
of anyone living in Camp Ashraf as regards his or her future,
considers that those living in Camp Ashraf and other Iranian
nationals who currently reside in Iraq having left Iran for political
reasons could be at risk of serious human rights violations if they
were to be returned involuntarily to Iran, and insists that no person
should be returned, either directly or via a third country, to a
situation where he or she would be at risk of torture or other
serious human rights abuses; ...”
Meanwhile,
on 26 January 2009 the Council of the European Union decided to
exclude the PMOI from the list of individuals, groups and entities
involved in terrorist acts, in accordance with the judgment
of the European Court of Justice dated 4 December 2008 in Case
T-284/08.
F. Report of the United Nations Working Group on
Arbitrary Detention
On
7 February 2007 the United Nations Working Group on Arbitrary
Detention issued a report on its Mmission
to Turkey (Report of the Working Group on Arbitrary Detention on its
Mission to Turkey, Report of 7 February 2007, A/HRC/4/40/Add.5).
Regarding the detention of foreigners awaiting expulsion in Turkey,
the UN Working Group noted the following:
“... 86. Foreigners who are in Turkey
without the documents necessary to allow them to stay lawfully in the
country can be, and are in great numbers, arrested by the police or
the Gendarmerie. After a brief period in police custody they are
taken to a so-called “guest house” for foreigners run by
the Ministry of the Interior, where they are - in spite of the
welcoming name of these institutions - to all effect locked up
awaiting expulsion. However, no written decision to this effect is
issued to them.
87. Article 23 of the Law on the Residence of
Foreign Citizens, providing that foreigners who have been issued an
expulsion decision but cannot be immediately expelled, shall reside
in a location assigned to them by the Ministry of the Interior, does
not constitute a sufficient legal basis for this practice. Neither
this law, nor any other, provides further details as to the
preconditions for, modalities of or maximum duration of assignment to
a residence for foreigners awaiting expulsion. As this is not a
measure adopted within the criminal process, judges of the peace have
no jurisdiction to rule on challenges against such measures. It would
appear that administrative tribunals are competent. However, this
remedy appears not to be exercised in practice. Challenges to the
expulsion decision may have an impact also on the question of
detention, but they simply do not constitute the remedy against the
fact of deprivation of liberty required by article 9 (4) of ICCPR.
88. It is important to stress that this has
nothing to do with the criminal proceedings which can be initiated
against a foreigner for illegal entry into Turkey. Such proceedings
are not regularly pursued and, in case of a guilty finding, result in
a fine, not deprivation of liberty.
89. Another aggravating aspect is that,
according to information provided by the police, not only foreigners
who are actually the subject of an expulsion decision are assigned to
guest houses (i.e. deprived of their liberty), but also so assigned
are many who - in the opinion of the police - are likely to receive
an unfavourable outcome in expulsion proceedings initiated against
them. This practice violates even article 23 of the Law on the
Residence of Foreign Citizens.
90. To sum up, there is no remedy for the
foreigners awaiting expulsion to challenge their detention, and no
control over the detention by a judicial authority. It may be true
that in some cases the person to be deported spends only a few days
at the guest house. But in others, where there are difficulties
obtaining valid travel documents (as appears to be the case for many
African migrants), the detention can last months and even more than a
year...”
THE LAW
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS AND
ADMISSIBILITY
A. The alleged lack of victim status
The
Government submitted that the applicants had entered Turkish
territory illegally and had been deported to Iraq, where they had
come from, pursuant to the national legislation prior to their arrest
on 21 June 2008. They maintained that, despite this, the applicants
did not have victim status within the meaning of Article 34 of the
Convention as no deportation order was issued in their respect.
The
applicants submitted that they had been deported to Iraq and that the
authorities had attempted to deport them to Iran without serving any
deportation orders on them. They therefore argued that they had had
victim status even though there had been no actual deportation order.
The
Court notes at the outset that the Government were explicitly
requested by the Court to submit information concerning the legal
basis of the applicants' deportation to Iraq on
17 June 2008 and the alleged attempted deportation on 28 June 2008 to
Iran. They were further asked to submit a copy of the deportation
orders as well as documents proving that the orders had been served
on the applicants. The Government failed, however, to submit
this documentation. Furthermore, the Government maintained that the
applicants had entered Turkey illegally and were deported back to
Iraq prior to their arrest by the security forces. Thus, the Court
finds that the applicants were deported by the national authorities
on at least one occasion, to Iraq on 17 June 2008, without a
deportation order or without one having been served on the
applicants.
In
the light of the above, the Court considers that the absence of
deportation orders cannot lead to a conclusion that the applicants
did not risk, and still do not risk, being deported to Iraq or Iran
by the Turkish authorities. The Court therefore concludes that the
applicants have victim status within the meaning of Article 34 of the
Convention and it rejects the Government's objection.
B. The alleged failure to exhaust domestic remedies
The
Government further contended that, had there been a deportation
order, the applicants could and should have applied to the
administrative courts in accordance with Article 125 of the
Constitution. They argued that, pursuant to Turkish law, foreigners
who are to be deported may apply to the administrative courts and
request the suspension of the deportation proceedings as well as the
annulment of the administrative decisions. If the courts accept their
request for a stay of execution, the administrative authorities
suspend the deportation proceedings. The Government concluded that
the applicants had failed to exhaust the
domestic remedies available to them, within the meaning of Article 35
§ 1 of the Convention.
The
applicants submitted that they could not have challenged a decision
which has not been served on them.
The
Court notes that it has already held in its judgment in the case of
Gebremedhin [Gaberamadhien] v. France (no. 25389/05, §
66, ECHR 2007 V) that, where an applicant seeks to prevent his
or her removal from a Contracting State, a remedy will only be
effective if it has automatic suspensive effect (see also Čonka
v. Belgium, no. 51564/99, § 79, ECHR 2002 I).
Similarly, in the case of N.A. v. the United Kingdom
(no. 25904/07, § 90, 17 July 2008), the Court further
held that judicial review, where it is available and where the
lodging of an application for judicial review will operate as a bar
to removal, must be regarded as an effective remedy which in
principle applicants will be required to exhaust before lodging an
application with the Court or indeed requesting interim measures
under Rule 39 of the Rules of Court to delay a removal.
The
Court observes that an application to the administrative courts, made
pursuant to Article 125 of the Constitution, seeking the annulment of
a deportation order does not have automatic suspensive effect. An
administrative court would have to make a specific staying order (see
Jabari v. Turkey, no. 40035/98, § 49, ECHR 2000-VIII).
Therefore, even assuming that the applicants were to be served with
deportation orders and would have the possibility of challenging them
before the administrative courts, they would not be required to apply
to the administrative courts in order to exhaust the domestic
remedies within the meaning of Article 35 §
1 of the Convention. The Court accordingly rejects the
Government's objection.
C. Compliance with other admissibility criteria
The
Court observes 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.
II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE
CONVENTION
The
applicants complained under Articles 2 and 3 of
the Convention about their deportation to Iraq on 17 June 2008, the
authorities' attempt to deport them to Iran on 28 June 2008 and their
current threatened deportation to one of the two aforementioned
countries, alleging that they would be exposed to a clear risk of
death or ill-treatment if deported. They maintained that their
removal to Iran would expose them to a real risk of death or
ill-treatment. In particular, as former members of the PMOI, they run
the risk of being subjected to the death penalty in Iran. The
applicants further submitted that, in Iraq, they would be subjected
to ill-treatment as in that country they are considered by the
authorities to be allies of the former Saddam Hussein regime.
The
Court finds it is more appropriate to examine the applicants'
complaints from the standpoint of Article 3 of the Convention (see
N.A. v. the United Kingdom cited above, § 95, 17
July 2008; Said v. the Netherlands, no. 2345/02, §
37, ECHR 2005-VI). Article 3 reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government contested the applicants' arguments.
A. The parties' submissions
1. The Government
The
Government maintained that the applicants were members of the PMOI,
an organisation which had been designated as a terrorist organisation
by the United States of America and the European Union. Therefore,
allowing members of this organisation, including the applicants, to
stay in Turkey would create a risk to national security, public
safety and order. They contended that the applicants had been
deported back to Iraq, in accordance with the national legislation,
when they had first arrived in Turkey. They further maintained that
the applicants would again be deported to Iraq, where they had come
from. However, the Government were currently complying with the
interim measure indicated to them under Rule 39 of the Rules of
Court. In that connection, they noted that the Iraqi Government had
demonstrated considerable progress in the field of security and that
therefore Iraq, which was controlled and administered by the
Coalition Forces, was safe. They concluded that the applicants'
deportation to Iraq would not expose them to any risk.
2. The applicants
The
applicants submitted that the authorities had attempted to deport
them to Iran on 28 June 2008 without any record of the removal, and
that the Government had not addressed the risks which they might face
in their country of origin. Relying on the Court's judgment
in the case of Chahal v. the United Kingdom (15 November
1996, § 96, Reports of Judgments and Decisions 1996-V),
the applicants asked the Court to make its own assessment regarding
the risks to which they might be exposed in Iran. They contended that
they would be ill-treated, and even executed, in Iran as former
members of the PMOI. The applicants relied on their recognition as
refugees by UNHCR on this account.
In
this connection, the first applicant submitted that he had joined the
PMOI while performing his military service between 1992 and 1994. In
1995, while trying to assist a PMOI member to flee the country, he
had been arrested, detained for one day and ill-treated before
managing to escape. He had subsequently fled to Iraq. He had not
participated in any military operation on behalf of the PMOI despite
having undergone military training. When he had begun disagreeing
with the organisation's goals and methods, he had been summoned and
questioned. In 2001 he had been ill-treated and detained for four
months in a building in Al-Ashraf camp. In October 2005 he had
finally left the PMOI and gone to the TIPF. Consequently, the UNHCR
had recognised him as a refugee
The
second applicant had left Iran in 2000 and went to Turkey as it was
intolerable for him to live under the theocratic regime in Iran.
While in Iran, he had been arrested between 20 and 30 times for
breaking various dress and social/moral codes. He had joined the PMOI
in 2001 and gone to Iraq. After he had joined the PMOI, the Iranian
authorities had put pressure on his family, which had resulted in his
mother having a heart attack and caused his father to have a stroke
and lose his speech. The applicant had asked to be dismissed from the
organisation – as he found it dictatorial – two months
after his arrival in Iraq. As a result, he had been detained for
three months in Al-Ashraf camp. In 2006 he had been transferred to
the TIPF. Subsequently, the UNHCR had recognised him as a refugee
The
applicants further maintained that they would not be safe in Iraq.
They contended, firstly, that there was generalised violence in Iraq.
Moreover, as former members of the PMOI they risked being persecuted
by the current Iraqi Government and even being deported from Iraq to
Iran if they were removed from Turkey. They noted that the TIPF had
been closed down in April 2008 by the United States forces and that,
therefore, they would not be able to go back to where they had come
from. They also noted that the control of Al-Ashraf camp, where PMOI
members lived, had been transferred to the Iraqi Government in
December 2008 and that several human rights organisations had
expressed concern for the security of the residents of this camp in
the absence of multinational forces. The applicants finally submitted
that there existed no readmission agreement between Turkey and Iraq
concerning Iranian nationals and that the Iraqi authorities had
systematically refused the readmission of former PMOI refugees to
Iraq. The applicants noted in this respect that there had been cases
where the Turkish authorities had carried out deportations in an
illegal manner, including the applicants' deportation of 17 June 2008
when they had been forced to cross the border into the Diyana region
of Iraq.
B. The third party's submissions
The
UNHCR submitted that certain former PMOI members, including the
applicants, had been recognised as refugees under their mandate. They
contended that 24 former members of the PMOI who had been recognised
as refugees under the UNHCR's mandate had been deported back to Iraq
from Turkey and that three of them had been directly removed to Iran.
The UNHCR submitted in this connection that these deportations and
attempted deportations had been carried out without due regard to the
fact that these persons had been recognised as refugees by the UNHCR.
They claimed that the respondent Government had informed them that
they did not acknowledge recognition under the UNHCR's mandate
elsewhere than in Turkey. The UNHCR maintained that, whilst
recognition under their mandate was not legally binding on States per
se, it must not be disregarded without proper justification and must
be accorded high persuasive authority in assessing the existence of a
well-founded fear of persecution.
The
UNHCR explained that, regarding removal to a first country of asylum,
a prior assessment was required as to whether the individual was
protected against refoulement and whether he or she was
permitted to remain in that country and to be treated in accordance
with recognised basic human rights standards until a durable solution
was found. As regards Iraq, the UNHCR noted that that State was
neither a party to the 1951 Convention relating to the Status of
Refugees nor to its 1967 Protocol. In view of the highly volatile
security situation in Iraq as well as the continuing internal and
external displacement of persons due to violence, there was a real
risk of serious human rights violations if refugees were returned
there.
The
UNHCR submitted that former PMOI refugees faced further security
risks in Iraq in addition to being affected by the general conditions
of insecurity in the country. Former members of the PMOI were
perceived as having been affiliated to the former Saddam Hussein
regime which had protected them in the past. A small group of former
PMOI refugees in northern Iraq had not been issued with refugee
cards, but only granted temporary residence permits which had to be
renewed on a monthly basis. Their stay in northern Iraq was tolerated
by the authorities on the assumption that the UNHCR would resettle
them in another country. However, as resettlement prospects faded, so
did the tolerant attitude of the Northern Iraq authorities.
C. The Court's assessment
1. General principles
The Court reiterates at the outset that Contracting
States have the right as a matter of international law and subject to
their treaty obligations, including the Convention, to control the
entry, residence and expulsion of aliens (see Üner v. the
Netherlands [GC], no. 46410/99, § 54, ECHR 2006 XII;
Abdulaziz, Cabales and Balkandali v. the United Kingdom,
28 May 1985, Series A no. 94, § 67; Boujlifa v. France,
21 October 1997, § 42, Reports 1997 VI). The
right to political asylum is not explicitly protected by either the
Convention or its Protocols (see Salah Sheekh v. the
Netherlands, no. 1948/04, § 35, ECHR 2007 I). However,
expulsion by a Contracting State may give rise to an issue under
Article 3, and hence engage the responsibility of that State under
the Convention, where substantial grounds have been shown for
believing that the individual concerned, if deported, faces a real
risk of being subjected to treatment contrary to Article 3. In such a
case, Article 3 implies an obligation not to deport the person in
question to that country (see Saadi v. Italy [GC],
no. 37201/06, § 125, 28 February 2008).
The
assessment whether there are substantial grounds for believing that
the applicant faces such a real risk inevitably requires that the
Court assess the conditions in the receiving country against the
standards of Article 3 of the Convention (see Mamatkulov and
Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, §
67, ECHR 2005 I). These standards imply that the ill-treatment
the applicant alleges he will face if returned must attain a minimum
level of severity if it is to fall within the scope of Article 3. The
assessment of this is relative, depending on all the circumstances of
the case (see Hilal v. the United Kingdom, no. 45276/99, §
60, ECHR 2001 II).
Owing
to the absolute character of the right guaranteed by Article 3,
the existence of the obligation not to expel is not dependent on
whether the risk of ill-treatment stems from factors which involve
the responsibility, direct or indirect, of the authorities of the
receiving country. Article 3 may thus also apply in situations where
the danger emanates from persons or groups of persons who are not
public officials. What is relevant in this context is whether an
applicant is able to obtain protection against and seek redress for
the acts perpetrated against him or her (see Salah Sheekh,
cited above, § 147).
In
cases where an applicant alleges that he or she is a member of a
group systematically exposed to a practice of ill-treatment, the
protection of Article 3 of the Convention enters into play when
the applicant establishes that there are serious reasons to believe
the existence of that practice and his or her membership of the group
concerned (see Saadi, cited above, § 132). In such
circumstances, the Court would not insist that the applicant show the
existence of further special distinguishing features if to do so
would render illusory the protection afforded by Article 3. This will
be determined in the light of the applicant's account and the
information on the situation in the country of destination in respect
of the group in question (see Salah Sheekh, cited above, §
148).
If
the deportation has already occurred, the existence of the risk must
be assessed primarily with reference to those facts which were known
or ought to have been known to the Contracting State at the time of
the extradition or deportation. The Court is not precluded, however,
from having regard to information which comes to light subsequent to
the extradition or deportation (see Mamatkulov and Askarov,
cited above, § 69). If an applicant has not yet been extradited
or deported when the Court examines the case, the relevant time will
be that of the proceedings before the Court (see Saadi, cited
above, § 133).
2. Application of the above principles to the present
case
The
Court observes at the outset that the applicants complained about
their deportation to Iraq on 17 June 2008 and that the respondent
Government accepted in their submissions to the Court that the
applicants had been deported to Iraq when they had first arrived in
Turkey. The Government also confirmed that the applicants would be
deported to Iraq, from where they had entered Turkish territory,
pursuant to the national legislation. The Court would assess, under
normal circumstances, the existence of the risk with reference to the
date of the applicants' first deportation on 17 June 2008, together
with the risk which they may face if expelled to Iraq now. However,
given that the applicants immediately returned to Turkey after the
first deportation and that they are currently held in a Foreigners'
Admission and Accommodation Centre in Turkey, the Court considers
that it does not need to examine any further the first incident. The
Court will therefore proceed to assess the existence of any risk in
Iraq faced by the applicants if they were now to be deported.
The
Court further notes that the applicants alleged that the Turkish
authorities had also attempted to deport them to Iran on 28 June
2008. The Government, however, did not address this allegation in
their submissions. Short of drawing conclusions from the Government's
silence, the Court will nevertheless take the applicants' allegation
into account and also examine whether the
applicants would be exposed to a risk of treatment in breach of
Article 3 if they were now to be deported to Iran, their country of
origin.
In
this latter context, the Court first has regard to the
information contained in the Report of the United Kingdom Border
Agency (Country of Origin Information Report)
on Iran, dated 21 April 2009 (“the
Home Office Report”) and the
UNHCR's submissions that there have been cases
of expulsion of former and current PMOI members from Turkey directly
to Iran (see paragraphs 46 and 48 above). The Home Office
Report recorded information provided by Amnesty International and
Human Rights Watch that a PMOI member who had been returned to Iran
in 2003 by the Turkish authorities had been executed on 7 February
2006. The same report further cited the United States State
Department Report of 2007, according to which some persons had been
held in prison for years in Iran, charged, inter alia, with
being sympathisers of the PMOI.
According
to the Report of the UNHCR Resettlement Service, execution of PMOI
members in Iran continued on a sporadic basis, including
extra-judicial killings in foreign countries. In that connection, the
UNHCR made reference to a press release by Amnesty International
dated 7 September 2006, according to which a PMOI supporter had
died in suspicious circumstances in an Iranian prison. According to
another press release by Amnesty International, dated 20 March 2009,
another member of PMOI had died in prison on 30 October 2008, once
again in suspicious circumstances.
In
contrast, the Home Office Report stated that since 2005 a number of
PMOI members previously residing in Al-Ashraf Camp had been
voluntarily returned to Iran under the supervision of the
International Committee of the Red Cross (“the ICRC”).
However, according to the Report of the UNHCR Resettlement Service,
there was little independent information available as to what had
happened to these individuals (200 in number) since neither the UNHCR
nor the ICRC had been able to monitor the situation of returnees. The
UNHCR had received contradictory accounts about these people. While
some sources indicated that the returnees had not faced any problem,
certain other credible sources had stated that some of the returnees
had been forced to make public confessions and accusations against
the PMOI. In these circumstances the Court is unable to draw
firm conclusions about the likely fate of PMOI members returning to
Iran. Nevertheless, it is significant that there is a lack of
reliable public information concerning such a large group of persons.
Furthermore, the Court cannot overlook the fact that the UNHCR have
not had access to the returnees in Iran, and that the Iranian
Government's promise of amnesty for PMOI members has never been
realised.
The
Court must also give due weight to the UNHCR's conclusions
regarding the applicants' claims, before making its own assessment of
the risk which the applicants would face if they were to be removed
to Iran (see Jabari, cited above, § 41, and N.A. v.
the United Kingdom, cited above, § 122). In this
connection, the Court observes that, unlike the Turkish authorities,
the UNHCR interviewed the applicants and had the opportunity to test
the credibility of their fears and the veracity of their account of
circumstances in their country of origin. Following these interviews,
it found that the applicants risked being subjected to an arbitrary
deprivation of life, detention and ill treatment in their
country of origin (see paragraphs 8 and 9 above).
In
the light of the above, the Court finds that there are serious
reasons to believe that former or current PMOI members and
sympathisers could be killed and ill-treated in Iran and that the
applicants used to be affiliated to this organisation. Moreover, in
the light of the UNHCR's assessment, there exist substantial grounds
for accepting that the applicants risk a violation of their right
under Article 3, on account of their individual political opinions,
if returned to Iran.
As
regards the alleged risks in Iraq, the Court observes at the outset
that the Government have not responded to the applicants' submission
that there was no readmission agreement between Turkey and Iraq
concerning Iranian nationals and that the Iraqi border authority had
systematically refused the readmission of former PMOI refugees to
Iraq. In the absence of any submission on the part of the Government
concerning the legal framework of deportation of non-Iraqi nationals
to Iraq, the Court is led to the conclusion that the removal of
Iranian nationals to that country is carried out in the absence of a
proper legal procedure.
The
Court observes in this connection that the UNHCR and a number of
other sources, such as Amnesty International, have reported that
there are cases where non-Iraqi nationals have been deported to Iraq
forcibly and illegally by the Turkish authorities. In their
submissions to the Court, the UNHCR referred to their press release
of 25 April 2008, according to which witnesses reported that the
Turkish authorities had attempted to deport sixty persons to Iraq
through the official border crossing on 23 April 2008. As the Iraqi
border authorities only accepted Iraqi nationals and had refused to
admit eighteen non-Iraqi refugees, the latter had been forced to
cross a fast flowing river by the Turkish police. Four of these
persons had been drowned in the river and their bodies could not be
recovered.
The
Report of the UNHCR Resettlement Service of February 2008 further
states that in 2007 a total of nineteen ex-PMOI refugees were
deported to northern Iraq, where many of them were arrested by Iraqi
security forces and subsequently placed in detention in Mosul.
According to the Report, a number of these ex-PMOI members went
missing and the UNHCR feared that they might have been deported to
Iran by the Iraqi authorities. The Court finds the UNHCR's concerns
reasonable having regard, in particular, to the fact that Iraq is not
a party to the 1951 Geneva Convention.
In
this connection, the Court considers that the policy of the Iraqi
Government of providing one-way travel documents to former members of
the PMOI (see paragraph 46 above), the recent statement of the
Government of Iraq regarding their intention to end the PMOI presence
in Iraq, which received an immediate reaction from both the European
Union Parliament and the Chair of the Refugee Committee of the
Parliamentary Assembly of Council of Europe(see paragraph 50 above),
together with the changing nature of the relations between the Iraqi
and Iranian Governments and the hostility of the Kurdish regional
governorates towards the PMOI reported by the UNHCR (see paragraph 46
above), demonstrate a strong possibility of removal of persons
perceived to be affiliated with PMOI from Iraq to Iran.
The Court reiterates in this connection that the
indirect removal of an alien to an intermediary country does not
affect the responsibility of the expelling Contracting State to
ensure that he or she is not, as a result of its decision to expel,
exposed to treatment contrary to Article 3 of the Convention (see
T.I. v. the United Kingdom (dec.), no. 43844/98, ECHR
2000-III; Salah Sheekh, cited above, § 141).
Given
that the applicants' deportation to Iraq would be carried out in the
absence of a legal framework providing adequate safeguards against
risks of death or ill-treatment in Iraq and against the applicants'
removal to Iran by the Iraqi authorities, the Court considers that
there are substantial grounds for believing that the applicants risk
a violation of their rights under Article 3 of the Convention if
returned to Iraq.
The
Court finds in these circumstances that the evidence submitted by the
applicants and the third party together with the material obtained
proprio motu is sufficient for it to
conclude that that there is a real risk of the applicants being
subjected to treatment contrary to Article 3 of the Convention if
they were to be returned to Iran or Iraq. The Court also notes in
this connection that the Government have not put forward any argument
or document capable of dispelling doubts about the applicants'
allegations concerning the risks they might face in Iran and Iraq
(see Saadi, cited above, §§ 128 and 129).
Finally,
as to the Government's argument that allowing PMOI members, including
the applicants, to stay in Turkey would create a risk to national
security, public safety and order, the Court reiterates the absolute
nature of Article 3 of the Convention. The Court has already held
that it was not possible to weigh the risk of ill-treatment against
the reasons put forward for the expulsion in order to determine
whether the responsibility of a State was engaged under Article 3,
even where such treatment was inflicted by another State. The conduct
of the person concerned, however undesirable or dangerous, cannot be
taken into account (see Chahal, cited above, § 81; Saadi,
cited above, § 138). Moreover, the Court recalls that the
applicants left the PMOI in 2005 and 2006 respectively and were
recognised as refugees by the UNHCR. It therefore rejects the
Government's argument.
Consequently,
the Court concludes that there would be a violation of Article 3 of
the Convention if the applicants were to be removed to Iran or to
Iraq.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
The
applicants complained under Article 13 of the Convention that they
did not have an effective domestic remedy whereby they could raise
their allegations under Articles 2 and 3 of the Convention. In
particular, they were prevented from lodging an asylum claim and from
challenging their threatened deportation. Article 13 provides as
follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
The
Government contested the applicants' arguments.
A. The parties' submissions
1. The Government
The
Government submitted at the outset that Turkey was on the
transportation routes between Asia, Africa and Europe, and that
therefore the Turkish authorities were overwhelmed with illegal
immigrants. They further submitted that, while struggling against
illegal immigration, the authorities have taken all steps to protect
persons who need international protection. In that connection,
amendments were introduced to the 1994 Regulation and Circular no. 57
was issued. Furthermore, a new asylum law was envisaged with a view
to harmonising the national legislation in the context of the process
of accession to the European Union.
In
their submissions of 14 and 17 November 2008, the Government
contended that the applicants had failed to file an application for
asylum and temporary asylum in accordance with the 1994 Regulation
when they had first arrived in Turkey before their initial
deportation. They noted that, pursuant to the 1994 Regulation and
Circular no. 57, foreigners arriving in Turkey illegally were
required to apply to the national authorities within a reasonable
time and ask for asylum or temporary asylum, failing which they would
be deemed illegal immigrants in Turkey. The Government asserted that
the national authorities examined whether a foreigner risked
ill treatment in his or her country of origin within the context
of the asylum procedure. The Government therefore considered the
applicants as illegal immigrants who could be deported from Turkey
pursuant to the national legislation. They further noted that many
illegal immigrants who had been arrested while trying to leave
Turkey, heading for other destinations in Europe, applied for asylum
and subsequently to the Court with the sole purpose of preventing
their deportation.
In
their submissions of 31 March 2009, the Government maintained that
the national authorities processed all applications notwithstanding
the fact that some of the applicants had not applied to the
authorities within a reasonable period of time, without
justification, although they had had the opportunity to apply. They
noted that persons who claimed asylum after being arrested for
illegal entry, illegal presence or attempted illegal departure from
Turkey were also granted a residence permit and international
protection. In that connection, they referred to the case of M.B.,
who had lodged an application against Turkey before the Court
(application no. 32399/08).
The
Government further maintained that the competent authority which
received and assessed the asylum applications had been the Ministry
of the Interior, which took into consideration the advisory opinions
of the Ministry of Foreign Affairs and the UNHCR. They submitted that
if his or her asylum or temporary residence request was rejected, an
applicant had the opportunity to file an objection against the
first-instance decision pursuant to section 12 of Circular no. 57.
Asylum seekers could also apply to the administrative courts
requesting the annulment of the negative decision given in respect of
their asylum request and of the decision to deport them. In that
connection the Government submitted that an Iranian national, A.A.,
who had illegally entered Turkey, had challenged the deportation
decision taken in his respect before the administrative courts and
had been given temporary residence in Karaman following his
application to the Court (application no. 23980/08).
The
Government contended that the domestic authorities complied with the
time-limits in processing asylum and temporary asylum applications,
whereas refugee status determinations conducted by the UNHCR in
Turkey took several months and sometimes years. They also drew the
Court's attention to the fact that, between 2006 and 2008, the UNHCR
had settled only two persons in a third country.
The
Government finally submitted that the applicants could have had
access to legal assistance while in detention had they asked for it.
They noted in that connection that an asylum seeker detained in the
Kumkapı guest house had recently had access to a lawyer and
provided him with a power of attorney. They further asserted that
authorisation for the UNHCR's access to detained asylum seekers was
given by the competent authorities if sufficient reasons for such
access were given.
2. The applicants
The
applicants maintained that they had sought asylum and temporary
residence permits on numerous occasions and that the authorities
automatically and consistently refused them access to the asylum
procedure. They had never been interviewed and their claims that they
would be at risk of persecution, ill-treatment and death if deported
had never been assessed by the authorities. The applicants further
claimed that they had been denied judicial review of the decision to
deport them as they had not been served with the deportation orders.
They noted that judicial review in Turkey was in any case
ineffective, given that the administrative courts did not have the
authority to examine the merits of the administrative authorities'
decisions refusing asylum. The applicants finally maintained that
they had been denied access to a lawyer when they had been in the
Hasköy police headquarters. In Kırklareli Foreigners'
Admission and Accommodation Centre their efforts to have official
legal representation had failed since they had not had valid identity
documents. As they had been refused leave to file asylum applications
by the authorities, they had not been able to obtain identity cards
under section 3 of Circular no. 57.
B. The third party's submissions
The
UNHCR submitted that in Turkey it conducted Refugee Status
Determinations (“RSDs”) parallel to the domestic
procedure for temporary asylum since, as a result of Turkey's
geographical limitation to the 1951 Geneva Convention, non-European
nationals were in need of international protection. The UNHCR had
established a presence in Turkey in 1960 and had been conducting RSDs
there since the mid 1980s. They maintained that RSDs by the UNHCR
were perceived by the national authorities as a measure of burden
sharing by the international community. Furthermore, the UNHCR was
implicitly recognised in the 1994 Regulation, which provided a
resettlement and assistance role for it.
The
UNHCR contended that all applicants registered with them in Turkey
were informed of the domestic procedure for seeking temporary asylum
and referred to the national authorities in accordance with the 1994
Regulation. If the UNHCR decided to recognise a person as a refugee
under the UNHCR's mandate, a refugee certificate was issued and the
UNHCR began to examine resettlement options for the person in
question. They maintained that usually the Turkish authorities waited
until the UNHCR reviewed a case before taking a decision on whether
to grant a temporary residence permit. The national authorities
generally agreed to grant temporary protection to those who were
recognised as refugees by the UNHCR. However, the UNHCR observed that
in the following cases the national authorities tended to refuse to
grant temporary residence permits: where a file was reopened after an
initial rejection by the UNHCR; applications by persons whose claims
were considered by the authorities to be in “bad faith”,
such as those submitted when arrested for lack of legal status in
Turkey; applications by persons applying for asylum at international
airports; asylum claims by persons who had been recognised under the
UNHCR's mandate as refugees outside Turkey; and applications by those
whose stay in Turkey was considered to be a threat to national
security.
The
UNHCR claimed that there had been instances of denial of protection
to persons recognised as refugees under the UNHCR's mandate. In
respect of five Iraqi refugees recognised by the UNHCR and deported
to Iraq, the Turkish authorities had invoked national security
reasons for their removal. These persons were denied access to the
temporary asylum procedure in Turkey and were at risk of direct or
indirect refoulement as they were detained and subject to
deportation either to the previous country of asylum or to the
country of origin. This had been the case of former PMOI members.
They
further submitted that the UNHCR in Turkey had encountered serious
difficulties in having detained refugees recognised under the UNHCR's
mandate before they moved to Turkey, as was the case for other
detained persons who were considered to be threats to national
security. The UNHCR noted that on 14 October 2008 they had been
orally informed by the representatives of the Ministry of the
Interior that the Ministry would not grant the UNHCR access to
detained refugees in respect of whom the Court had indicated an
interim measure under Rule 39 of the Rules of Court.
The
UNHCR further submitted that advocates had de jure access to
detained asylum seekers but often faced obstacles in practice. In
some detention facilities, such as Kumkapı Foreigners' Admission
and Accommodation Centre, they enjoyed unimpeded access to asylum
seekers, whereas in other centres access was problematic. Finally, as
detained foreigners were not always provided with a formal
deportation order prior to their removal, it was frequently the case
that the deportation could not effectively be challenged before the
national courts as no formal administrative decision had been taken.
C. The Court's assessment
The
Court reiterates at the outset that Article 13 guarantees the
availability at national level of a remedy to enforce the substance
of the Convention rights and freedoms in whatever form they might
happen to be secured in the domestic legal order. The effect of this
Article is thus to require the provision of a domestic remedy
allowing the competent national authority both to deal with the
substance of the relevant Convention complaint and to grant
appropriate relief, although Contracting States are afforded some
discretion as to the manner in which they conform to their
obligations under this provision. Moreover, in certain circumstances
the aggregate of remedies provided by national law may satisfy the
requirements of Article 13 (see Chahal, cited above, §
145).
Given
the irreversible nature of the harm which might occur if the alleged
risk of torture or ill-treatment materialised and the importance
which the Court attaches to Article 3, the notion of an effective
remedy under Article 13 requires (i) independent and rigorous
scrutiny of a claim that there exist substantial grounds for
believing that there was a real risk of treatment contrary to Article
3 in the event of the applicant's expulsion to the country of
destination, and (ii) a remedy with automatic suspensive effect (see
Muminov v. Russia,
no. 42502/06, § 101, 11 December 2008; Gebremedhin
[Gaberamadhien], cited above § 66; Jabari,
cited above, § 39).
In
the present case the Court observes at the outset that, within the
framework of the asylum and temporary asylum procedure governed by
the 1994 Regulation and Circular no. 57, non-European asylum seekers
who have been arrested after having entered Turkey illegally, such as
the applicants, can seek temporary asylum in Turkey pending their
resettlement in a third country. Pursuant to this secondary
legislation, this group of persons must be notified of the decision
taken in their respect and can lodge objections against the decision
taken at first instance within two days if the decision is negative.
The applicants and the third party noted that this group of persons
were generally prevented from having access to the temporary asylum
procedure, whereas the Government contested this allegation,
referring to the case of M.B. who had been granted a residence permit
in Turkey following his arrest for illegal entry into Turkish
territory. They also noted that A.A. had obtained a residence permit
by challenging his deportation in the administrative courts.
The
Court does not consider it necessary to compare the case of M.B. to
that of the applicants or draw inferences from it as the Government
did not submit any argument demonstrating that the circumstances of
the cases were similar. Nor did they submit any documents in support
of their submissions. As regards A.A., the Court notes that this
person applied to the administrative courts and challenged the
lawfulness of his detention in a foreigners'
admission and accommodation centre. The case he lodged with
the administrative court did not concern his threatened deportation.
The
Court observes that, when the applicants first entered Turkey, they
were deported to Iraq without their statements being taken by border
officials (see paragraph 11 above) and apparently without a formal
deportation decision being taken. The Government submitted that the
applicants had failed to request asylum when they first entered
Turkish territory. The Court is not persuaded by the Government's
argument, which was not supported by any documents. In the absence of
a legal procedure governing the applicants' deportation and providing
procedural safeguards, even if they had sought asylum when they
entered Turkey, there are reasons to believe that their requests
would not have been officially recorded.
The
Court further observes that when the applicants re-entered Turkish
territory and were arrested, they made oral and written submissions
to the police and clearly indicated that they were refugees under the
UNHCR's mandate. They explained their background, their affiliation
to the PMOI in the past, the nature of their activities within that
organisation and their departure from it. They also requested a
residence permit on the basis of temporary asylum and explicitly
asked for a lawyer (see paragraph 21 above). The applicants even
stated before the Muş Magistrates' Court,
which tried and convicted them for illegal entry into Turkey, that
they had left their country of origin as they risked being killed in
Iran. The judge merely noted that the applicants would be deported.
However, the applicants were not notified either of the decision to
deport them or of the reasons for the planned deportation. The
magistrates' court did not take statements from them regarding the
risks which they would allegedly face if deported to Iraq or Iran.
The
Court is struck by the fact that both the administrative and judicial
authorities remained totally passive regarding the applicants'
serious allegations of a risk of ill-treatment if returned to Iraq or
Iran. It considers that the lack of any response by the national
authorities regarding the applicants' allegations amounted to a lack
of the “rigorous scrutiny” that is required by Article 13
of the Convention.
Moreover,
the applicants were not given access to legal assistance when they
were arrested and charged, despite the fact that they explicitly
requested a lawyer. Their inability to have access to a lawyer
continued following their placement in the police headquarters in
Hasköy. The Government did not contest the allegation that the
director of the Muş branch of the Human Rights Association, an
advocate, was refused authorisation by the police to meet the
applicants on 30 June 2008. In these circumstances and having regard
in particular to the fact that the applicants requested a lawyer as
early as July 2008, the Court cannot accept the Government's argument
that they could have had access to legal assistance had they asked
for it, at least as regards the period that the applicants spent in
the Hasköy police headquarters.
A
remedy must be effective in practice as well as in law in order to
fulfil the requirements of Article 13 of the Convention. In the
present case, by failing to consider the applicants' requests for
temporary asylum, to notify them of the reasons for not taking their
asylum requests into consideration and to authorise them to have
access to legal assistance while in Hasköy police headquarters,
the national authorities prevented the applicants from raising their
allegations under Article 3 within the framework of the temporary
asylum procedure provided for by the 1994 Regulation and Circular no.
57.
What
is more, the applicants could not apply to the administrative and
judicial authorities for annulment of the decision to deport them to
Iraq or Iran as they were never served with the deportation orders
made in their respect. Nor were they notified of the reasons for
their threatened removal from Turkey. In any case, judicial review in
deportation cases in Turkey cannot be regarded as an effective remedy
since an application for annulment of a deportation order does not
have suspensive effect unless the administrative court specifically
orders a stay of execution of that order (see paragraph 59
above).
In
the light of the above, the Court concludes that, in the
circumstances of the case, the applicants were not afforded an
effective and accessible remedy in relation to their complaints under
Article 3 of the Convention as their allegation that their removal to
Iran or Iraq would have consequences contrary to this provision was
never examined by the national authorities. There has
accordingly been a violation of Article 13 of the Convention.
IV. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
The
applicants complained under Article 5 § 1 (f) of the Convention
that their detention was unlawful. They further
contended under Article 5 § 2 of the Convention that they
had not been informed of the reasons for their detention from 23 June
2008 onwards. They finally maintained under Article 5 § 4 of the
Convention that they were not able to challenge the lawfulness of
their detention. Article 5 §§ 1 (f), 2 and 4 read as
follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(f) the lawful arrest or detention of a
person to prevent his effecting an unauthorised entry into the
country or of a person against whom action is being taken with a view
to deportation or extradition.
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.
...
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
The
Government contested that argument.
A. The parties' submissions
The
Government submitted, as regards the applicants' allegations under
Article 5 § 1 of the Convention, that individuals who claimed
asylum after being arrested for illegal entry, illegal presence or
attempted illegal departure from Turkey were not detained but
sheltered in foreigners' admission and accommodation centres in
Turkey. They contended that “detention” was the
deprivation of liberty in accordance with a court decision whereas
the applicants were accommodated in the Kırklareli Foreigners'
Admission and Accommodation Centre. The reason for the applicants'
placement in this centre, which could not be defined as detention or
custody, was the authorities' need for surveillance of the applicants
pending the deportation proceedings. The Government contended that
this practice was not different from the practices in other countries
and that it was based on section 23 of Law no. 5683 and section 4 of
Law no. 5682.
The
Government did not make any submissions as regards the applicants'
allegations that they had not been informed of
the reasons for their detention and that there had not been a
remedy whereby they could challenge the lawfulness of their detention
in the Kırklareli Foreigners' Admission and Accommodation
Centre.
The
applicants submitted that their detention in the Hasköy police
headquarters, between 23 June and 26 September 2008, and in the
Kırklareli Foreigners' Admission and Accommodation Centre, from
26 September 2008 to date, did not have a proper legal basis.
They contended that it was not founded on any deportation order. Nor
had the authorities submitted any other ground for their already
excessively long detention. They also noted that they could not
properly communicate with the outside world. In their submissions,
the applicants referred to the report of the UN Working Group on
Arbitrary Detention in Turkey, according to which section 23 of Law
no. 5683 did not constitute a sufficient legal basis for the
detention of prospective deportees.
The
applicants contended that, following their conviction by the Muş
Magistrates' Court on 23 June 2008, they had continued to be detained
in the Hasköy police headquarters but had not been informed of
the reasons for their further incarceration.
The
applicants submitted that they did not have an effective remedy
within the meaning of Article 5 § 4 for a speedy review of the
lawfulness of their detention. They noted that the case of the
Iranian national, A.A., although not referred to by the Government in
the context of their submissions under Article 5, was not comparable
to their situation since that person had been served with an actual
deportation order and was due to leave Turkey imminently on the basis
of a visa from Sweden. In addition, it had taken almost two months to
decide the case brought by that person, a delay which could not meet
the “speedy judicial review” required by Article 5 §
4. His release had also been delayed; this person had been detained
for a period of one month following the administrative court's
decision.
B. The Court's assessment
1. Existence of a deprivation of liberty
The
Court notes that the Government contested the submission that the
applicants were deprived of their liberty within the meaning of
Article 5 of the Convention. The Court reiterates that, in
proclaiming the right to liberty, Article 5 § 1 contemplates the
physical liberty of the person and its aim is to ensure that no one
should be dispossessed of this liberty in an arbitrary fashion. In
order to determine whether someone has been “deprived of his
liberty” within the meaning of Article 5, the starting-point
must be his or her concrete situation, and account must be taken of a
whole range of criteria such as the type, duration, effects and
manner of implementation of the measure in question (see Amuur v.
France, 25 June 1996, § 42, Reports 1996 III).
In
the present case the applicants were arrested by gendarmerie officers
on 21 June 2008 and detained in the gendarmerie station until 23 June
2008 on the criminal charge of illegal entry into Turkey. On the
latter date, they were convicted as charged but the execution of
their sentence was deferred. Subsequently, on the same date they were
placed in the Hasköy police headquarters where they were held
until 26 September 2008, until their transfer to the Kırklareli
Foreigners' Admission and Accommodation Centre, which is administered
by the foreigners department of the Kırklareli police
headquarters. The Court therefore observes that the applicants have
been held by the police since 23 June 2008.
The
Court further observes that the applicants have not been free to
leave the Hasköy police headquarters or the Kırklareli
Foreigners' Admission and Accommodation Centre. Besides, they are
only able to meet a lawyer if the latter can present to the
authorities a notarised power of attorney. Furthermore, access by the
UNHCR to the applicants is subject to the authorisation of the
Ministry of the Interior. In the light of these elements, the Court
cannot accept the definition of “detention” submitted by
the Government, which in fact is the definition of pre-trial
detention in the context of criminal proceedings. In the Court's
view, the applicants' placement in the aforementioned facilities
amounted to a “deprivation of liberty” given the
restrictions imposed on them by the administrative authorities
despite the nature of the classification under national law. It
therefore concludes that the applicants have been deprived of their
liberty.
2. Compliance with Article 5 § 1
The
Court reiterates that Article 5 enshrines a fundamental human right,
namely the protection of the individual against arbitrary
interference by the State with his or her right to liberty.
Sub-paragraphs (a) to (f) of Article 5 § 1 contain an
exhaustive list of permissible grounds on which persons may be
deprived of their liberty and no deprivation of liberty will be
lawful unless it falls within one of those grounds. One of the
exceptions, contained in subparagraph (f), permits the State to
control the liberty of aliens in the context of immigration controls
(see A. and Others v. the United Kingdom [GC], no.
3455/05, §§ 162 and 163, 19 February 2009;
Saadi v. the United Kingdom [GC], no. 13229/03,
§ 43, ECHR 2008 ...).
Article
5 § 1(f) does not require the detention to be reasonably
considered necessary, for example to prevent the individual from
committing an offence or fleeing. Any deprivation of liberty under
the second limb of Article 5 § 1(f) will be justified as
long as deportation or extradition proceedings are in progress.
However, if such proceedings are not prosecuted with due diligence,
the detention will cease to be permissible under Article 5 §
1(f) (see A. and Others, cited above, § 164).
The
deprivation of liberty must also be “lawful”. Where the
“lawfulness” of detention is in issue, including the
question whether “a procedure prescribed by law” has been
followed, the Convention refers essentially to national law and lays
down the obligation to conform to the substantive and procedural
rules of national law. It requires in addition that any deprivation
of liberty should be in keeping with the purpose of Article 5,
namely to protect the individual from arbitrariness. In laying down
that any deprivation of liberty must be effected “in accordance
with a procedure prescribed by law”, Article 5 § 1
primarily requires any arrest or detention to have a legal basis in
domestic law. However, these words do not merely refer back to
domestic law. They also relate to the quality of the law, requiring
it to be compatible with the rule of law, a concept inherent in all
Articles of the Convention (see Amuur, cited above, §
50).
In
the present case the applicants alleged that they were not detained
with a view to deportation and that in any case their detention did
not have any legal basis in domestic law. The Government submitted
that the applicants were not detained within the meaning of Turkish
law but were accommodated pursuant to section 23 of Law no. 5683 and
section 4 of Law no. 5682 pending deportation proceedings.
The
Court notes at the outset that the applicants' detention in the
Hasköy police headquarters between 23 and 30 June 2008, before
Rule 39 was applied by the Court, may be considered as a
deprivation of liberty with a view to deportation as the Muş
Magistrates' Court noted in its judgment of 23 June 2008 that
the applicants would be deported (see paragraph 17 above). In
this connection the Court must ascertain whether the applicants'
detention actually had a legal basis in domestic law.
The
Court observes that the legal provisions referred
to above by the respondent Government provide that foreigners
who do not have valid travel documents or who cannot be deported are
obliged to reside at places designated by the Ministry of the
Interior. These provisions do not refer to a deprivation of liberty
in the context of deportation proceedings. They concern the residence
of certain groups of foreigners in Turkey, but not their detention.
Nor do they provide any details as to the conditions for ordering and
extending detention with a view to deportation, or set time-limits
for such detention. The Court therefore finds that the applicants'
detention between 23 and 30 June 2008 did not have a sufficient legal
basis.
The
same considerations are also applicable to the applicants' detention
from 30 June 2008 onwards. The Government have failed to submit any
argument or document indicating that the applicants' detention to
date has had a strictly defined statutory basis in domestic law. What
is more, following the Court's application of the Rule 39 measure on
30 June 2008, the Government could not have removed the
applicants without being in breach of their obligation under Article
34 of the Convention (see Gebremedhin [Gaberamadhien], cited
above, §§ 73 and 74). Therefore, any deportation
proceedings carried out in respect of the applicants would have had
to be suspended with possible consequences for the continued
deprivation of the applicants' liberty for that purpose. While it is
true that the application of Rule 39 does not prevent the applicants
from being sent to a different country – provided it has been
established that the authorities of that country will not send them
on to Iran or Iraq – the Government did not make any submission
to this effect either.
In
sum, in the absence of clear legal provisions establishing the
procedure for ordering and extending detention with a view to
deportation and setting time-limits for such detention, the
deprivation of liberty to which the applicants were subjected was not
circumscribed by adequate safeguards against arbitrariness (see
Nasrulloyev v. Russia, no. 656/06, § 77, 11 October
2007; Chahal, cited above, § 118; Saadi v. the United
Kingdom, cited above, § 74). The national system failed to
protect the applicants from arbitrary detention and, consequently,
their detention cannot be considered “lawful” for the
purposes of Article 5 of the Convention.
The
Court concludes that there has been a violation of Article 5 § 1
of the Convention.
3. Compliance with Article 5 § 2
The Court reiterates that Article 5 § 2 contains
the elementary safeguard that any person arrested should know why he
or she is being deprived of liberty. This provision is an integral
part of the scheme of protection afforded by Article 5: by virtue of
Article 5 § 2 any person arrested must be told, in simple,
non-technical language that can be easily understood, the essential
legal and factual grounds for the arrest, so as to be able, if he or
she sees fit, to apply to a court to challenge its lawfulness in
accordance with Article 5 § 4. Whether the content and
promptness of the information conveyed were sufficient is to be
assessed in each case according to its special features. The Court
notes there is no call to exclude the applicants in the present case
from the benefits of paragraph 2, as paragraph 4 makes no distinction
between persons deprived of their liberty by arrest and those
deprived of it by detention (see Shamayev and Others v. Georgia
and Russia, no. 36378/02, §§ 413 and 414, ECHR
2005 III).
The
Court observes that the applicants were arrested on 21 June 2008
and subsequently detained in police custody. On the same day they
signed a document according to which they had been informed of the
reason for their arrest. On 23 June 2008 they were convicted of
illegal entry. Yet they were not released from the Hasköy police
headquarters. Thus, from 23 June 2008 onwards they have not been
detained on account of a criminal charge, but in the context of
immigration controls. The Court must therefore assess whether, from
that date, the applicants were informed of this detention in
accordance with the requirements of Article 5 § 2 of the
Convention.
The
Court notes that the Government were explicitly requested to make
submissions as to whether the applicants had been informed of the
reasons for their detention and to provide the relevant documents in
support of their response. The Government failed to do so however. In
the absence of a reply from the Government and any document in the
case file to show that the applicants were informed of the grounds
for their continued detention, the Court is led to the conclusion
that the reasons for the applicants' detention from 23 June 2008
onwards were never communicated to them by the national authorities.
There
has therefore been a violation of Article 5 § 2 of the
Convention.
3. Compliance with Article 5 § 4
The Court reiterates that the purpose of Article 5 §
4 is to guarantee to persons who are arrested and detained the right
to judicial supervision of the lawfulness of the measure to which
they are thereby subjected (see, mutatis mutandis, De
Wilde, Ooms and Versyp v. Belgium, 18 June 1971,
§ 76, Series A no. 12). A remedy must be made available
during a person's detention to allow the individual to obtain speedy
judicial review of its lawfulness. That review should be capable of
leading, where appropriate, to release. The existence of the remedy
required by Article 5 § 4 must be sufficiently certain, not only
in theory but also in practice, failing which it will lack the
accessibility and effectiveness required for the purposes of that
provision (see, mutatis mutandis, Stoichkov v. Bulgaria,
no. 9808/02, § 66 in fine, 24 March 2005; Vachev
v. Bulgaria, no. 42987/98, § 71, ECHR 2004 VIII;
Chahal, cited above, § 127).
The
Court observes that the Government failed to make any submission
relevant to the present case demonstrating that the applicants had at
their disposal any procedure through which the lawfulness of their
detention could have been examined by a court.
Moreover,
the Court has already found that the applicants have not been
informed of the reasons for the deprivation of their liberty from
23 June 2008 onwards and that they were denied access to legal
assistance during their detention in the Hasköy police
headquarters (see paragraph 114 above). It considers that these
facts in themselves meant that the applicants' right to appeal
against their detention was deprived of all effective substance (see
Shamayev and Others, cited above, § 432). The Court
therefore considers that the second applicant's request to the
national authorities for release (paragraph 27 above) cannot provide
him with a remedy possessing the guarantees required by Article 5 §
4 of the Convention.
Accordingly,
the Court concludes that Turkish legal system did not provide the
applicants with a remedy whereby they could obtain judicial review of
the lawfulness of their detention, within the meaning of Article 5
§ 4 of the Convention (see S.D. v. Greece, no.
53541/07, § 76, 11 June 2009).
There
has therefore been a violation of Article 5 § 4 of the
Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Pecuniary Damage
The
applicants claimed 517 euros (EUR) in respect of pecuniary damage.
They alleged that the police had confiscated all their personal
belongings when they had been arrested and never returned 480
US dollars (USD), their mobile phone SIM cards, two belts and a
pair of sunglasses.
The
Government contested this claim, noting that there was no mention of
these items in the body search report drawn up when the applicants
were arrested.
The
Court rejects this claim, having regard to the fact that it has not
been established that the applicants had in fact been in possession
of the aforementioned items when they were arrested.
B. Non-pecuniary Damage
The
applicants claimed a total of EUR 60,000 in respect of non pecuniary
damage they had suffered as a result of the violations of their
rights under Articles 2, 3 and 13 of the Convention. They further
claimed EUR 100 for each day that they have spent in detention
since 23 June 2008 as compensation for non-pecuniary damage
sustained as a result of the violation of Article 5 §§ 1, 2
and 4 of the Convention.
The
Government contested these claims, submitting that the applicants'
allegations of violations of the aforementioned Articles were
baseless.
The
Court considers that the applicants must have suffered non pecuniary
damage which cannot be compensated solely by the finding of
violations. Having regard to the gravity of the violations and to
equitable considerations, it awards the applicants EUR 20,000 each
under this head.
C. Costs and expenses
The
applicants also claimed EUR 6,950 for the costs and expenses incurred
before the Court. In this connection they
submitted a time sheet indicating ninety hours' legal work carried
out by their legal representative and a table of costs and
expenditures.
The
Government contested this claim, noting that only costs actually
incurred could be reimbursed.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
finds it reasonable to award to the applicants, jointly, the sum of
EUR 3,500 for their costs before it. From this sum should be deducted
the EUR 850 granted by way of legal aid under the Council of Europe's
legal aid scheme.
D. Default interest
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
Declares the application admissible;
Holds that the applicants' deportation to Iran
or Iraq would be in violation of Article 3 of the Convention;
Holds that no separate issue arises under
Article 2 of the Convention;
Holds that there has been a violation of Article
13 of the Convention, in relation to the applicants' complaints under
Article 3 of the Convention;
Holds that there has been a violation of Article
5 §§ 1, 2 and 4 of the Convention;
Holds
(a) that
the respondent State is to pay the applicants within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts to
be converted into Turkish liras at the rate applicable at the date of
settlement:
(i) EUR 20,000
(twenty thousand euros) each in respect of non-pecuniary damage, plus
any tax that may be chargeable;
(ii) EUR
3,500 (three thousand five hundred euros) jointly in respect of costs
and expenses, less the EUR 850 (eight hundred and fifty euros),
granted by way of legal aid, plus any tax that may be chargeable to
the applicants;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 22 September 2009,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
Tulkens
Registrar President
