European Court of Human Rights

SECOND SECTION

DECISION

Application no. 22872/11
Tesfamhret HABTEMARIAM and others
against Turkey

The European Court of Human Rights (Second Section), sitting 3 April 2012 as a Committee composed of:

Isabelle Berro-Lefèvre, President,
Guido Raimondi,
Helen Keller, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

Having regard to the above application lodged on 11 April 2011,

Having deliberated, decides as follows:

THE FACTS

The applicants, Tesfamhret Habtemariam, Awet Yohannes and Simon Yosef, are Eritrean nationals who were born in 1988, 1989 and 1986, respectively. Their place of residence is not known. They were represented before the Court by Ms S. Uludağ, a lawyer practising in Istanbul.

A.  Facts concerning the events before and after the applicants’ arrival to Turkey

The applicants claim that they were forced military conscripts in Eritrea and fled to Sudan after having deserted the army.

On 5 April 2011 they flew to Turkey through Israel and stayed at the international transit zone of the Istanbul Ataturk Airport without trying to enter the country.

On 8 April 2011, according to the applicants’ submissions, they handed in a letter to the airport authorities, requesting asylum and access to the UNHCR. They argue that their requests were disregarded and that they were beaten severely and were forced to sign waivers for their deportation to Israel.

On 9 April 2011 they tried to enter Turkey without passports and were arrested by the authorities under the “inadmissible person” (INAD) procedure pursuant to the Covenant on International Civil Aviation.

On 10 and 11 April 2011 respectively, the authorities returned the applicants back to Israel under the INAD procedure.

B.  Procedure before the Court

On 11 April 2011 one of the applicants got in touch with their representative and informed her of their case. On the same day the representative lodged the present application with the Court, claiming that the applicants were being deported to Eritrea, via Israel. She requested the Court to stop their deportation under Rule 39 of the Rules of Court.

Later during the same day, the President of the Chamber to which the case had been allocated decided to indicate to the Government, under Rule 39, that the applicants should not be deported to Eritrea until 6 May 2011. The applicants’ representative was invited to submit powers of attorney, authorising her to bring an application before the Court on behalf of the applicants.

Meanwhile, before the communication of the interim measure to the Government, the applicants were sent back to Israel by the authorities.

On 19 May 2011, after having been informed about the applicants’ deportation, the applicants’ representative was requested to indicate whether the applicants wished to maintain their application. On 2 June 2011 she confirmed their intention to pursue the application.

By a letter dated 12 October 2011, sent by registered post, the applicants’ representative was invited once more to send the required authority forms until 9 November 2011. Her attention was drawn to Article 37 § 1 (a) of the Convention, which provides that the Court may strike a case out of its list of cases where the circumstances lead to the conclusion that the applicant does not intend to pursue the application. According to the information obtained from the official website of the Turkish Postal Service, on 20 October 2011 that letter was delivered to the recipient. However, no response has been received to date.

COMPLAINTS

The applicants argued under Articles 2 and 3 of the Convention that their removal to Eritrea, directly or via Israel, would expose them to a real risk of persecution. In this respect, they invoked Article 13 of the Convention, claiming that there had been no effective domestic remedy available to them whereby they could have their allegations under Articles 2 and 3 examined.

They further maintained under Article 3 of the Convention that they had been subjected to ill-treatment by the airport authorities.

Relying upon Article 5 §§ 1 and 2 of the Convention, the applicants complained that they had been held at the Istanbul Atatürk Airport without there being any legal basis and that they had not been informed of the reasons of their detention. They maintained under Article 5 §§ 4 and 5 that they had not had access to any domestic remedy to request their release, challenge the lawfulness of their detention or claim compensation for the unlawful deprivation of liberty.

Finally, the applicants maintained under Article 34 of the Convention that they had been denied direct access to their representative.

THE LAW

The Court notes that the applicants introduced their application through their representative, Ms S. Uludağ, and have never been in contact with the Court directly. However, despite repeated requests, the last one of which was made on 12 October 2011 through registered post, their representative has failed to submit the requited authority forms.

The Court considers it essential for representatives to demonstrate that they have received specific and explicit instructions from the alleged victims within the meaning of Article 34 of the Convention on whose behalf they purport to act. In the present case, it observes that the file contains no document in which the applicants have indicated that they wished Ms Uludağ to lodge an application with the Court on their behalf.

Consequently, in the circumstances of the case, the application must be rejected for being incompatible ratione personae, pursuant to Article 35 §§ 3 and 4 of the Convention (see, mutatis mutandis, Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009; K.M. and Others v. Russia (dec.), no. 46086/07, 29 April 2010; and Çetin v. Turkey (dec.), no. 10449/08, 13 September 2011).

For these reasons, the Court unanimously

Declares the application inadmissible.

Françoise Elens-Passos Isabelle Berro-Lefèvre
Deputy Registrar President