Press Release No: Individual Application 24/18
03.07.2018

PRESS RELEASE CONCERNING THE JUDGMENT FINDING A VIOLATION OF THE RIGHT TO AN EFFECTIVE REMEDY DUE TO HINDERING CONDUCT OF THE PUBLIC AUTHORITIES

On 24 May 2018, the Second Section of the Constitutional Court found a violation of the right to an effective remedy safeguarded by Article 40 of the Constitution in the individual application lodged by Yusuf Ahmed Abdelazım Elsayad (no. 2016/5604).

The Facts

The applicant is a citizen of Arab Republic of Egypt, and he entered Turkey through legal means. The security directorate of the city where the applicant went to received a report that a group of foreign nationals would be taken across the border of Syria illegally.

Upon the report, the foreign nationals including the applicant were arrested, and thereafter, the incumbent chief public prosecutor’s office ordered to hand over these foreigners to the provincial immigration authority which then decided to place the applicant in administrative detention for deportation.

Arguing that he might be subject to ill-treatment in case of being deported to his home country, the applicant sought international protection. He was not deported and thereupon transferred to the foreigners’ removal centre (“the removal centre”). The applicant’s lawyer applied to the removal centre and requested to meet his client. However, without a response to this request, the applicant was transferred to another removal centre located in another city.

The requests by the applicant’s lawyers to meet their clients were rejected by the removal centre where he had been transferred. Thereupon, his lawyers filed a criminal complaint before the chief public prosecutor’s office against the director of the relevant removal centre and asserted that the centre did not allow them to meet their clients to preclude them from bringing an action against the order for the applicant’s deportation within 15 days.

In the meantime, the applicant was relocated for the third time and transferred to another removal centre. The lawyer met the applicant at this centre and requested from authorities to examine the applicant’s case-file for bringing an action for the revocation of the deportation order. The lawyer was informed verbally that he could examine the case-file at a later time.

The lawyer visited a notary office for issuing a power of attorney on behalf of his client; however, the authorities of the removal centre stated that the applicant had neither an identity card nor a passport. Therefore, a power of attorney could not be issued.    

Having brought an action before the administrative court for revocation of the deportation order, the applicant asserted that a military coup d’état had taken place in his home country in 2013; that he was put by the new administration on the list of wanted persons due to his political background and position of his father-in-law as an anti-coup, opponent journalist; and that in case of returning to his home country, his life and liberty would be put at jeopardy. The incumbent administrative court dismissed the action as being out of time.

The Applicant’s Allegations

The applicant maintained that his right to an effective remedy was breached due to the restriction imposed on his opportunity to have recourse to a competent authority against the deportation order.

The Constitutional Court’s Assessment

Article 40 of the Constitution safeguards the right to request prompt access to the competent authorities (the right to an effective remedy) for everyone whose constitutional rights have been violated.

A foreigner ordered to be deported must be afforded with the opportunity to effectively challenge the order, as required by the obligation to guard against ill-treatment.

Within a short period of time after being placed in administrative detention, the applicant was transferred to three different detention centres located far away from one another. Besides, the applicant’s lawyer was not informed of the detention centres to which the applicant was transferred in spite of the written request in this respect. Moreover, there are allegations, which are not unfounded, that the lawyer’s requests to meet his client were impeded. It is further alleged that the applicant was not allowed to issue a power of attorney to his lawyer, nor was the lawyer allowed to examine the deportation file.

Regard being had to the applicant’s allegations together with the facts in support of these allegations, it has been concluded that the applicant’s alleged failure to bring an action before the administrative court within the prescribed period due to the hindering conduct of the public authorities is not unfounded.

On the other hand, in the criminal complaint filed with the chief public prosecutor’s office, the applicant expressed his concerns about the expiry of the prescribed period and brought an action within fifteen days following his first meeting with his lawyer. Therefore, it cannot be concluded that the applicant acted without due diligence in bringing an action within the statutory period.

It has been observed that the administrative court confined itself to a formal examination concerning the time limit for taking legal action and did not take the applicant’s other related allegations into consideration.

In the present case, it cannot be said that the applicant was afforded with an effective remedy concerning the alleged infringement of prohibition of ill-treatment due to the administrative court’s failure to take into consideration the allegations –supported by concrete facts– of the applicant who, for being under the State’s protection, is in a disadvantageous position vis-à-vis the State in proving the allegations. The applicant must not be deported until the conclusion of the re-trial process in order for redressing the consequences of the infringement.    

For the reasons explained above, the Court found a violation of the right to an effective remedy, which is safeguarded by Article 40 of the Constitution, in conjunction with Article 17 of the Constitution.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

The Constitutional Court of the Republic of Turkey © 2019