Press Release No: Individual Application 10/17
09.05.2017

PRESS RELEASE ON THE JUDGMENT CONCERNING THE FACT THAT DEPORTATION OF A FOREIGN FAMILY ENTERING INTO THE COUNTRY THROUGH LEGAL MEANS DID NOT BREACH THE PROHIBITION OF ILL-TREATMENT

On 1 March 2017, the Plenary of the Constitutional Court held, with regard to the individual application lodged by A.A. and A.A (App. No: 2015/3941), that there had been no violation of the prohibition of ill-treatment guaranteed in Article 17 of the Constitution.

The Facts

The applicants are married and the Iraqı citizens, who entered into Turkey through legal means together with their four children on 2 March 2014. When the applicants, who applied for residence permit before the expiry of their visa for staying in Turkey and got an appointment for interview on 7 July 2014, arrived in the Istanbul Security Directorate for interview, they were taken under administrative custody and then placed in the Kumkapı Removal Centre. By the decision of 7 July 2014 taken by the Immigration Authority Directorate of the Istanbul Governorship, the applicants were ordered to be deported on the ground that they had entered into the country despite being prohibited from entering into Turkey.

Subsequently, the applicants individually filed an action before the Administrative Court on 19 August 2014 for the revocation of the deportation order. In their complaint petitions which were completely of the same content, they maintained that they were an opponent to the current government in Iraq and that in case of being deported, they would be killed or ill-treated. They also indicated that their home located in Iraq was demolished after being bombed by the terrorist organization namely the DAESH and accordingly submitted certain photos in respect thereof.  

In the defence submissions presented by the Istanbul Governorship to the Administrative Court on 30 October 2014, it was indicated that a judicial action was taken in respect of the applicants and that a decision prohibiting their entrance into the country had been taken as they were posing a threat to public security. However, the judicial action taken in respect of them was not clarified therein. The 1st Chamber of the Istanbul Administrative Court held that the defence submission of the Governorship was not submitted within the prescribed period. In the letter of the Undersecretariat of the National Intelligence Organization (“the MIT”) which was included in the case-file during the proceedings, it was stated that “foreign citizens who have relation with terrorism have entered / will enter into the regions where armed clashes are taking place in Syria through Turkey, and the applicants may be among such persons”. The Governorship’s defence submissions and the opinion of the Undersecretariat of the MIT were not served on the applicants. By its decisions of 21 January 2015, the 1st Chamber of the Istanbul Administrative Court separately dismissed the applicants’ actions.

The Applicant’s Allegations

The applicants maintained that they had entered into Turkey together with their four children on 2 March 2014; that on a subsequent date following their entry into the country, a prohibition of entry into the country was imposed in respect of them; and that although they had applied for a residence permit within the prescribed period, their deportation was ordered. They also asserted that the grounds of their deportation and the defence submission of the administration were not served on them during the proceedings; that they had arrived in Turkey due to the internal disturbance and armed clashes taking place in Iraq; that the DAESH terrorist organization had bombed their home and their lives were not at safe in their own country; that in case of being deported, their lives would be endangered and they would be subject to ill-treatment.

The Court’s Assessment

In brief, the Constitutional Court made the following assessments within the scope of this allegation:

The Constitution does not entail any arrangement concerning the foreigners’ entry into the country, their residence and deportation from the country. As is also acknowledged in the international law, this issue falls within the scope of the state’s jurisdiction. It is therefore undoubted that state has a margin of appreciation in accepting the foreigners into the country or in deporting them. However, it is possible to lodge an individual application in the event that such procedures constitute an interference with the fundamental rights and freedoms guaranteed in the Constitution.

When Articles 17, 5 and 16 of the Constitution are interpreted in conjunction with the relevant provisions of the international law and especially the Geneva Convention to which Turkey is a party, the protection of foreigners who are under the State’s jurisdiction and likely to be subject to ill-treatment in the country where they are sent against the risks directed towards their physical and spiritual entity is one of the positive obligations of the state.

Within the scope of this positive obligation, the person to be deported must be provided with the opportunity to raise an objection to the deportation order, for offering a real protection against the risks that person may face with in his own country. 

If it is alleged that the prohibition of ill-treatment would be breached in the country where the foreigner would be sent as a result of the act of deportation, the administrative and judicial authorities must inquire in detail whether there is a real risk of ill-treatment in that country. As required by the above-cited procedural safeguards, the deportation orders taken by the administrative authorities must be examined by an independent judicial organ; during this examination period, the deportation orders must not be enforced, and the parties are ensured to effectively take part in the proceedings.

However, the obligation to protect the individuals from ill-treatment does not necessarily require carrying out such inquiry in each act of deportation. For this obligation to be at stake, the applicant must primarily assert a defendable (ascertainable / questionable / worth to be inquired / causing reasonable suspicion) allegation. In this sense, the applicant must explain what the risk of ill-treatment, he has alleged to occur in the country to which he would be sent, in a reasonable manner; must submit (if any) the information and documents in support this allegation, and such allegations must attain a certain level of severity. However, as the assertion of a defendable allegation may vary by characteristics of each concrete case, an assessment must be made in each incident.

In order to conclude that the prohibition of ill-treatment may be breached in case of the enforcement of the deportation order, it must be proven that existence of a risk in the country where the person would be sent is beyond a probability and attains a level of “real risk”. The burden of proof in this respect may be on the public authorities and/or the applicant, by the very nature of the allegation.

In the event that the risk in the country where the person would be sent is alleged to arise from persons or groups that are not public officers, the applicant must prove both the existence of this risk and the fact that the public authorities of the relevant country would remain insufficient to afford sufficient protection for the elimination of this risk.

Undoubtedly, the applicant’s allegations that their home had been bombed by the DAESH terrorist organization and that their physical and spiritual entity would be endangered in case of being deported are not unfounded. However, it is not possible to accept that every allegation of running away from a terrorist organization is not per se defendable. The applicants are required to reasonably explain the current and probable risks concerning their personal situations and to submit, if any, information and documents in respect thereof. 

The applicants submitted certain photos by asserting that their home had been bombed by the DAESH terrorist organization. In the action dealt with by the Administrative Court, it has been observed that a certain part of the procedural safeguards that must be provided within the scope of the prohibition of ill-treatment (the obligation to carry out inquiry, effective participation in the proceedings) was not afforded; and that the applicants failed to make an explanation to prove that these photos were of their own home both in the course of the proceedings and the individual application. What is more important, the applicant’s refraining from giving information about from which region of Iraq they had come makes difficult reaching the conclusion that their allegations are true.

In the reports issued by the international human rights organizations, it is indicated that the DAESH is effective not throughout Iraq but in certain regions of the country. Neither is there an assessment concerning the fact that the Iraqı Government remains insufficient to ensure safety of its citizens in the regions under its control.

As regards the applicant’s assertion that “they are in dispute with the Iraqi government”, there is no need to make a further assessment in respect thereof as there is no allegation that the Iraqi government has ill-treated or may ill-treat the applicants due to a dispute nature of which is not known.

Consequently, having reached the conclusion that the applicant’s allegations that they may be subject to ill-treatment in their own country in case of being deported are not of defendable nature, the Constitutional Court held that there had been no breach of the prohibition of ill-treatment guaranteed in 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 © 2015
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