REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 SECOND SECTION

JUDGMENT

AZIZJON HIKMATOV

(Application no. 2015/18582)

10 May 2017

THE FACTS

[8-36] The applicant is a citizen of Uzbekistan, who entered into Turkey through legal means in 2009. He requested to be granted international protection from Turkey by maintaining that he had become a target in his country for involving in political protests against the government during the period when he was a university student and that the opponents were exposed to duress and oppression in his country. The applicant, who was referred to Gaziantep for the completion of the necessary procedures concerning his request, got married with another citizen of Uzbekistan, S.K., with whom he had got acquainted there. They have two children who were born in 2011 and 2012. The applicant and his family were granted a temporary residence permit until the conclusion of their request for international protection, on condition of not leaving Gaziantep without permission. On 30 June 2010, the applicant was granted temporary refugee status by the Office of the United Nations High Commissioner for Refugees (“the UNHCR”) upon his application for asylum.

On 15 March 2015, the applicant was arrested while travelling in a vehicle with a Syrian plate which was stopped by the police teams of the Kilis Security Directorate. It was revealed that he did not have any identity card with him. The security officers considered that the applicant, in company with four other persons, tried to enter into certain regions of Syria, where clashes were taking place, through illegal means. However, the applicant maintained that as there was limited number of job opportunities in Gaziantep, he was going not to the region where the clashes were going on but to the safe area, with a view to selling some objects. As a result of the vehicle-search conducted, the police officers found a camouflage (winter coat) owner of which was not known. The applicant submitted documents and certificates indicating that he knew Arabic and that he received trainings in the field of marketing.

Upon these incidents, the applicant’s request for granting international protection was dismissed by the Immigration Authority of the Batman Governorship. A ban on entering into the country was imposed on him, and his deportation was ordered on 14 May 2015  for posing a threat to public safety.

The action brought by the applicant for annulment of the deportation order was dismissed by the Batman Administrative Court (the Administrative Court) on 4 November 2015. This decision did not include any examination or assessment as to the applicant’s allegation that in case of his deportation, he might be killed or would be ill-treated in Uzbekistan.

The applicant became aware of this decision on 4 December 2015. Thereupon, the applicant lodged an individual application for an interim measure on the same date. The Second Section of the Constitutional Court decided to suspend the deportation order, as a measure, pursuant to Article 73 of the Internal Regulations of the Court.

V. EXAMINATION AND GROUNDS

37. The Constitutional Court, at its session of 10 May 2017, examined the application and decided as follows.

A. Request for Legal Aid

38. It has been understood that the applicant has been unable to afford to pay the litigation costs. Therefore, in accordance with the principles set out in Mehmet Şerif Ay  judgment of the Constitutional Court (no. 2012/1181, 17 September 2013), in order not to cause financial difficulties to the applicant, his request for legal aid should be accepted for not being manifestly ill-founded.

B. Alleged Violation of the Prohibition of Ill-treatment

1. The Applicant’s Allegations

39. The applicant maintained; that when he had been a student in his home country Uzbekistan, he had attended youth movements and had been targeted by the government for displaying opposing conduct; that it was not possible for the members of the Islamic religion to live their religion openly or secretly; and that he had fled from his country and taken refuge in Turkey in 2009 as he had been under the threat of being oppressed.

40. The applicant also stated that he got married in Turkey and had two children and had been living in Gaziantep together with his family since 2010 and that he had never been subject to any criminal or administrative investigation.

41. The applicant further indicated; that he had got marketing and trading education and had been engaging in trade to earn his living; that he had been planning to trade through Azez that was very close to the border of Turkey and a safe area; and that he had never been in the conflict regions.

42. In addition, the applicant referred to the human right reports issued by organizations such as the Human Rights Watch and the Amnesty International concerning Uzbekistan, as well as the statements of the former British Ambassador to Uzbekistan on human rights violations in the country.

43. The applicant lastly maintained that violations of human rights were very common in Uzbekistan where there were systematic tortures in prisons; and that in case of being deported to his country, he would face with the risk of being killed or ill-treated. He accordingly claimed pecuniary and non-pecuniary compensation and requested legal aid.

2. The Court’s Assessment

44. Article 17 §§ 1 and 3 of the Constitution, titled “Personal inviolability, corporeal and spiritual existence of the individual”, provides as follows:

“Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence.

…

No one shall be subjected to torture or mal-treatment; no one shall be subjected to penalties or treatment incompatible with human dignity.”

45. Article 5 of the Constitution, titled “Fundamental aims and duties of the State”, in so far as relevant, provides as follows:

“The fundamental aims and duties of the State are to safeguard … the Republic and democracy, to ensure the welfare, peace, and happiness of the individual and society; to strive for the removal of political, economic, and social obstacles which restrict the fundamental rights and freedoms of the individual in a manner incompatible with the principles of justice and of the social state governed by rule of law; and to provide the conditions required for the development of the individual’s material and spiritual existence.”

46. The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). The applicant’s allegations that he would face the risk of being killed or being subject to ill-treatment if returned to his home country have been examined within the scope of the prohibition of ill-treatment and no separate assessment has been needed under the right to life.

a. Admissibility

47. Alleged violation of the prohibition of ill-treatment must be declared admissible for not being manifestly ill-founded and there being no other grounds for its inadmissibility.

b. Merits

i. General Principles

48. 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 (see A.A. and A.A. [Plenary], no. 2015/3941 , 1 March 2017, § 54).

49. Article 17 § 1 of the Constitution also safeguards the right to protect and improve corporeal and spiritual existence, as well as the right to life. Article 17 § 3 provides that no one shall be subjected to “torture or mal-treatment” and that no one shall be subjected to penalties or treatment “incompatible with human dignity”. As can also be understood from the systematic of the relevant article, the corporeal and spiritual existence of the individual that is generally safeguarded by the first paragraph is specifically protected against ill-treatment in the third paragraph (see A.A. and A.A., § 55).

50. The relevant article does not include any exceptions to the State’s obligation (negative) not to impose ill-treatment. It is also specified in Article 15 of the Constitution allowing for the suspension of the exercise of the fundamental rights and freedoms in times of war, mobilization, martial law or a state of emergency that the integrity of the corporeal and spiritual existence cannot be impaired. This is a clear indication that the prohibition of ill-treatment is absolute (see A.A. and A.A., § 56).

51. However, in order to consider that the rights protected by this prohibition are actually guaranteed, it is not sufficient that the State does not impose ill-treatment. The State is also expected to protect the individuals against any ill-treatment by its own officials and third parties (see A.A. and A.A., § 57).

52. As a matter of fact, pursuant to Article 5 of the Constitution, it is among the aims and duties of the State “to provide the conditions required for the development of the individual’s material and spiritual existence”. When Articles 17 and 5 of the Constitution are considered together, it is understood that the State also has an obligation (positive) to protect the individuals against the prohibition of ill-treatment (see A.A. and A.A., § 58).

53. 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 (see A.A. and A.A., § 59).

54. 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 he may face in his own country. Otherwise, it will not be possible to mention that a real protection has been provided to a foreigner who has claimed to be at risk of ill-treatment if deported and who has more limited opportunities than the State to prove his claim (see A.A. and A.A., § 60).

55. Accordingly, the positive obligation to protect against ill-treatment –by the very nature of the rights protected by the said prohibition- undoubtedly includes the procedural guarantees providing a foreigner to be deported with the opportunity to “make his allegations investigated” and “have the deportation order against him examined on an equitable basis” (see A.A. and A.A., § 61).

56. In this scope, if it is claimed that the prohibition of ill-treatment would be breached in the country where the foreigner would be sent through 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 must be ensured to effectively take part in the proceedings (see A.A. and A.A., § 62).

57. However, the obligation to protect the individuals from ill-treatment does not necessarily require carrying out such inquiry in every case of deportation. For this obligation to be at stake, the applicant must primarily assert a defendable (ascertainable/questionable/worth to be investigated/causing reasonable suspicion) allegation. In this sense, the applicant must explain what the risk of ill-treatment alleged to occur in the country to which he would be sent, in a reasonable manner; he must submit (if any) relevant information and documents in support the allegation; and such allegations must attain a certain level of severity. However, as the assertion of an arguable allegation may vary by characteristics of each case, an assessment must be made in the specific circumstances of each case (see A.A. and A.A., § 63).

58. Accepting an allegation as arguable does not necessarily mean that a violation judgment will be rendered at the end of the proceedings. This acceptance solely means that the applicant's allegations worth to be investigated. The authenticity of the applicant's allegations about the risks he may face due to the circumstances of the country he will be sent to or his personal situation and the reasonableness of his explanations should be rigorously investigated. When investigating the accuracy of the allegation and/or the existence of risk, it is possible to make use of reports issued by national or international institutions and organizations or other sources that may provide information about the concrete case (see A.A. and A.A., § 64).

59. 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. The following criteria for burden of proof should also be taken into account in the assessment of whether an allegation is arguable or not (see A.A. and A.A., § 65).

60. First, the applicant may claim that he would be subject to ill-treatment due to the long-standing general political instability in the receiving country or internal disturbance throughout the country. In this case, it must be established by the public authorities that the general conditions of the country in question will not objectively violate the prohibition of ill-treatment (see A.A. and A.A., § 66).

61. Secondly, it may be claimed that the public authorities of the receiving country have systematically ill-treated people for reasons such as ethnic origin, religious beliefs, political views or membership in a particular group. In such a case, public authorities are required to investigate whether persons or groups of the specified characteristics have been subjected to ill-treatment in their country. On the other hand, the applicant must prove that he belongs to or a member of such groups alleged to be at risk (see A.A. and A.A., § 67).  

62. Thirdly, the risk alleged to be prevailing in the receiving country may directly arise from the applicant’s personal situation, irrespective of his membership of or belonging to any group. In this case, the applicant must explain why he would be subjected to ill-treatment in the receiving country and should clearly put forth the facts that would prove his allegation (see A.A. and A.A., § 68). 

63. 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 the said risk (see A.A. and A.A., § 69).

64. As a rule, the circumstances at the date of the deportation decision should be taken into account when investigating the existence of material facts relating to the existence of a real risk. However, in case of significant developments that may directly affect the outcome of the assessment, the new situation should also be taken into account (see A.A. and A.A., § 70).

65. The primary role of the Constitutional Court in the individual applications lodged in this context is to examine whether the administrative and judicial authorities have provided the procedural safeguards within the scope of the said prohibition in cases where there is an arguable allegation as to the existence of the risk of ill-treatment in the receiving country. Where the Constitutional Court considers that the procedural safeguards have not been provided, it shall, as a rule, render a judgment finding a violation to have a retrial conducted. Where procedural safeguards have been provided, it is also assessed whether there is a real risk of ill-treatment in the receiving country (see A.A. and A.A., § 71).

66. However, the Constitutional Court may, exceptionally, examine at first-hand whether there is a real risk of ill-treatment in the receiving country where it deems it necessary in the particular circumstances of the case. In such a case, the Court may make an assessment as to whether the substantive aspect of the prohibition of ill-treatment would be violated, if the deportation took place (see A.A. and A.A., § 72).

ii. Application of Principles to the Present Case

67. In the present case, the applicant who had tried to cross the border of Turkey illegally was decided to be deported on the grounds that he posed a threat to the public safety, that he had been banned to enter the country and that his request for international protection had been rejected.

68. The applicant alleged that in case of being deported to his country, he would face the risk of being killed or ill-treated.

69. In the present case, it will primarily be examined whether there has been an arguable allegation as to the existence of the risk of ill-treatment in the receiving country, and if any, whether the administrative and judicial authorities have provided the procedural safeguards within the scope of the prohibition of ill-treatment.

70. Regard being had to the information and documents submitted by the applicant, the ECtHR’s assessments as to the conditions of the country where the applicant was deported, that fact that the applicant had entered into Turkey and had requested to be granted international protection at a date before the clashes took place in Syria (2009) and that the UNHCR granted the applicant temporary refugee status in 2010, it has been observed that the applicant’s allegations that he might be exposed to ill-treatment in his country are worth of being investigated.

71. At the subsequent stage, it will be examined whether the applicant’s arguable claim has been investigated, by the administrative and judicial authorities, in a comprehensive manner; in other words, whether the procedural safeguards within the scope of the prohibition of ill-treatment have been afforded in the course of the proceedings.

72. In the impugned incident, the administrative court indicated that the applicant was among the persons posing a threat to public safety; that he was banned from entering into Turkey; and that his request for granting international protection was dismissed. It accordingly held that the applicant’s deportation was not unlawful.

73. However, the allegations which had been consistently put forth by the applicant since 2009 primarily before the UNHCR and the Immigration Authority and subsequently during the proceedings before the Administrative Court were not taken into consideration. In the course of the proceedings, no investigation was conducted into the accurateness applicant’s allegations which have also been discussed in the ECtHR’s judgments and in the reports of the non-governmental organizations carrying out researches in the field of human rights. Nor did the Administrative Court’s decision include an assessment as to why these allegations were not relied on.

74. Accordingly, the obligation to conduct an investigation into and make an assessment as to the risk likely to be faced by the applicant in case of being deported to Uzbekistan was not fulfilled in the course of the administrative proceedings.

75. Consequently, the Constitutional Court has found a violation of the prohibition of ill-treatment safeguarded by Article 17 of the Constitution.

c.  Application of Article 50 of Code no. 6216

76. Article 50 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, reads as follows:

“1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not.   In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled…   

(2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed.   In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown.   The court, which is responsible for holding the retrial, shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

77. Pursuant to Article 50 of Law no. 6216, where a judgment finding a violation is rendered at the end of the examination on the merits of the case, then compensation may be awarded or retrial may be ordered to redress the consequences of the violation or other solutions may be ordered according to the particular circumstances of the case.

78.  In the present case, it has been concluded that the prohibition of ill-treatment safeguarded by Article 17 § 3 of the Constitution has been violated.

79. As there is a legal interest in conducting retrial, in order to redress the consequences of the violation, for the purpose of investigating and assessing whether there is a real risk of ill-treatment in the receiving country, a copy of the judgment must be sent to the trial court.

80. However, following the amendment made to Article 53 § 3 of Law no. 6458 with the Decree Law no. 676, certain exceptions have been introduced to the provision which provided that a foreigner could not be deported within the period where he could challenge the deportation order or until the conclusion of the proceedings.

81. In accordance with the said amendment, the provision which provided that a foreigner could not be deported within the period where he could challenge the deportation order or until the conclusion of the proceedings shall not be applicable to i) those heads, members or supporters of terrorist organizations or benefit-oriented criminal organizations, ii) those posing a threat to the public order, public safety or public health, and iii) those who are considered to have relations with the terrorist organizations defined by the international institutions and organizations.

82. In the present case, a deportation order was issued against the applicant on the ground that he posed a threat to the public safety. Therefore, there is no obstacle to the applicant’s deportation during the retrial to be held before the administrative court after the violation judgment of the Constitutional Court (see YT [Interlocutory Injunction], no. 2016/22418, 1 November 2016). If the applicant is deported during the investigation period of whether he will face a real risk of ill-treatment in the receiving country, a serious danger to his material or moral integrity may arise.

83. In such a case, holding a retrial will not be sufficient to redress the consequences of the violation. In addition, the applicant should not be deported until the conclusion of the retrial.

84. The applicant claimed pecuniary and non-pecuniary compensation.

85. As there is a prospect of redressing the violation and its consequences, sole finding of a violation is sufficient, therefore the applicant’s claim for non-pecuniary compensation should be rejected. 

86. In order for the Court to award pecuniary compensation, a causal link must be established between the pecuniary damages allegedly sustained by the applicant and the violation found. As the applicant failed to submit any document to substantiate his claim for pecuniary damages, his claim must be rejected.

87. The counsel fee of 1,800 Turkish liras (TRY) must be reimbursed to the applicant.

VI.  JUDGMENT

For the reasons explained above, the Constitutional Court UNANIMOUSLY held on 10 May 2017 that

A. The applicant’s request for legal aid be ACCEPTED;

B. Alleged violation of the prohibition of ill-treatment be DECLARED ADMISSIBLE;

C. The prohibition of ill-treatment safeguarded by Article 17 of the Constitution was VIOLATED;

D. A copy of the judgment be SENT to the Batman Administrative Court (E.2015/1142, K.2015/2394) to conduct retrial in order to redress the consequences of the violation of the prohibition of ill-treatment;

E. The applicant NOT BE DEPORTED until the conclusion of the retrial;

F. The applicant’s claim for compensation be REJECTED;

G. The counsel fee of TRY 1,800 be REIMBURSED to the applicant;

H. The payments be made within four months as from the date when the applicants apply to the Ministry of Finance following the notification of the judgment; In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date;

I. A copy of the judgment be SENT to the Directorate General of Migration Management of the Ministry of Interior; and

J. A copy of the judgment be SENT to the Ministry of Justice.