THE FACTS

[10-35] The applicant, having entered Turkey legally, married to a Turkish woman and had four children.

In the course of the routine control carried out by the law enforcement officers, it was understood that an exclusion order had been issued in respect of the applicant. The Provincial Immigration Authority ordered on 30 September 2016 that the applicant would be placed in administrative detention for deportation. The Law no. 6458 on Foreigners and International Protection that was in force at the material time provided that in case of judicial appeal, the deportation order shall not be executed until the finalization of the appeal proceedings.

Meanwhile, amendments were made to Law no. 6458 with the Decree Law no. 676 that was published in the Official Gazette dated 29 October 2016 and additional provisions were included in the Law. Accordingly, it is stipulated –unlike the previous version of the provision– that the deportation process shall not be suspended in respect of the foreigners ordered to be deported, during the period prescribed for appeal or during the appeal stage.

In accordance with the said amendment, the applicant’s deportation was ordered. The applicant brought an action for annulment also requesting the stay of execution before the administrative court, stating that he was a Turkish national and came to Turkey for having been subjected to torture. The applicant’s request was rejected and the case was dismissed as being time barred, without any assessment as regards the alleged ill-treatment.

The applicant claimed that the deportation order against him was enforceable at any time and that therefore the administrative court was no longer an effective remedy in practice. Thus, the applicant lodged an individual application with a request for interim measure on the same day when he brought an action before the administrative court.

V. EXAMINATION AND GROUNDS

36. The Constitutional Court, at its session of 30 May 2019, examined the application and decided as follows:

A.            Request for Legal Aid

37. It has been understood that the applicant has been unable to afford to the litigation costs without suffering a significant financial burden. Therefore, in accordance with the principles set out by the Court in the case of Mehmet Şerif Ay (no. 2012/1181, 17 September 2013), his request for legal aid has not been manifestly ill-founded and should be accepted.

B. As Regards the Right to an Effective Remedy in Conjunction with the Prohibition of Ill-treatment

1. The Applicant’s Allegations

38. The applicant submitted that he was a national of the Russian Federation, that he had been forced to flee his country due to his religion and political views, that he had entered Turkey legally and married a Turkish national, and that his physical and moral integrity would be under risk if he were to be repatriated. He followed that since the actions brought before administrative courts did not offer a prospect by itself of staying the execution of a deportation procedure, it was no longer an effective remedy in practice and that there was no other effective legal remedy than an individual application in this respect.

39. The applicant’s requests consisted of an interim measure on the deportation procedure, pecuniary and non-pecuniary compensation, anonymity in publicly available documents, and legal aid.

2. The Court’s Assessment

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

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

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

41. Article 5 of the Constitution, titled “Fundamental aims and duties of the State”, 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.”

42. Article 40 of the Constitution, titled “Protection of fundamental rights and freedoms”, provides as follows:

“Everyone whose constitutional rights and freedoms have been violated has the right to request prompt access to the competent authorities.

The State is obliged to indicate in its proceedings, the legal remedies and authorities to which the persons concerned should apply and the time limits of the applications.

Damages incurred to any person through unlawful treatment by public officials shall be compensated for by the State as per the law. The State reserves the right of recourse to the official responsible.”

43. 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 concerning the potential deprivation of his life or liberty in case of deportation are considered under Article 17 § 3 of the Constitution, whereas his complaints concerning the alleged inability of the action for annulment of the deportation order to offer an effective remedy are considered from the standpoint of Article 40 in conjunction with Article 17 of the Constitution. Since the application is regarded as a pilot case, the Court will not hold at this point a separate examination in respect of the prohibition of ill-treatment according to the conclusion of the examination to be held on the right to an effective remedy.

a. Admissibility

44. The applicant complains of an alleged lack of an effective judicial remedy that he can use to challenge the order for his deportation to a country where he will face the risk of ill-treatment. He alleges that there has been a violation of the right to an effective remedy, which he claims to be caused by a legislative amendment. Given that the allegations in question directly concern the merits of the case, the question of admissibility must be assessed together with the merits.

b. Merits

i. General Principles

45. In the cases of Yusuf Ahmed Abdelazim Elsayad (no. 2016/5604, 24 May 2018) and A.A. and A.A. ([Plenary], no. 2015/3941, 1 March 2017), the Court laid down the basic principles regarding the imposition of orders for deportation to a country where the person concerned faces the risk of ill-treatment and, in this connection, the right to an effective remedy. The above-mentioned judgments read, in so far as relevant, as follows:

“The Constitution does not entail any provisions concerning the aliens’ entry into the country, their residence in the country or removal from the country. As is also acknowledged in the international law, this issue falls within the scope of the State’s sovereignty. It is therefore undoubted that the State has a margin of appreciation in accepting aliens 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., § 54).

Article 17 § 1 of the Constitution also safeguards the right to protect and improve one’s corporeal and spiritual existence, as well as the right to life. Article 17 § 3 provides that no one shall be subjected to “torture or maltreatment” and that no one shall be subjected to penalties or treatment “incompatible with human dignity”. As can also be understood from the systematic structure 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).

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

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 read together, it is understood that the State also has an obligation (positive) to protect individuals against any breaches of the prohibition of ill-treatment (see A.A. and A.A., § 58).

When Articles 5, 16 and 17 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 State is under a positive obligation to protect aliens, who are under the State’s sovereign jurisdiction and likely to be subject to ill-treatment in the destination country, against the risks directed towards their physical and spiritual integrity (see A.A. and A.A., § 59).

Within the scope of this positive obligation, the person to be deported must be provided with the “opportunity to challenge” 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 say that a real protection has been provided to an alien 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).

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 an alien to be deported with the opportunity to “have his allegations investigated” and “have the deportation order against him examined fairly” (see A.A. and A.A., § 61).

In this scope, if it is claimed that the prohibition of ill-treatment would be breached in the country to which the alien 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-mentioned procedural safeguards, the deportation orders taken by the administrative authorities must be reviewed by an independent judicial organ; during this review period, the deportation orders must not be enforced, and the parties’ effective participation in the proceedings must be ensured (see A.A. and A.A., § 62).

Article 40 of the Constitution guarantees the right to request prompt access to the competent authorities (the right to an effective remedy) for everyone whose constitutional rights and freedoms have been violated (see Yusuf Ahmed Abdelazim Elsayad, § 59).

Accordingly, the right to an effective remedy may be described as ensuring that everyone who claims to have suffered a violation of one of his constitutional rights are provided with an opportunity to submit applications with administrative and judicial remedies that are reasonable, accessible, and capable of preventing the violation from taking place or ceasing its continuation or eliminating its consequences (i.e. offering adequate redress), whereby the person concerned can have his allegations examined in a manner compatible with the nature of the right at stake (see Yusuf Ahmed Abdelazim Elsayad, § 60).

It is not sufficient, in itself, that the legislation provides for a remedy through which alleged violations of fundamental rights and freedoms may be raised. The remedy in question must at the same time be effective in practice (i.e. offer a prospect of success). Nonetheless, the fact that a remedy is both legally and practically effective in general does not preclude an assessment as to whether there has been any interference with the right to an effective remedy in the present case (see Yusuf Ahmed Abdelazim Elsayad, § 61).

As per the foregoing principles, an alien whose deportation has been ordered must be provided access to an effective “opportunity to challenge” this order by virtue of the obligation to protect against breaches of the prohibition of ill-treatment. At first sight, it is understood that the procedural guarantees acknowledged to be inherently included with the said prohibition are of a similar nature as the guarantees under the right to an effective remedy (see Yusuf Ahmed Abdelazim Elsayad, § 62).

The right to an effective remedy contains, other than the guarantees oriented at the protection of the substance of the prohibition of ill-treatment, such guarantees that enable communication of alleged violations of the material right to the competent authorities. Indeed, according to the Court’s case-law, while the existence of an arguable claim equipped with strict criteria of proof is sought for an examination within the scope of the prohibition of ill-treatment (see A.A. and A.A., §§ 63, 71-74), a reasonable explanation on an alleged violation of the right to an effective remedy in conjunction with the said prohibition may be considered sufficient for an examination. Thus, violation of the right to an effective remedy is not dependent on the absolute violation of the prohibition of ill-treatment at the same time (see Yusuf Ahmed Abdelazim Elsayad, § 63).”

46. As it may be understood from the foregoing principles, in order to offer a real protection to a person subjected to a deportation order against the risks he might face in his country, the person concerned must be given an effective opportunity to challenge that order. This opportunity can only be provided through affording an effective remedy.

47. The right to an effective remedy may be described as ensuring that everyone who claims to have suffered a violation of one of his constitutional rights are provided with an opportunity to submit applications with administrative and judicial remedies that are reasonable, accessible, and capable of preventing the violation from taking place or ceasing its continuation or eliminating its consequences (i.e. offering adequate redress), whereby the person concerned can have his allegations examined in a manner compatible with the nature of the right at stake.

48. In the case of A.A. and A.A., the Plenary of the Constitutional Court indicated that the following procedural guarantees must be accorded in deportation procedures in respect of persons who claim that their right to life will be breached or that they will be subject to ill-treatment (ibid. § 62):

i. Review of deportation orders by an independent judicial organ;

ii. Non-execution of the deportation orders until the end of this review;

iii. Ensured participation of the parties in the proceedings.

49. The right to effectively enjoy a judicial remedy prescribed within the legal order must be afforded without discrimination to everyone who claims to face the risk of a breach of the right to life or the prohibition of ill-treatment. It is not sufficient for such a remedy to be simply provided for in the legislation but it also needs to offer a prospect of success in practice. Moreover, everyone who pursues such a remedy must be afforded not only a reasonable amount of time to allow for exercising the right to apply but also a statutory guarantee (which is outside the margin of appreciation enjoyed by administrative or judicial authorities) that will prevent a deportation in the process after the application until the application is concluded. In other words, where the right to life and the prohibition of ill-treatment are at stake, the relevant legislation has to automatically block the deportation procedure throughout the prescribed time-limit for filing an action on these allegations, as well as during the period until the relevant proceedings are concluded.

50. It would not constitute, by itself, a sufficient safeguard in terms of ensuring an effective judicial protection for the administrative and judicial authorities to have the capacity to cancel deportation procedures which do not stop automatically by virtue of the legislation.

51. The fact that judicial authorities have the power and capacity to stay the execution or the mechanisms for delivering decisions speedily is not sufficient, either, for ensuring the guarantees under the right to an effective remedy. Because, it does not seem possible to speak of an effective protection in this regard without laying down the legislative right of a system capable of guaranteeing these persons the ability to remain in the country during the prescribed time-limit for filing an action (before they have accessed to a court) and the ability to pursue their cases.

ii. Application of Principles to the Present Case

52. In brief, the application concerns the alleged lack of an effective remedy in practice through which the applicant could raise his allegations about the potential risk of ill-treatment he would face due to his political views and religious beliefs if he was deported to his country. To put differently, the applicant complained of the alleged inefficiency of the existing judicial system.

53. Law no. 6458 was published in the Official Gazette on 11 April 2013. Article 53 thereof came into force one year after its publication. The provision in the first version of Article 53 § 3 which read “... the alien concerned may not be deported throughout the prescribed time-limit for filing an action or, where an application has been made for a judicial remedy, until the proceedings are concluded” was originally envisaged to be applied in respect of all aliens regardless of the grounds for their deportation.

54. The automatic stay of execution rule under Article 53 § 3 of Law no. 6458 remained in force for over two years until it was amended by the Decree-law no. 676. In fact, during that period of time, the Court dismissed a number of requests for interim measure on grounds of non-execution of judicial remedies and the impossibility of execution of a deportation order during that process (see G.B. [Interim Decision], no. 2015/508, 16 January 2015).

55. The above-mentioned amendment, on the other hand, introduced certain exceptions to the rule that stayed the deportation procedures in respect of aliens throughout the prescribed time-limit for filing an action against the deportation order or until the end of the proceedings.

56. In the new system, the rule of staying the deportation procedure throughout the prescribed time-limit for filing an action against the deportation order or until the end of the proceedings is no longer applicable to cases where a deportation order has been issued in respect of leaders, members or supporters of terrorist or interest-seeking criminal organisations; persons who pose a threat to the public order, public safety or public health; and those who are deemed to be associated with the terrorist organisations as described by international institutions and organisations.

57. Consequently, even if the aliens who claim that they will face a breach of their right to life or be subjected to ill-treatment in their country file an action with the judicial authorities, some of them can no longer enjoy the opportunity to pursue their cases to the end or, at best, this question has been left to the discretion of the administration and the judiciary.

58. In the present case, an order was issued for the applicant’s deportation as he was reported to be of those who posed a threat to the public order, public safety or public health. The applicant raised his allegations concerning a risk of ill-treatment he would face in his country, which have been considered to be arguable claims, before the authorities of administrative justice and, at the same time, lodged an individual application with the Court. The Court found the applicant’s allegations arguable; thus, it stayed the execution of the deportation procedure by accepting his request for an interim measure. On the other hand, the administrative court dismissed the case as being time-barred as a result of a formalistic examination, without holding an assessment on the substance of the applicant’s allegations or paying regard to the date on which, according to the attorney, the deportation order had been notified. Therefore, the Court notes that the applicant’s allegations on the merits of his case have not been deliberated upon before the administrative court.

59. In the present case, the applicant expressed that he did not have the possibility of waiting for the outcome of the proceedings to be held before the administrative court as he faced the risk of deportation at any stage of the proceedings. The applicant’s allegations are not unsubstantiated in the sense that the proceedings before the administrative court have no longer been an effective remedy because they did not offer a prospect of success in practice. The applicant was not able to pursue his case before the administrative court without facing the risk of being deported. This clearly demonstrates that the guarantees indicated above under the head of “General Principles” could not be satisfied within the scope of the proceedings before the administrative court.

60. Nevertheless, the issue arising in the present case stems not from the administrative court’s practice or misinterpretation of the legislation but rather from the amendment made to Article 53 § 3 of Law no. 6458. The Court has understood that this amendment was incompatible with the right to life and the prohibition of ill-treatment under Article 17 §§ 1 and 3 of the Constitution and, in conjunction therewith, the right to an effective remedy under Article 40, as well as the well-established case-law of the Court on this matter.

61. Therefore, the Court has arrived at the conclusion that the applicant’s right to an effective remedy had been violated due to a lack of statutory guarantee which would eliminate the risk of deportation while he was waiting for the outcome of his case before the administrative court. The Court has found that this violation stemmed from the new situation created by the legislative amendment.

62. For these reasons, it must be held that there has been a violation of the right to an effective remedy protected under Article 40 of the Constitution, in conjunction with Article 17.

c. Application of Article 50 of Code no. 6216

i. General Principles

63. Article 50 §§ 1 and 2 of the Code no. 6216 on the Establishment and Rules of Procedures of the Constitutional Court, dated 30 March 2011, in so far as relevant, 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 redressed. 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 redress the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”

64. According to Article 49 § 6 of Code no. 6216, the examination on the merits determines whether there has been a violation of a fundamental right and, if so, how it can be redressed. Further, as per Article 50 § 1 of the same Code and Article 79 § 2 of the Internal Regulations, where a violation is found, the Court rules on what needs to be done to redress the violation and its consequences. Accordingly, in case of a violation, the Court will not only find that the fundamental right or freedom concerned has been violated but also determine the matter of how to redress the violation, in other words decide on what needs to be done so that the violation and its consequences can be resolved (see Mehmet Doğan [Plenary], no. 2014/8875, 7 June 2018, § 54).

65. If the Court finds a violation of a fundamental right or freedom within the scope of an individual application, the main requirement which needs to be satisfied to consider that the violation and its consequences have been redressed is to ensure restitution to the extent possible, that is to restore the situation to the state it was in prior to the violation. For this to happen, the continuing violation needs to be ceased, the decision or act giving rise to the violation as well as the consequences thereof need to be redressed, where applicable the pecuniary and non-pecuniary damages caused by the violation need to be indemnified, and any other measures deemed appropriate in that scope need to be taken (see Mehmet Doğan, § 55).

66. On the other hand, Article 50 § 1 of Code no. 6216 precludes the Court from rendering decisions or judgments in the nature of an administrative act or action when determining the way to redress the violation and its consequences. Accordingly, in determining the way to redress the violation and its consequences, the Court may not issue an act by substituting itself for the administration, the judicial authorities or the legislative branch. The Court adjudicates the way by which the violation and its consequences would be redressed and remits its judgment to the relevant authorities for the necessary action to be taken (see Şahin Alpay (2) [Plenary], no. 2018/3007, 15 March 2018, § 57).

67. Before ruling on what needs to be done to redress the violation and its consequences, the source of the violation must first be ascertained. In this respect, a violation may stem from administrative acts and actions, judicial acts, or legislative acts. Determining the source of the violation plays a significant role in the determination of the appropriate way of redress (Mehmet Doğan, § 57).

68. If a violation has emerged as a result of the application by the administrative authorities or the inferior courts of a provision of law with such a clarity that does not enable them interpret it in accordance with the Constitution, then the violation stems not from the application of the law but directly from the law itself. In this case, the provision of law giving rise to the violation must either be repealed completely or amended in a way that will not lead to further violations to be able to say that the violation has been redressed with all of its consequences. Moreover, in certain circumstances the repealment of the impugned provision of law may not be sufficient, by itself, in order to redress all the consequences of the violation. In that case, certain measures might need to be taken within the scope of individual application, which could redress the pecuniary and non-pecuniary damages suffered by victims due to the violation.

69. One of the ways that ensure the removal of the violation and its consequences pursuant to Article 50 of Code no. 6216 is the pilot judgment procedure envisaged by Article 75 of the Internal Regulations. In cases where the violation is found to be stemming from a structural problem and that it is leading to more applications, in other words to further violations, or where it is foreseen that this situation might lead to further violations, the mere finding of a violation in respect of the case in question will be far from offering a real protection for the fundamental rights and freedoms.

70. In such a situation, the Court can initiate the pilot judgment procedure ex officio or upon request of the Ministry or the applicant. When the pilot judgment procedure is initiated, the structural problem must be identified and possible solutions thereto must be put forward.

71. The foremost purpose of adopting the pilot judgement procedure is to ensure that the structural problem be corrected and the source of the violation be eliminated through resolution of similar applications by administrative authorities instead of judgments finding violations.

72. In this framework, the Court may prescribe a period of time for the elimination of the structural problem identified by its pilot judgment and the resolution of similar applications, while in the meantime postponing the examination of other applications during this period. However, in such a case, the persons concerned must be informed of the decision on postponement. If the relevant authorities are unable to eliminate the structural problem and resolve the applications falling within that scope by the end of the period of time prescribed by the Court, it will become possible to rule collectively on the applications in the same vein.

ii. Application of Principles to the Present Case

73. The application at hand constitutes the first application lodged with the Court following the amendment made to Article 53 of the Law no. 6458. After this application, there have been 1,545 new applications of the same nature lodged with the Court as of 8 April 2019 and the number of new applications continues to rise every day. As its reasons are explained above, there is no doubt that these applications stem from a structural problem related to a legislative amendment. Indeed for this reason, the Court decided on 12 June 2018 to initiate the pilot judgment procedure by virtue of Article 75 of the Internal Regulations and the present case was designated as a pilot case since it is the very first application lodged on this matter (see § 8).

74. In the present case, the Court has found a violation of the right to an effective remedy safeguarded by Article 40 of the Constitution in conjunction with the right to life and the prohibition of ill-treatment guaranteed by Article 17 of the Constitution. It is understood that the violation stems from the legislative amendment which was introduced to Article 53 of the Law no. 6458 and entered into force on 29 October 2016. In other words, where a deportation order has been issued in respect of a certain individual, the amended provision allows for the removal of the individual from the country without giving them the chance to apply to a court. This provision is applied to all persons who are ordered for deportation with reference to the subparagraphs (b), (d) and (k) of Article 54 § 1 of the Law in question. Accordingly, the Court understands that the violation stems from a provision of law, which is a legislative act.

75. Seeing that the law in question is still in force, it will not be possible to redress the violation via a retrial to be held by administrative courts. Moreover, even if the deportation orders were lifted in the present case as well as other pending cases through finding of a violation by the Court, this would neither prevent further similar applications in the future, nor would it stop the unconstitutional deportation of persons in similar circumstances. Therefore, the Court concludes that the provision of law giving rise to the violation needs to be reviewed so that the violation and its consequences can be eliminated, other applications of similar nature can be resolved in this manner by the administrative authorities, and similar violations which might arise in the future can be prevented.

76. If the legislative branch reinstates the version of Article 53 § 3 of the Law no. 6458 that was in effect until the amendment or enacts a new arrangement capable of automatically ensuring that a person in respect of whom a deportation order has been issued can stay in the country until the end of the prescribed time-limit for filing an action against the order and, where an action has been filed, throughout the course of the proceedings, it will eliminate the structural problem at issue and prevent new applications of a similar nature to be lodged in the future. Thus, a copy of the judgment must be communicated to the legislative branch.

M. Emin KUZ concurred with this opinion with an additional reasoning.

77. That said, although the arrangement to be made by the legislative authority will prevent new applications, it will not be sufficient for the settlement of 1,545 applications which are pending before the Court, the number of which has been increasing by day. On this point, either a transitory provision needs to be introduced in order to resolve the pending applications or the administration needs to lift/revoke/review the previously-issued deportation orders or find a different solution. Thus, a copy of the judgment, along with a list of the pending applications, must be sent to the Ministry of Justice and the Directorate General of Migration Management of the Ministry of Interior for their information and appreciation.

78. In this scope, pursuant to Article 75 § 5 of the Internal Regulations, the Court must postpone the examination of the 1,545 applications, which were lodged between 29 October 2016 and 8 April 2019, as well as any new applications in the same vein coming after that date and it must inform the persons concerned of this postponement.

79. Nevertheless, the postponement of examination of the applications does not extinguish the Court’s power and obligation under Article 49 of Code no. 6216 and Article 73 of the Internal Regulations to take the measures necessary for protection of the fundamental rights and freedoms and to receive applications in this framework.

80. Lastly, sending a copy of the judgment to the legislative branch falls short of fully redressing the applicant’s victimisation due to the violation in the present case. Accordingly, the case file must be remitted to the Bursa 1^st Administrative Court for a retrial to be held with a view to removing the consequences of the violation and ensuring an inquiry and assessment on the alleged risk of ill-treatment the applicant could face in his country.

81. In the present case, there is nothing to prevent the applicants from being deported during the course of the retrials to be held before administrative courts (Y.T. [Interim Decision], no. 2016/22418, 1 November 2016). If the applicant was deported during the process while it was still being inquired whether he would face a real risk of ill-treatment in the destination country, it might lead to the emergence of a serious threat in terms of his physical and moral integrity.

82. It is thus understood that ruling in favour of a retrial in this case will not be sufficient for eliminating the consequences of the violation. The Court must also rule that the applicant not be deported until the completion of the proceedings in the retrial to be held.

83. As regards the non-pecuniary damages sustained by the applicant, which cannot be redressed by a mere finding of a violation, the Court awards 10,000 Turkish liras (TRY) (net) in favour of the applicant as non-pecuniary compensation.

84. For the Court to be able to award pecuniary compensation, there has to be a causal link between the alleged violation and the pecuniary damage allegedly suffered by the applicant. In the absence of any documents submitted by the applicant to that effect, the Court must reject the claims for pecuniary compensation.

85. The court expense consisting of a counsel fee of TRY 2,475 must be reimbursed to the applicant.

VI. JUDGMENT

For these reasons, the Constitutional Court held UNANIMOUSLY on 30 May 2019 that

A. The request for legal aid be GRANTED;

B. The applicant’s request for anonymity in public documents be GRANTED;

C. The alleged violation of the right to an effective remedy in conjunction with the prohibition of ill-treatment be DECLARED ADMISSIBLE;

D. The right to an effective remedy safeguarded by Article 40 of the Constitution was VIOLATED;

E. Seeing that the violation has stemmed from a structural problem, the PILOT JUDGMENT PROCEDURE BE APPLIED;

F. The situation concerning an amendment to Article 53 § 3 of Law no. 6458 for elimination of the structural problem be COMMUNICATED to the legislative branch;

G. The examination on the applications lodged after 29 October 2016 and the applications to be lodged after the delivery of the hereby judgment be POSTPONED FOR 1 YEAR from the publication of the judgment in the Official Gazette;

H. The persons concerned whose applications fall within the scope of the pilot judgment be INFORMED of the situation via announcement of their application numbers on the Court’s website;

I. The list of applications on which the examination has been postponed be SENT to the Directorate General of Laws and the Human Rights Department of the Ministry of Justice and the Directorate General of Migration Management of the Ministry of Interior;

J. A copy of the judgment be REMITTED to the 1^st Chamber of the Bursa Administrative Court (no. E.2016/1456, K.2016/1568) for a retrial to redress the consequences of the violation;

K. The applicant NOT BE DEPORTED until the completion of the retrial;

L. A net amount of TRY 10,000 be PAID to the applicant in respect of non-pecuniary damage, and other compensation claims be REJECTED;

M. The court expense consisting of a counsel fee of TRY 2,475 be REIMBURSED TO THE APPLICANT;

N. The payment be made within four months as from the date when the applicant applies to the Ministry of Treasury and Finance following the notification of the judgment; in case of any default in payment, statutory INTEREST ACCRUE for the period elapsing from the expiry of four-month time-limit to the payment date; and

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

ADDITIONAL REASONING OF JUSTICE M. EMİN KUZ

In the present case concerning the alleged violation of the right to an effective remedy due to the lack of an effective judicial remedy which could be availed of in order to challenge an order for deportation to a country where the applicant might face the risk of ill-treatment, the Court has found a violation of the right to an effective remedy. Concluding that the violation stems from a structural problem, the Court has decided to apply the pilot judgment procedure and to send a communication to the legislative branch to notify them of the situation calling for an amendment to be made to Article 53 § 3 of Law no. 6458 for elimination of the structural problem.

While concurring with the unanimous conclusion, I find it necessary to point out the following:

As explained in the judgment, the original version of Article 53 § 3 of Law no. 6458 used to provide that where a deportation order was issued in respect of an alien, the latter or his/her legal representative or attorney could challenge the deportation order within 15 days before an administrative court and the alien concerned could not be deported, unless he wished otherwise of his own will, during that 15-day time-limit or, if the judicial remedy was availed of within this time, until the end of the proceedings. However, the clause added to the paragraph in question by the Decree-law no. 676 has made it possible to execute deportation orders immediately, without waiting for the 15-day time-limit prescribed for filing an action or for the proceedings to be concluded if they filed an action, in respect of persons who are “leaders, members or supporters of terrorist or interest-seeking criminal organisations”, “a threat to the public order, public safety or public health”, and “deemed to be associated with the terrorist organisations as described by international institutions and organisations”.

It is thus noted that the amendment introduced by the Decree-law no. 676, which was subsequently enacted via Law no. 7070 and became law, redressed the possibility of staying the deportation, unless the Court delivers an interim measure, during the prescribed time-limit for filing an action and, if an action is filed, until the end of the proceedings in respect of persons described in the amended provision of law, even if they claim to be under a risk of a violation of the right to life or prohibition of ill-treatment in their country.

As the Court has already acknowledged, “there is no doubt that acts of terrorism are one of the most serious dangers threatening societies” and “in modern democracies, states are under a positive obligation to protect individuals within their jurisdictions against activities of terrorist organisations” (see Metin Birdal [Plenary], no. 2014/15440, 22 May 2019, §§ 64-65). Thus, criminalising membership to a terrorist organisation has become a part of the policies for an effective fight against terrorism in our country as well as in many of the developed democracies (see Metin Birdal, § 64). Other legal provisions that concern the leaders, members and supporters of terrorist or interest-seeking criminal organisations or those who are deemed to be associated with terrorist organisations also fall within this scope.

It is understood from its general reasoning that the amendment pursued the aim of protecting the fundamental rights and freedoms and the public order as a necessity of these policies against threats posed by terrorist organisations. It accordingly makes a distinction between the aliens to be deported under Article 54 of Law no. 6458 and expedites the deportation procedures in respect of some of those aliens. Though it is understandable that the necessity in question calls for a new legal arrangement, the amendment at issue seems to be resulting in the complete removal of the opportunity under Article 53 § 3 in respect of these persons and it could make it meaningless even if the proceedings filed by persons deemed to fall within this scope eventually resulted in their favour.

To put differently, despite existence of a legitimate aim in introducing a different stipulation in respect of the aliens described in subparagraphs (b), (d) and (k) of Article 54 § 1 of Law no. 6458, it is understood that this amendment -giving rise to the violation- redress the right to an effective remedy of the persons concerned.

In view of the fact that Article 53 § 3 of Law no. 6458 prescribes the time-limit for filing an action and the time-limit for concluding the proceedings as 15 days each and that the rulings of the administrative courts in this regard are indicated to be final, the disproportionate removal of the right to an effective remedy can be prevented by means of introducing an arrangement which stays the execution of the deportation orders in respect of the persons in the aforementioned situation during the prescribed time-limit for filing an action and, where an application is made to the administrative court, for a period of time which will allow for an assessment to be held on the applicants’ claims.

For these reasons, it should be clarified that the call made to the legislative branch for amending Article 53 § 3 of Law no. 6458 in order to eliminate the structural problem at issue, namely the call for reverting the provision to the version that was in force before the amendment by the Decree-law no. 676, in other words “reinstating the version ... that was in effect until the amendment or enacting a new arrangement capable of automatically ensuring that a person in respect of whom a deportation order has been issued can stay in the country until the end of the prescribed time-limit for filing an action against the order and, where an action has been filed, throughout the course of the proceedings”, falls completely within the margin of appreciation of the legislative branch. This should not be construed as a call for an amendment that has to be made absolutely in this manner. It would also be possible to introduce other provisions capable of protecting the right to an effective remedy of the persons concerned when introducing a different arrangement in respect of the persons concerned with the amendment to be made.