Prohibition of Ill-Treatment Due to Violation of the Right to Life and its Effective Implementation and Non-Voluntary Repatriation
Events
As a result of the fight in which the applicant, who is a citizen of the Syrian Arab Republic and is in our country with a temporary protection status, was involved, it was decided to deport him to a safe third country or ensure his exit. To the country of origin if it is voluntary. In addition, it was decided that the applicant should be placed under administrative supervision for six months on the grounds that he threatened public order, and a deportation decision was taken against him. The applicant’s representative requested the annulment of the administrative supervision decision and filed a lawsuit at the administrative court for the annulment of the deportation decision. According to the voluntary return request form, the applicant left the border gate and went to the country of origin without waiting for the outcome of the case.
In the case filed at the administrative court for the annulment of the deportation decision on behalf of the applicant, after the applicant’s departure from Turkey, the decision to stop the execution was first made, and then the final annulment decision was made.
The Allegations
Applicant claimed that the right to life, the prohibition of ill-treatment and, depending on these rights, the right to effective application had been violated as a result of his deportation after being made to sign the voluntary repatriation request form without his consent. .
The Court’s Assessment
A. The Claim of Violation of the Right to Life and Prohibition of Ill-Treatment Hk.
The applicant was returned to his country of origin on the basis of the voluntary return request form until the conclusion of the trial on the cancellation of the deportation decision.
In cases where the risk in the country of return is assessed to have gone beyond mere probability and turned into a real risk, the State’s positive obligation to protect foreigners against risks to their lives or material and spiritual property continues. The concrete case, in the decision on the deportation of the applicant, it was accepted that there was a risk of deportation to the country of origin, that is, this risk was evaluated at a real risk level beyond the possibility.
In this case, it is necessary to examine whether the applicant was sufficiently informed prior to the voluntary return claim, that is, whether this return was conscious. It was stated that the voluntary return form prepared in printed form did not contain any details about the applicant’s personal situation in Syria beyond the general statements about the risks, nor did it explain the reasons for the possible risk justifying the applicant’s temporary protection, and it was accepted. in the deportation decision – it was no longer valid.
There must be very strong evidence that the applicant voluntarily, willingly and consciously returned only one day after meeting with his lawyer and apparently on the same day as the cancellation of the deportation order issued at his request. However, the applicant’s lawyer was not informed that the voluntary return form had been signed, nor was a representative of an international or national non-governmental organization present. As a matter of fact, the form does not have the signature of the applicant’s lawyer or a representative of a non-governmental organization. However, the Ministry of Interior circular states that the form must be signed by the foreigner who wants to return and by a representative of an international or national non-governmental organization.
In the light of these evaluations, it is understood that the applicant, who was also accepted in the deportation decision, was not sufficiently informed about the actual risk, and it cannot be said that he returned to his country of origin consciously and voluntarily.
The Constitutional Court ruled that the right to life and the prohibition of ill-treatment were violated for the reasons described above.
B. The Claim that the Right to Life and the Right to Effective Application Related to the Prohibition of Ill-Treatment have been Violated Hk.
As a rule, the applicant, who could not be deported until the trial was concluded, was immediately removed from the country on the day of the decision, as he filed an annulment lawsuit against the deportation decision issued against him. Voluntary return form was signed without waiting for the conclusion of the trial on the grounds of the foreigner’s consent; it was seen that the decisions to stop the execution and cancel in favor of the applicant did not have an effective and actual result, and the effectiveness of the cancellation case was damaged. Applicant did not have access to legal remedies that would allow him to appeal against the decision to send him back, which had the effect of suspension.
The applicant’s lawyer was not informed at the time of signing the form, and a circular provision was introduced that the form must be signed by a representative of an international or national non-governmental organization in order to prevent public authorities from abusing the voluntary return procedure. it was not complied with; in other words, it could not be convincingly established that the applicant had clearly, in other words, consciously and consciously waived his right to appeal.
For the reasons explained, the Constitutional Court decided that the right to life and the right to effective application for the prohibition of ill-treatment had been violated.
You can reach our other article samples and petition samples by clicking here.