Press Release No: Individual Application 12/17
07.06.2017

PRESS RELEASE ON THE JUDGMENT FINDING A VIOLATION OF THE PROHIBITION OF ILL-TREATMENT DUE TO IMPOSITION OF A DEPORTATION ORDER ON A FOREIGNER WITHOUT EXAMINING HIS ALLEGATIONS THAT HE WOULD BE EXPOSED TO ILL-TREATMENT IN HIS COUNTRY

On 10 May 2017, the Second Section of the Constitutional Court held, with regard to the individual application lodged by Azizjon Hikmatov (App. No: 2015/18582), that there had been a breach of the prohibition of ill-treatment guaranteed in Article 17 of the Constitution.

The Facts

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 decision of the Batman Administrative Court (the Administrative Court) dated 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.

The Applicant’s Allegations

The applicant maintained that he had fled his country, namely, Uzbekistan and taken refuge in Turkey in 2009 as he was under the threat of being oppressed for displaying opposing conduct; 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.

The Court’s Assessment

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

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 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.

At the subsequent stage, it will be examined whether the applicant’s defendable allegation 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.

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.

Besides, 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, an investigation was not conducted into the applicant’s allegations as to whether they are true, which are discussed in the ECtHR’s judgments and in the reports of the non-governmental organizations carrying out researches on the field of human rights. Nor did the Administrative Court’s decision include an assessment as to why these allegations were not relied on.

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

Consequently, the Constitutional Court held that the prohibition of ill-treatment guaranteed in Article 17 of the Constitution had been breached.

 

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

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