Events
The applicant, who is a foreign national, was ordered to be deported on 19/8/2019 and 4/6/2020 due to his involvement in various criminal offences. The applicant filed a lawsuit before the administrative court for the cancellation of the deportation order dated 4/6/2020. The administrative court found that the deportation decision dated 4/6/2020 was in fact a decision to correct the deportation decision dated 19/8/2019 and decided to cancel the action on the grounds that the information and documents regarding the determination of the safe third country to which the deported applicant could be sent were not submitted to the case file, and that if the applicant was sent to any country, he would face the risk of being sent to countries where he would be subjected to the death penalty, torture, inhuman or degrading punishment or treatment, or where his life or freedom would be under threat.
Upon the applicant’s involvement in a threat and injury incident on 7/4/2021, a new registration correction decision was taken on the grounds that he posed a threat to public order or public security or public health. The applicant filed a lawsuit against the deportation order dated 19/8/2019 before the administrative court. The administrative court the applicant did not make any explanation as to what kind of risk he was personally at in his country, that he continued to live in Turkey without applying to the official authorities despite being under the risk of deportation at any time, that there was doubt about the credibility of his claims that he might be ill-treated in his country, the Court dismissed the case on the grounds that the first time he had raised the risk of ill-treatment in his home country was in the course of the deportation proceedings and that, as a result, he had not shown serious indications that he would be subjected to torture, inhuman or degrading punishment or treatment in the country of deportation.
Allegations
The applicant claimed that his right to life and the prohibition of ill-treatment had been violated by the decision to deport him to a third country, which had not yet been identified, on the grounds that he had been sentenced to death in his country and that his claims concerning the possible consequences of deportation had not been subjected to a rigorous examination in the case brought against this decision.
The Court’s Assessment
In the concrete case, it is possible to consider that the applicant could not be deported to his country without his consent since the decision was taken to deport him to a third country to which he could go. However, according to the Constitutional Court, the aforementioned decision does not prevent the applicant from being indirectly deported to his country. As a matter of fact, the Law No. 6458 on Foreigners and International Protection and the Regulation on the Implementation of the Law on Foreigners and International Protection stipulate how the deportation to a third country will be determined and whether this country will be notified to the applicant, If the applicant has a claim that the identified country is not a safe country for him/her and/or that the third country in question will deport or extradite him/her to his/her country, there is no norm as to whether he/she can file a lawsuit based on this claim and, if he/she can file a lawsuit, whether this lawsuit will stop the deportation proceedings.
However, the aforementioned issue does not arise from the existence of a gap in the legal regulation. Because it is not possible to interpret Article 52 of the Law No. 6458 as “Foreigners may be deported to their country of origin or transit country or to a third country with a deportation decision.” as a deportation decision can be taken without determining the country of deportation of the foreigner. Indeed, Article 4 of Law No. 6458 on the prohibition of refoulement and Article 55 on those who will not be subject to a deportation order do not mention the country of origin. Without mentioning the country of origin, Article 4 of Law No. 6458 states that no one shall be sent to a place where he/she will be subjected to torture, inhuman or degrading punishment or treatment, or where his/her life or freedom will be threatened because of his/her race, religion, nationality, membership of a particular social group or political opinion, and that a deportation decision shall not be taken for a foreigner who has serious indications that he/she will be subjected to death penalty, torture, inhuman or degrading punishment or treatment in the country of deportation. It is clear that if the deportation order does not specify where the foreigner will be deported to, the judicial authorities cannot assess whether the foreigner will be subjected to the death penalty, torture, inhuman or degrading punishment or treatment in the country of deportation or whether the foreigner will be indirectly deported to the country of origin.
In short, the administrative court dismissed the case on the grounds that the applicant had failed to explain what kind of personal risk he was at in his home country, that there was doubt as to the credibility of his allegations that he might be subjected to ill-treatment in his home country and that the applicant had not shown serious indications that he would be subjected to torture, inhuman or degrading punishment or treatment in the country of deportation. However, the applicant submitted to the Administrative Court a court judgement, which he claimed was a death sentence, and a Turkish translation of that judgement. Considering the content of these documents, the administrative court should investigate whether the decision, a photocopy of which was submitted to it and which was allegedly related to the death penalty, actually exists and, if so, whether it has been finalised. Article 17 of the Constitution prohibits the direct or indirect deportation of a foreigner to a country where the foreigner would face a real risk of being subjected to the death penalty, which is a punishment incompatible with human dignity and is not listed in the last paragraph of Article 17 of the Constitution among the situations where the interference with the right to life is lawful, or where there are important reasons to believe that the foreigner would face a real risk of the application of an existing death penalty.
In the decision of the administrative court, it was observed that there was no assessment that the deportation order did not specify where the applicant would be deported to. However, in the decision on the cancellation of the registration correction decision dated 4/6/2020, a copy of which was submitted by the applicant to the administrative court, which was issued by the administrative court itself and which contains evaluations similar to the above determination of the Constitutional Court; it was stated that no information and documents regarding the determination of the safe third country to which the applicant could be sent were submitted to the case file, that the applicant could be deported to any country based on the decision subject to the case, and that in this case, the applicant would face the risk of being sent to countries where he would be subjected to the death penalty, torture, inhuman or degrading punishment or treatment, where his life or material and/or moral existence would be under threat. For this reason, the administrative court should have made an assessment of the applicant’s claims, taking into account the aforementioned cancellation decision.
Under the current circumstances, it cannot be said that the applicant was provided with effective procedural guarantees protecting him against indirect deportation to his country and that the administrative court meticulously examined the applicant’s allegations of violation.
For the reasons explained above, the Constitutional Court concluded that the right to life and the prohibition of ill-treatment were violated.
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