Events
The applicant is an Iraqi citizen who entered Turkey legally with his wife and three children and started to live in Turkey after obtaining a residence permit. The chief public prosecutor’s office opened an investigation against some persons, including the applicant, for membership of an armed terrorist organisation, and the governorate issued deportation and administrative detention orders against the applicant. Furthermore, the applicant’s residence permit was cancelled due to the existence of a restriction and deportation order. Thereupon, the applicant filed a lawsuit before the administrative court for the cancellation of the deportation decision. By an interim decision, the administrative court asked the respondent administration for the basis of the restriction record and the Chief Public Prosecutor’s Office for the status of the investigation. The Directorate General of Security stated that the applicant had been subjected to a restraint record, while the Chief Public Prosecutor’s Office stated that the investigation was ongoing. The administrative court definitively rejected the applicant’s lawsuit, while the chief public prosecutor’s office decided that there was no ground for prosecution within the scope of the investigation.
Allegations
The applicant claimed that the prohibition of ill-treatment had been violated due to the decision to deport him to a country where he was at risk of being subjected to ill-treatment, and that the right to effective remedy had been violated in connection with the right to freedom of establishment, since the deportation was contrary to procedural guarantees.
The Court’s Assessment
A. Regarding the Allegation of Violation of the Prohibition of Ill-Treatment
For the rights protected by the prohibition of ill-treatment to be truly guaranteed, it is not enough for the State not to commit ill-treatment. The State must also protect individuals against acts of its officials and third parties that may constitute ill-treatment. If it is alleged that the prohibition of ill-treatment will be violated in the country to which the foreigner will be sent as a result of the deportation procedure, administrative and judicial authorities should investigate in detail whether there is a real risk of violation in the country in question. However, the State does not have an obligation to investigate in every deportation procedure. In order for this obligation to arise, a defensible claim must first be put forward by the applicant.
In the present case, the applicant based the risk he would face in case of repatriation on two grounds: One was that his father-in-law was a general under the former leader of Iraq and the other was that he belonged to a different sect. The applicant’s abstract allegation – not based on any document or report – that he was at risk because of his father-in-law was not serious enough to warrant an investigation. On the other hand, the applicant did not mention in his written statement submitted pursuant to the interim decision of the administrative court or in his interview with the migration expert that he had problems in his country because of his sect. When these two situations are analysed and evaluated, it is understood that the applicant’s allegations that he will be subjected to ill-treatment if he is returned to his country are not of a quality and sufficiency worthy of investigation.
For the reasons explained above, the Constitutional Court ruled that the allegation of violation of the prohibition of ill-treatment was inadmissible as it was manifestly ill-founded.
B. Regarding the allegation of violation of the right to effective remedy in connection with the right to settlement within the scope of procedural safeguards in deportation proceedings
It is not an unwarranted and unfounded assessment for the public authorities to establish a link between the applicant and a terrorist organisation upon learning that the applicant’s name appeared on a list of members of a terrorist organisation. Therefore, since the assessments made by the administrative and judicial authorities regarding the deportation procedure in the light of the data they had access to were foreseeable, the deportation procedure had a legal basis.
On the other hand, the reason for the imposition of the restriction, which was the basis for the applicant’s deportation, was included in the case file upon the letter of the Chief Public Prosecutor’s Office. Although it is not reflected in the file that the applicant was aware of the aforementioned letter, the applicant did not request from the administrative court to learn the data on the restriction record that constituted the grounds for deportation, did not put forward counterclaims that would render them worthless, or did not present any evidence in his favour that should be evaluated. Therefore, the applicant’s allegation that only the data of the public authorities were relied upon is unfounded. The applicant’s arguments before the administrative court were limited to the fact that he had not committed any illegal act and that there was no evidence against him in the criminal investigation.
Considering that the deportation procedure was carried out on the grounds that the applicant posed a threat to public security, the fact that no investigation was carried out regarding the membership of a terrorist organisation or the decision of non-prosecution in the criminal investigation opened in this context has no importance for the annulment case. The administrative court, which decided that the assessment of the public authorities that the applicant posed a threat to public security was in accordance with the law, did not violate the guarantee of re-examination.
For the reasons explained above, the Constitutional Court ruled that the allegation of violation of the right to effective remedy in connection with the freedom of settlement was inadmissible due to manifestly lack of grounds.
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