Individual Application

The Facts

The applicant, who is a citizen of Iraq, entered Türkiye legally with his wife and three children and began to live in Türkiye after obtaining a residence permit. The chief public prosecutor’s office launched an investigation against a number of individuals including the applicant for membership of an armed terrorist organization. Thereupon, the governor’s office ordered the applicant’s deportation as well as his administrative detention. Additionally, the applicant’s residence permit was revoked due to the restriction (tahdit kaydı) and deportation orders issued in respect of the applicant. Subsequently, the applicant brought an action before the administrative court, seeking the annulment of the deportation order. In its interim decision, the administrative court requested from the defendant administration information about the grounds underlying the restriction order imposed on the applicant and requested from the chief public prosecutor’s office information about the outcome of the investigation. The General Directorate of Security indicated that a restriction order had been issued against the applicant, while the chief public prosecutor’s office stated that the investigation was still ongoing. The administrative court dismissed the action brought by the applicant with no right of appeal, and the chief public prosecutor’s office issued a decision of non-prosecution.

The Applicant’s Allegations

The applicant claimed that the prohibition of ill-treatment had been violated due to the deportation order issued against him, and that his right to an effective remedy, in conjunction with his freedom of residence, had been violated on the grounds that the deportation order fell contrary to the procedural safeguards.

The Court’s Assessment

A. Alleged Violation of the Prohibition of Ill-Treatment

The State’s abstention from ill-treatment would not be sufficient to indicate that the rights safeguarded under the prohibition of ill-treatment are protected in practice. It is also incumbent on the State to protect individuals from ill-treatment that might stem from the acts of State officials and third parties. In case of an allegation that the foreigner will be subject to ill-treatment in the country he will be deported to, the administrative and judicial authorities must scrutinize whether a real risk of violation exists in relation to the said country. Nevertheless, the State does not have a duty to scrutinize each deportation procedure. In order for such an obligation to emerge, there must be an arguable claim raised by the applicant.

The applicant relied on two grounds to substantiate the risk that he might face in the deportation country: First, the father of the applicant’s wife was a military general during the term of former leader of Iraq. Second, the applicant belonged to a different sect. The applicant’s abstract allegation that he faced the risk of being subjected to ill-treatment due to his father-in-law, which was not substantiated with any document or a report, did not attain the minimum level of seriousness for an examination. In addition, the applicant did not put forward that he had experienced difficulties in his country due to his sect in his written statement submitted pursuant to the interim decision of the administrative court nor in the interview conducted with the migration officer. As a result of the examination and the assessment of these two grounds, it has been understood that the applicant’s allegations that he would have been subject to ill-treatment in case of his deportation to his country were neither severe nor sufficient for an examination.

In light of the explanations above, the Constitutional Court has declared the alleged violation of the prohibition of ill-treatment inadmissible for being manifestly ill-founded.

B. Alleged Violation of the Right to an Effective Remedy in conjunction with the Freedom of Residence within the scope of the Procedural Safeguards in relation to Deportation Procedures

Following the finding of the applicant’s name in the list including the names of the terrorist organization members, it was not inappropriate or unsubstantiated for public authorities to establish a link between the applicant and the terrorist organization. Therefore, the act of deportation had a legal basis since the assessments as to the deportation procedure were foreseeable in light of the information obtained by administrative and judicial authorities.

Additionally, the grounds for the restriction order issued against the applicant entailing his deportation were included in the case file in accordance with the letter of the chief public prosecutor’s office. Although the case file did not indicate that the applicant had been aware of the said letter, the applicant did not request any information from the administrative court about the restriction order that had been taken as the basis for the deportation order. He also failed to rebut such information and did not adduce evidence to prove the contrary. Therefore, the applicant’s allegation that only data submitted by the public authorities had been considered was unsubstantiated. The allegations put forward by the applicant before the administrative court were confined to the fact that he had not committed an illegal act and there had been no evidence put forward against him during the criminal investigation process.

Given that the deportation order had been issued due to the threat to public security; the lack of investigation into the allegation of membership to a terrorist organization or issuing of the decision of non-prosecution at the end of the criminal investigation made no sense regarding the action for annulment. The administrative court, which found lawful the assessment of the public authorities specifying that the applicant had posed a threat to public security, did not act in breach of the safeguard enabling the request for a review of the situation.

Consequently, the Court has declared inadmissible the alleged violation of the right to an effective remedy, in conjunction with freedom of residence, for being manifestly ill-founded.