Individual Application

The Facts

The applicant, having entered Turkey legally, married to a Turkish woman and had four children.

In the course of the routine control carried out by the law enforcement officers, it was understood that an exclusion order had been issued in respect of the applicant. The Provincial Immigration Authority ordered on 30 September 2016 that the applicant would be placed in administrative detention for deportation. The Law no. 6458 on Foreigners and International Protection that was in force at the material time provided that in case of judicial appeal, the deportation order shall not be executed until the finalization of the appeal proceedings.

Meanwhile, amendments were made to Law no. 6458 with the Decree Law no. 676 that was published in the Official Gazette dated 29 October 2016 and additional provisions were included in the Law. Accordingly, it is stipulated –unlike the previous version of the provision– that the deportation process shall not be suspended in respect of the foreigners ordered to be deported, during the period prescribed for appeal or during the appeal stage.

In accordance with the said amendment, the applicant’s deportation was ordered. The applicant brought an action for annulment also requesting the stay of execution before the administrative court, stating that he was a Turkish national and came to Turkey for having been subjected to torture. The applicant’s request was rejected and the case was dismissed as being time barred, without any assessment as regards the alleged ill-treatment.

The applicant claimed that the deportation order against him was enforceable at any time and that therefore the administrative court was no longer an effective remedy in practice. Thus, the applicant lodged an individual application with a request for interim measure on the same day when he brought an action before the administrative court.

The Applicant’s Allegations

The applicant maintained that his right to an effective remedy had been violated for lack of an effective legal remedy to challenge the decision ordering his deportation to a country where he would face the risk of ill-treatment.

The Court’s Assessment

Article 40 of the Constitution safeguards the right to request prompt access to the competent authorities (right to an effective remedy) for everyone whose constitutional rights have been violated.

In the present case, the applicant raised his allegations before the administrative judicial authorities to the effect that he would face the risk of ill-treatment in his country and he filed an individual application at the same time. The Constitutional Court has considered that the applicant’s allegations are of serious nature and therefore accepted his request for interim measure and suspended the deportation process. However, following a procedural examination, the administrative court dismissed the case as being time barred. The applicant’s allegations on the merits were not examined by the administrative court.

The applicant maintained that he could not wait the outcome of the proceedings before the administrative court as he was under a constant risk of deportation at any stage of the proceedings. The applicant’s allegations that the proceedings pending before the administrative court had ceased to be an effective remedy as it had had no prospect of success were not unfounded. The applicant was not provided with an opportunity to pursue his case pending before the administrative court without facing any risk of deportation. This situation clearly pointed out the fact that the guarantees would not be able to be met in the proceedings before the administrative court.

However, the impugned situation did not stem from the practice of the administrative court or its misinterpretation of the legislation, but from the amendment made to Law no. 6458. It has been understood that the said amendment has not been compatible with the right to life, prohibition of ill-treatment and right to an effective remedy, which are safeguarded by the Constitution, as well as the relevant established case-law of the Constitutional Court.

Accordingly, it has been concluded that the applicant’s right to an effective remedy was violated since he was not provided with a legal guarantee which would eliminate the risk of deportation while awaiting the outcome of the proceedings before the administrative court and that the violation stemmed from the new situation arising from the legislative amendment in question.

Consequently, the Constitutional Court has found a violation of the right to an effective remedy safeguarded by Article 40 of the Constitution in conjunction with Article 17 thereof. In addition, it decided on the application of the pilot judgment procedure and held that the applicant would not be deported until the conclusion of the retrial.

In addition, it has been the first application lodged with the Constitutional Court following the amendment made to Law no. 6458. After this application, 1,545 applications of the same nature have been filed by 8 April 2019.

As these applications stemmed from a structural problem related to the legislative amendment, it was decided on 12 June 2018 that the pilot judgment procedure would be initiated in accordance with the Internal Regulations of the Constitutional Court. Hence, the present case has been determined as a pilot case.

The foremost objective in the adoption of the pilot judgment procedure is to ensure that the similar applications are resolved by the administrative authorities instead of finding a violation and therefore the source of the violation is eliminated, thus fixing the main structural problem.

In case of a failure on the part of the relevant authorities to fix the structural problem and to settle the applications in this scope within the period set by the Constitutional Court, it will be possible to adjudicate the similar applications collectively.

During the period when the relevant provision has been in force, it will not be possible to remedy the violation by way of a retrial by the administrative courts. Accordingly, while it is at the discretion of the legislative authority to ensure the redress of the violation and its consequences as well as the prevention of similar violations, it has been understood that the legal provision leading to the violation should be reviewed.

Arrangement to be made by the legislative authority will eliminate the structural problem in question, thereby preventing new applications of similar nature. It has therefore been decided that a copy of the judgment be sent to the legislative authority.

Although the arrangement to be made by the legislative authority will prevent new applications, it will not be sufficient for the settlement of 1,545 applications which are pending before the Constitutional Court and the number of which has been increasing day by day. Therefore, solutions must be found in respect of the pending applications. In this regard, it has been decided that the list of the pending applications be sent to the Directorate General for Laws and the Human Rights Department of the Ministry of Justice as well as to the Directorate General of Migration Management of the Ministry of Interior for their resolution by the administrative authorities.