Individual Application

The Facts

The applicant, a citizen of the People’s Republic of China (“China”) of Uighur origin, stated that he fled from China in 1996 for having been subject to torture for 9 years while being imprisoned and ultimately arrived in Turkey in 2001.

The applicant receiving a refugee certificate from the United Nations Refugee Agency (“UNHCR”) in 2007 was granted international protection. He maintained that he was classified as a terrorist in China as he was struggling to disclose the policies of pressure applied by China to the Uighur Turks, and the Chinese authorities exerted influence to ensure his extradition.

The incumbent chief public prosecutor’s office issued an indictment against the applicant, seeking for his extradition to China. However, the assize court dismissed the extradition request. The dismissal decision appealed by the public prosecutor was quashed by the Court of Cassation. The applicant’s case, which was referred to the assize court after the prosecutor’s office had issued a decision of non-jurisdiction upon the quashing judgment, is still pending.

Having been released, the applicant was taken to the Foreigners’ Removal Centre (“Removal Centre”).  On 19 October 2016 the Governor’s Office of the province -where the Removal Centre is located- issued a deportation order and an administrative detention order against him. The applicant’s challenge against the administrative detention order was rejected by the magistrate judge, while the action brought by him for annulment of the deportation order was dismissed by the administrative court.

The applicant filed an application with the Court for an interim measure because of the risk of his being extradited to China. Accordingly, the Court indicated an interim measure in 2016 and allowed for his extradition neither to China nor to Kazakhstan.

The applicant lodged an application with the European Court of Human Rights (“ECHR”), alleging that Turkey would deport him to a third country other than China and Kazakhstan. Thereafter, the ECHR indicated an interim measure to ensure suspension of the applicant’s deportation from Turkey.

The Applicant’s Allegations

The applicant maintained that his right to personal liberty and security had been violated on the ground that administrative detention of foreigners at the Removal Centre for over 12 months was unlawful.

The Court’s Assessment

Placing in administrative detention is an exceptional power introduced by Article 19 of the Constitution. It is accordingly possible to arrest or detain a foreigner pending his deportation or extradition. However, such deprivation of liberty cannot be considered legitimate unless the deportation or extradition process is conducted with due diligence.

The Law no. 6458 clearly points to the procedure whereby the extradition process should be conducted. In this respect, the Court examined whether the procedure prescribed in the said Law had been conducted with due diligence.

In the administrative detention order whereby the applicant was deprived of his liberty, the legal grounds relied on -such as maintaining public order and public safety- were reiterated in an abstract fashion and without providing any justification. It has been observed that the process of the extradition of criminals, which was conducted in respect of the applicant, had no bearing, either direct or indirect, on the administrative detention order which did not also contain any such finding.

It further appears that there is no act taken or finding made by judicial and administrative authorities that the applicant residing in Turkey from 2001 to 2016, the date when he was removed from the country, had involved in any incident causing disturbance of public order and safety. The administrative detention order lacked any explanation as to what particular circumstance of the applicant’s case was considered as a threat to public safety and public order. Therefore, in its examination, the Court could not find an issue to discuss whether the applicant’s administrative detention was lawful.

In spite of the necessity of making a regular review of administrative detention orders on monthly basis, such review in the applicant’s case was performed 9 days after the expiry of the prescribed period, which was also incompatible with the lawfulness requirement.

On the other hand, the Directorate General of Migration Management submitted certain documents to the effect that the applicant continued staying in the Removal Centre of his own will following the twelfth month when the discontinuation of his administrative detention was ordered. The applicant abstained from signing the report that was issued by the Removal Centre, which led to the suspicion and uncertainties as to the veracity of its content.  His application both to the Court and the ECHR for seeking his release indicates that he did no longer consent to his placement in the Removal Centre.

Besides, it is one of the positive obligations incumbent on the State to prevent an individual from giving consent to deprivation of his liberty. The passive attitude adopted by the State and the public authorities as a part of the State in taking an action to satisfy a legal requirement would not be compatible with this positive obligation.

Regard being had to the applicant’s applications before the Court and the ECHR, it cannot be accepted that the applicant was placed in administrative detention of his own will. Any assumption to the contrary would be in breach of the legal norms setting the extent to which liberty may be exercised. Given the constitutional provisions concerned, no legal value could be attributed to the applicant’s voluntary deprivation of his liberty.

Consequently, the Court has found a violation of the right to personal liberty and security safeguarded by Article 19 of the Constitution.