International Conference on Migration and Human Rights in the Light of the Judgments of the European Court of Human Rights and the Constitutional Court

"Migration and Human Rights" 

Opening Remarks

İstanbul
11-12 October 2024

Distinguished Participants,

Ladies and Gentlemen,

I would like extend you all my most sincere and respectful greetings.

It is great pleasure to be with you in İstanbul, one of the most fascinating cities of the world.

We have gathered on the occasion of the “International Conference on Migration and Human Rights in the Light of the Judgments of the European Court of Human Rights and the Constitutional Court” which has been organised jointly by the Constitutional Court and the Directorate of Migration Management.

The necessity of addressing migration issues from a multifaceted perspective has paved the way for the organisation of this important event.

This cooperation between the Constitutional Court and the Directorate of Migration Management holds a critical significance in the formulation and implementation of migration policies in accordance with the rule of law and human rights. In addition, migration, which has emerged as a pressing security concern in recent years, stands out as a far-reaching phenomenon influencing the administrative, economic, and social structures of states.

As one of the most urgent global challenges of our time, migration profoundly affects the lives of every nation. Wars, internal conflicts, severe economic conditions, occupations, and political turmoil force people to suddenly abandon their homes, pushing them towards international borders in masses. In recent years, there has been a substantial increase in population movements and migration waves in Asia, Africa, and Europe, with new migration flows occurring daily.

In this sense, significant responsibilities fall upon states and international organisations. Their collaborative efforts in this regard are vital to halt the root causes of migration, such as war, massacres, and ill-treatment, and to raise the level of welfare in underdeveloped societies.

Distinguished participants,

In the absence of the right to life, the most fundamental of all rights, it is beside the point to discuss any other rights. Unfortunately, we continue to witness widespread violations of the right to life, acts in breach of the prohibition of ill-treatment, and practices that strip individuals of their dignity in various parts of the world.

In particular, grave human rights violations in Palestine and the dire situation in Gaza, which has been turned into an open-air prison, compel us to question certain universal values.

Today, Palestine is facing grave human rights violations. Gaza endures a systematic blockade in complete disregard of international law. Tens of thousands of innocent people, including babies, children and women, are being punished, killed, and starved to death with a disproportionate violence that no objective conscience can justify. They are forced to survive under conditions far worse than any acceptable standard.

International humanitarian law, along with the Universal Declaration of Human Rights, the Charter of the United Nations, and the Geneva Conventions, are disregarded.

Harsh realities of oppression and violence unfolding in Palestine and Gaza as well as in other regions of the world, coupled with the economic hardships endured by millions, have compelled millions of people to flee their homes. Inadequate international response to this violence and the insufficiency of humanitarian aid have brought to the forefront the urgent need to discuss a new concept, the “right to migrate”.

Undoubtedly, this is an area where striking a balance between the sovereign rights of states and fundamental human rights is rather challenging. As a matter of fact, sudden and uncontrolled population movements trigger multifaceted legal, social, economic, cultural and political challenges in the source, transit and destination countries of migration.

However, the European Court of Human Rights (“the ECHR”) and the Turkish Constitutional Court have developed significant advancements in their case-law concerning the protection of the rights of migrants, and they have contributed to strengthening the rule of law by addressing the migration phenomenon from a human rights perspective, through their judgments.

The safeguarding of the right to an effective remedy against violations of migrants’ fundamental rights and freedoms has emerged as one of the key concerns for both the ECHR and the Turkish Constitutional Court. In particular, deportation orders as well as decisions on administrative detention and protection of migrant children hold a significant place in our legal system.

As the Constitutional Court, we remain committed to advancing our case-law regarding the protection of fundamental rights and freedoms of migrants in line with national and international standards.

We emphasize the imperative to ensure and protect the fundamental rights and freedoms of migrants, especially the right to life, and to prevent discrimination based on ethnicity, religion, or colour, as well as to eliminate all forms of hate speech.

The Court issued an interlocutory injunction for the first time in 2013 in a case regarding the deportation of a foreigner relying on the severity of the alleged risk to his life and corporeal and spiritual existence.

The Court, interpreting Articles 5, 16 and 17 of the Constitution in conjunction with international law, in particular the relevant provisions of the Geneva Convention to which Türkiye is a party, has recognised that ensuring the protection of foreigners, who may be subjected to ill-treatment in the receiving country (under the state’s sovereignty), from risks to their corporeal and spiritual existence falls within the state’s positive obligations. Within the scope of these positive obligations, it has also been emphasised that in order to provide an individual to be deported with real protection against the risks she/he may encounter in his country of origin, she/he must be granted an effective opportunity to challenge the impugned deportation order. Otherwise, the individual concerned will not be afforded genuine protection. In other words, a foreigner against whom a deportation order has been issued must also be afforded procedural safeguards enabling her/him to “have her/his claims duly examined” and “have the deportation order subjected to a fair judicial review”.

According the Court, deportation of a foreigner to a country where she/he may face the risk of being sentenced to death penalty as a result of the judicial proceedings against her/him or may be subjected to an act or punishment prohibited under Article 17 § 3 of the Constitution will be in breach of the right to life and the prohibition of ill-treatment. For this reason, where there is an arguable claim (which may be investigated, examined or discussed, or raises a reasonable suspicion) –with a certain level of seriousness and supported by relevant information and documents–   that deportation would allegedly result in violations of the right to life and the prohibition of ill-treatment given the situation in the receiving country, judicial authorities should conduct a thorough examination to determine whether there is a real risk of violation in the said country (see A.A. and A.A. [Plenary], no. 2015/3941, 1 March 2017, §§ 54-72). In addition, the lack of a legal safeguard available to a foreigner, capable of eliminating the risk of deportation pending the outcome of the proceedings she/he had brought before the administrative court seeking the revocation of the deportation order, renders ineffective the right to an effective remedy (Y.T. [Plenary], no. 2016/22418, 30 May 2019, § 61).

In its judgment in the case of A.A. and A.A. (2015), the Court concluded that the state had a positive obligation to protect the corporeal and spiritual existence of foreigners who face a risk of being killed and subjected to ill-treatment in their country of origin.

In the aforementioned judgment, the Court also emphasised that, as part of the said positive obligations, an individual whose deportation has been ordered must be provided with an effective remedy to challenge the deportation order to ensure a genuine protection against the risks she/he may face in her/his country of origin.

The Court’s first judgment issued under the pilot judgment procedure also pertained to this issue. In its judgment of Y.T. rendered in 2019, the Court found a violation of the right to an effective remedy due to the lack of an effective legal remedy in place to challenge the deportation order. Since the violation stemmed from a structural problem, the Court invoked the pilot judgment procedure. Following the relevant judgment, the legislative body enacted legislative amendments in a relatively short timeframe, thus establishing an effective remedy.

Today, we aim to examine the relationship between migration and human rights from a judicial perspective and explore solutions to the challenges faced by migrants. I would like to express my sincere belief that the discussions to be made in the light of the case-law of the ECHR and the Constitutional Court will significantly contribute to carving out migration policies in a more just and human rights-oriented manner.

Distinguished participants,

Benjamin Zephaniah, a British Jamaican poet, addresses us as follows in his poem “We Refugees”:

“We can all be refugees
Nobody is safe,
We can be hated by someone
For being someone.
Sometimes it only takes a day,
Nobody’s here without a struggle,
We all came here from somewhere.”

Zephaniah reminds us that no one can, regardless of their nationality, race, or class escape from being compelled to flee their homeland.

Distinguished participants,

I would like to conclude my remarks by inviting you to reflect once again on the reality that at one point, everyone may have to leave their home.

On this occasion, I sincerely hope that human rights violations that force people to migrate will come to an end as soon as possible. I would like to express my gratitude to the esteemed Minister of Interior, the President of the Directorate of Migration Management, and everyone who have contributed to the organisation of this important Conference. I would also like to extend my thanks to the judges of the ECHR, particularly Ms. Saadet Yüksel, as well as to the Chairman and member of the Constitutional Court of the Republic of Azerbaijan, and members of the Constitutional Courts of Romania and Moldova for their participation. I hope that the presentations delivered during the conference and the subsequent discussions will be fruitful for all participants. I would like to once again extend my respectful greetings to everyone.