Violation Of The Right To Life And Prohibition Of Ill-Treatment Due To The Decision To Deport A Foreigner Sentenced To Death In His Country To A Third Country
Events
The applicant, who is a foreign national, was ordered to be deported on 19/8/2019 and 4/6/2020 due to his involvement in various criminal offenses. The applicant filed a lawsuit before the administrative court for the annulment of the deportation order dated 4/6/2020. The administrative court found that the deportation decision dated 4/6/2020 was actually a decision to correct the deportation decision dated 19/8/2019 and decided to annul the action on the grounds that the information and documents regarding the determination of the safe third country to which the deported applicant could be sent were not submitted to the case file, and that if the applicant was sent to any country, he would face the risk of being sent to countries where he would be subjected to the death penalty, torture, inhuman or degrading punishment or treatment, or where his life or freedom would be threatened.
Upon the applicant’s involvement in a threat and injury incident on 7/4/2021, a new registration correction decision was taken on the grounds that he posed a threat to public order or public security or public health. The applicant filed a lawsuit against the deportation order dated 19/8/2019 before the administrative court. The administrative court the applicant did not provide any explanation as to what kind of risk he was personally at in his country, that he continued to live in Turkey without applying to the official authorities despite the fact that he was in danger of deportation at any moment, that there was doubt about the credibility of his allegations that he might be subjected to ill-treatment in his country, the Court dismissed the case on the grounds that the first time he had raised the risk of ill-treatment in his home country was in the course of his deportation proceedings and that, as a result, he had not shown serious indications that he would be subjected to torture, inhuman or degrading punishment or treatment in the country of deportation.
Allegations
The applicant claimed that his right to life and the prohibition of ill-treatment had been violated by the decision to deport him to a third country, which had not yet been identified, on the grounds that he had been sentenced to death in his country and that his claims concerning the possible consequences of deportation had not been subjected to a rigorous examination in the lawsuit filed against this decision.
The Court’s Assessment
In the concrete case, it is possible to consider that it was not possible to deport the applicant to his country without his consent since the decision was to deport him to a third country to which he could go. However, according to the Constitutional Court, this decision does not prevent the applicant from being deported indirectly. As a matter of fact, the Law No. 6458 on Foreigners and International Protection and the Regulation on the Implementation of the Law on Foreigners and International Protection stipulate how to determine the country to which foreigners who are ordered to be deported to a third country will be deported and whether this country will be notified to the applicant, If the applicant has a claim that the identified country is not a safe country for him/her and/or that the third country in question will deport or extradite him/her to his/her country, there is no norm as to whether he/she can file a lawsuit based on this claim and, if he/she can file a lawsuit, whether this lawsuit will stop the deportation proceedings.
However, the aforementioned issue does not arise from the existence of a gap in the legal regulation. Because it is not possible to interpret Article 52 of Law No. 6458, which states that “Foreigners may be deported to their country of origin or transit country or to a third country with a deportation decision.”, as a deportation decision may be taken without determining the country to which the foreigner will be deported. Indeed, Article 4 of Law No. 6458 on the prohibition of refoulement and Article 55 on those who will not be subject to a deportation order do not mention the country of origin. Without mentioning the country of origin, Article 4 of Law No. 6458 states that no one shall be sent to a place where he/she will be subjected to torture, inhuman or degrading punishment or treatment, or where his/her life or freedom will be threatened because of his/her race, religion, nationality, membership of a particular social group or political opinion, and that a deportation decision shall not be taken against a foreigner who has serious indications that he/she will be subjected to the death penalty, torture, inhuman or degrading punishment or treatment in the country of deportation. It is clear that if the deportation order does not specify where the foreigner will be deported to, the judicial authorities cannot assess whether the foreigner will be subjected to the death penalty, torture, inhuman or degrading punishment or treatment in the country of deportation or whether the foreigner will be indirectly deported to the country of origin.
In short, the administrative court dismissed the case on the grounds that the applicant had failed to explain what kind of personal risk he was personally at in his home country, that there was doubt as to the credibility of his allegations that he might be subjected to ill-treatment in his home country and that the applicant had not shown serious indications that he would be subjected to torture, inhuman or degrading punishment or treatment in the country to which he would be deported. However, the applicant had submitted to the administrative court a court decision on a death sentence and a Turkish translation of that decision. Considering the content of these documents, the administrative court should investigate whether the decision, a photocopy of which was submitted to it and which was allegedly related to the death penalty, actually existed and, if so, whether it was finalized. Article 17 of the Constitution prohibits the direct or indirect deportation of a foreigner to a country where the foreigner will be subjected to the death penalty, which is a punishment incompatible with human dignity and is not listed in the last paragraph of Article 17 of the Constitution among the situations where the interference with the right to life is lawful, or where there are substantial grounds for believing that the foreigner will face a real risk of the application of an existing death penalty.
In the decision of the administrative court, it was observed that there was no assessment that the deportation order did not specify where the applicant would be deported to. However, in the decision on the annulment of the registration correction decision dated 4/6/2020, a copy of which was submitted by the applicant to the administrative court, which was issued by the administrative court itself and which contains evaluations similar to the above determination of the Constitutional Court; it was stated that no information and documents regarding the determination of the safe third country to which the applicant could be sent were submitted to the case file, that the applicant could be deported to any country based on the decision subject to the case, and that in this case, the applicant would face the risk of being sent to countries where he would be subjected to the death penalty, torture, inhuman or degrading punishment or treatment, where his life or material and/or moral existence would be under threat. Therefore, the administrative court should have made an assessment of the applicant’s allegations, taking into account the aforementioned annulment decision.
Under the current circumstances, it cannot be said that the applicant was provided with effective procedural safeguards protecting him against indirect deportation to his country and that the administrative court examined the applicant’s allegations of violation meticulously.
For the reasons explained above, the Constitutional Court held that the right to life and the prohibition of ill-treatment were violated.
