Press Release No: Individual Application 14/21
Press Release concerning the Judgment Finding a Violation of the Right to an Effective Remedy due to the Failure to Examine the Action without Considering the Legal Aid Conditions
On 2 December 2020, the Second Section of the Constitutional Court found a violation of the right to an effective remedy, safeguarded by Article 40 of the Constitution, in conjunction with Article 17 thereof, in the individual application lodged by S.B. (no. 2017/19758).
The applicant, a Russian national of Chechen origin who entered Turkey legally in 2013 due to the oppressions in his own country, applied to the relevant security directorate to obtain a legal residence permit in 2015. However, he was taken into custody, and his deportation was ordered. The applicant then brought an action before the incumbent administrative court for the annulment of the deportation order and requested to be granted legal aid. However, his request was dismissed by the administrative court due to the lack of a bilateral agreement on legal aid between Turkey and the Russian Federation. The administrative court declared the applicant’s action not filed due to his failure to pay the court and postage fees. In the appellate proceedings, the Council of State also considered the applicant’s requests for appeal as well as for rectification of decision as not filed due to his failure to pay the relevant fees.
The Applicant’s Allegations
The applicant maintained that the right to an effective remedy, taken in conjunction with the prohibition of ill-treatment, had been violated due to the inferior courts’ failure to make an examination on the merits of the action he had brought for the annulment of the order -whereby he would be deported to the country entailing a risk to both his physical and spiritual integrity- due to the refusal of his request for legal aid.
The Court’s Assessment
Pursuant to the obligation to ensure protection against ill-treatment, the foreigners whose deportation has been ordered are to be provided with the opportunity to effectively challenge such orders.
In the present case, the first instance court did not make an inquiry and assessment as to the justification of the applicant’s request for legal aid but failed to take into consideration his allegations just because of his failure to pay the relevant fees and expenses in due time.
During the appellate proceedings, nor was any examination made as to the legal aid. Although the applicant made a reference to certain quashing decisions rendered by the Council of State where it granted legal aid to the complainants in situations similar to that of the applicant, the Council of State failed to make an assessment as to the refusal of the applicant’s legal aid.
It has been observed that without conducting any inquiry into the applicant’s allegations based on material facts, the administrative court declared the applicant’s action not filed, and in the same vein, the Council of State also considered the applicant’s requests regarding the appellate process as not filed, which precluded the applicant’s action being examined on the merits; and that the applicant was therefore deprived of the opportunity to obtain an effective remedy.
Consequently, the Court has found a violation of the right to an effective remedy in conjunction with the prohibition of ill-treatment.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.