Individual Application

The Facts

It was decided that the applicant, a national of the Syrian Arab Republic, who had been in Türkiye under temporary protection, be deported to a safe third country, or his country of origin if he volunteered due to a brawl he had been involved in. In addition, it was also decided that the applicant be placed in administrative detention for six months for posing a threat to public order and by virtue of the deportation order against him. The applicant’s lawyer requested the annulment of the decision on administrative detention and brought an action before an administrative court, seeking the quashing of the deportation order. The applicant was deported to his country of origin based on the voluntary repatriation request form pending the proceedings before the administrative court.

In the proceedings concluded -after the applicant had left Türkiye- on behalf of the applicant to annul the deportation order, the court initially rendered a decision on the stay of execution and later quashed the deportation order with final effect.

The Applicant’s Allegations

The applicant claimed that his right to life and the prohibition of ill-treatment, as well as the right of an effective remedy in conjunction therewith, had been violated on the grounds that he had been forced to sign a voluntary repatriation request form despite the lack of his consent

The Court’s Assessment

A. Alleged Violation of the Right to Life and the Prohibition of Ill-Treatment

The applicant was sent to his country of origin on the basis of a voluntary repatriation request form without waiting for the conclusion of the proceedings initiated for the annulment of the deportation order against him.

In cases when it is accepted that the risk regarding the country to which the relevant individual would be deported is beyond a mere possibility but a real risk, the State’s positive obligation to protect the lives of foreigners or their material and spiritual existence continues. In the present application, in the deportation order of the applicant, it was acknowledged that his deportation to the country of origin involved a real risk beyond a mere possibility. Under these circumstances, it must be assessed whether the applicant was sufficiently informed before allegedly voluntary repatriation, in other words, whether this deportation was based on a conscious decision. The voluntary repatriation request form which was drafted as pre-printed did not provide any details on the personal situation of the applicant in Syria, save for the general statements about risks. Nor did it put forward any explanation as to why the potential risk that had justified the applicant's temporary protection - and which had been recognised in the deportation order - had ceased to be valid.

There must be convincing evidence to suggest that the applicant was voluntarily repatriated on the basis of his informed consent and a conscious decision a day after the interview with his lawyer -and on the same day when the proceedings for the annulment of his deportation order was initiated on his request. Nevertheless, his lawyer was not informed of, nor was a representative of an international or a national non-governmental organisation was present while the applicant was signing the voluntary repatriation request form. As a matter of fact, the form does not include the signature of the applicant’s lawyer nor of a representative from a non-governmental organisation. However, the circular of the Ministry of Interior as to the voluntary repatriation request form indicates that the form must be signed also by a representative from an international or a national non-governmental organisation, along with the foreigner in question.

In light of these assessments, it has been observed that the applicant was not sufficiently informed of the real risk which had been also acknowledged in the deportation order. It cannot be also said that the applicant was repatriated to his country of origin on the basis of his conscious decision and consent.

Consequently, the Court has found violations of the right to life and the prohibition of ill-treatment.

B. Alleged Violation of the Right to an Effective Remedy in Conjunction with the Right to Life and the Prohibition of Ill-Treatment

The decision in favour of the applicant on the stay of execution and the annulment of the deportation order remained ineffective and did not yield a concrete consequence and the effectiveness of the annulment proceedings was prejudiced on the grounds that the applicant had been immediately deported based on the foreigner’s consent on the day of the signing of the voluntary repatriation request form without the conclusion of the proceedings despite the rule that the foreigners shall not be deported until the conclusion of the annulment proceedings brought against the deportation order. The applicant could not make use of the remedies capable of staying the execution of the relevant order and enabling him to challenge the deportation order.

The applicant’s lawyer was not informed of the signing of the form. Despite the circular which stipulates that the form shall be signed by a representative of an international or a national non-governmental organisation, a provision envisaged to prevent public authorities from abusing the voluntary return procedure, this procedure was not complied with. In other words, the authorities failed to convincingly demonstrate that the applicant waived his right to challenge on the basis of his informed and conscious consent.

Consequently, the Court has found a violation of the right to an effective remedy in conjunction with the right to life and the prohibition of ill-treatment.