Events
As a result of the fight in which the applicant, who is a citizen of the Syrian Arab Republic and is in our country with temporary protection status, was involved, it was decided to deport him to a safe third country or, if he volunteers, to ensure his exit to the country of origin. However, it was decided that he should be placed under administrative supervision for six months on the grounds that he poses a threat to public order and a deportation decision has been made against him. The cancellation of the administrative supervision decision was requested by the applicant’s representative, and a lawsuit was filed before the administrative court requesting the cancellation of the deportation decision. According to the voluntary return request form issued, the applicant was allowed to exit to the country of origin through the border gate without waiting for the result of the case.
In the case filed with the administrative court on behalf of the applicant requesting the cancellation of the deportation decision, the decision to stop the execution was made in the first place – after the applicant left Turkey – and then the final decision to cancel it was made.
The Allegations
The applicant claimed that the right to life, the prohibition of ill-treatment and the right to effective application in connection with these rights were violated due to deportation by having him sign a voluntary repatriation request form even though he did not have consent.
The Court’s Assessment
A. In Terms of the Claim that the Right to Life and the Prohibition of Ill-Treatment have been Violated
The applicant was sent to his country of origin on the basis of the voluntary return request form without waiting for the result of the case for the cancellation of the deportation decision issued against him.
Where it is accepted that the risk in the country of return is at a real level of risk beyond a possibility, the state’s positive obligation to protect against risks to the lives or material and spiritual assets of foreigners continues. In the concrete application, it was accepted that there was a disadvantage in deporting the applicant to the country of origin in the decision on deportation, that is, the risk was at a real risk level beyond a possibility. In this case, it should be emphasized whether the applicant, who is claimed to be a volunteer, was adequately informed before the return, that is, whether this return was conscious. The printed voluntary return form did not contain any details of the applicant’s personal situation in Syria beyond the general statements about the risks, nor did it explain why the possible risk justifying the applicant’s temporary protection – and also accepted in the deportation decision – was no longer valid, beyond the general statements about the risks.
There must be quite strong evidence to say that the applicant returned voluntarily with his consent and consciously only one day after meeting with his lawyer -and on the same day as the case for the annulment of the deportation order, which was apparently filed on his instructions. However, the applicant’s lawyer was not informed when signing the voluntary return form, and no representatives of any international or national non-governmental organizations were present. As a matter of fact, the form does not have the signature of the applicant’s representative or the representative of a non-governmental organization. However, in the circular of the Ministry of Interior on the subject, it is stated that the form will be signed by the foreigner who wants to make a return, as well as by a representative of an international or national non-governmental organization.
In the light of these evaluations, it was seen that the applicant was not adequately informed about the actual risk accepted in the deportation decision, and it was understood that it could not be said that he had returned to his country of origin consciously and voluntarily.
The Constitutional Court has ruled that the right to life and the prohibition of ill-treatment have been violated on the grounds described.
B. In Terms of the Claim that the Right to Effective Recourse has been Violated in Connection with the Right to Life and the Prohibition of Ill-Treatment
As a rule, the applicant, who cannot be deported until the conclusion of the trial due to the fact that he has filed an annulment lawsuit against the deportation decision taken against him, has not been expected to conclude the trial on the grounds of the foreigner’s consent, due to ensuring his immediate exit from the country on the day the voluntary return form was signed; the decisions to stop and cancel the execution in favor of the applicant did not have an effective and actual result, and the effectiveness of the annulment case was impaired. The applicant failed to take advantage of the means with a stopping effect that would enable him to object to the repatriation.
The applicant’s lawyer was not informed when signing the form, and the circular provision for signing the form by an international or national non-governmental organization representative, which was stipulated to prevent public authorities from abusing the voluntary return procedure, was not followed; that is, it was not convincingly demonstrated that the applicant explicitly waived the appeal path, in other words, consciously and intelligently.
The Constitutional Court has ruled that the right to life and the right to effective recourse have been violated in connection with the prohibition of ill-treatment on the grounds described.
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