ECtHR - Abdolkhani and Karimnia v. Turkey, (no. 30471/08), 22 September 2009

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Country of Applicant: 
Iran
Date of Decision: 
22-09-2009
Citation: 
Abdolkhani and Karimnia v. Turkey (no. 30471/08)
Court Name: 
European Court of Human Rights ( Second Section)
Headnote: 

The applicants, who had been recognised as refugees by UNHCR, faced risk of ill-treatment contrary to Article 3 upon Turkey’s proposed  deportation of them to either Iran or Iraq. They had no effective opportunity to make an asylum claim or challenge their deportation. Further their detention had no legal justification and they had been unable to challenge its lawfulness. The Court found violations of Article 3, 13, 5(1), 5(2) and 5(4). 

Facts: 

The applicants, Mr Abdolkhani and Mr Karimnia are nationals of Iran who joined the People’s Mojahedin Organisation in Iran (PMOI) in 1992 and 2001. They travelled to Iraq and lived in the Al-Ashraf camp where PMOI members were accommodated. They left the organisation in 2005 and 2006 as they disagreed with its goals and methods, and went to the Ashraf Refugee Camp created by the United States in Northern Iraq.

UNHCR recognised them as refugees in 2006 and 2007, on the basis of their political opinions. After the Ashraf camp closed, the applicants left, arriving Turkey in 2008 where they were immediately arrested and deported to Iraq, without regard for their asylum request, on the basis of illegal entry. They re-entered Turkey a few days later and were detained in the foreigner’s department. Their request for legal assistance was not complied with, and they were convicted of illegal entry, with a suspended sentence.  At the hearing they stated that they were at risk of death in Iran and had entered Turkey with the assistance of a smuggler in order to go to Canada and claim asylum.

The Turkish authorities attempted to deport them to Iran, but the Iranian authorities refused to admit them. They were held in Haskoy police headquarters and later transferred to an accommodation centre for foreigners.

 They lodged an application with the ECtHR requesting not to be deported to Iran or Iraq, and Rule 39 interim measures were granted.

The applicants made various petitions to the Turkish authorities for temporary asylum, with details of the UNHCR files, but did not receive any reply.

They complained that they were at real risk of death or ill-treatment contrary to Articles 2 and 3 ECHR if deported to Iran or Iraq. As former members of the PMOI they claimed to be at risk of the death penalty in Iran, and that they would be subject to ill-treatment in Iraq as they would be considered to be allies of the former regime. In addition they alleged a violation of Article 13 as they had been prevented from lodging an asylum claim and challenging their deportation. Finally, they alleged breaches of Article 5 on the basis that their detention was unlawful, they had not been informed of the reasons for it, and they had been unable to challenge it.

Decision & Reasoning: 

Considering first the admissibility of the claim, the Court rejected the argument of the Turkish government that the applicants lacked victim status as they had not been issued a deportation order, as they had already been deported without one so this did not eliminate such a risk. There had not been a failure to exhaust domestic remedies given that an application to the administrative courts for annulment of deportation had no automatic suspensive effect. The application was declared admissible.

Article 3

The Court had before it numerous international reports, as well as the UNHCR submissions, which indicated that former and current PMOI members had been expelled from Turkey to Iran, with some being executed and others dying in prison in suspicious circumstances. It considered that due weight should be given to UNHCR’s conclusions regarding the applicant’s claims before the Court made its own assessment of the risk, given that the UNHCR had interviewed them and found their accounts credible. The Court concluded that there were serious reasons to believe that former or current PMOI members and sympathisers could be killed or ill-treated in Iran, and that the applicants were affiliated to them in the past. As such there was a real risk of Article 3 violations based on their political opinions if returned to Iran.

It also found a risk of Article 3 violation if the applicants were deported to Iraq, as the objective material showed that Iranians were systematically deported without a proper legal procedure, and former PMOI members being refused at the border and potentially refouled to Iran.  It rejected the argument of the Turkish government that allowing PMOI members to stay in Turkey would create a risk to national security, public safety and order, reiterating the absolute nature of Article 3.

Article 13

In relation to article 13, the Court noted the passivity of the Turkish national authorities in relation to the applicant’s allegations of risk of ill-treatment on return to Iran or Iraq. It observed that they had been deported to Iraq without having their statements taken and without a formal deportation decision being taken or procedural safeguards. They had not received any response to their requests for asylum, reasons for the non-consideration of their claim or been provided legal assistance which amounted to a lack of ‘rigorous scrutiny’ of their Article 3 allegations. As they had never been served with a deportation order or notified of the reasons of this, they were unable to challenge this decision. In any event, there was no suspensive effect to an application to annul a deportation order, so judicial review would not be an effective remedy. The Court concluded that the applicants were not afforded an effective and accessible remedy in relation to their complaints under Article 3, in violation of Article 13 .

Article 5

The Court noted that the applicants had been detained in centres which they were unable to leave, since their conviction for illegal entry on 23 June 2008, with no reasons being given, no access to a lawyer, limited access by the UNHCR, and no ability to communicate with the outside world. This amounted to a deprivation of liberty.

The Court found that there were no clear legal provisions establishing the procedure for ordering and extending detention with a view to deportation, or setting time-limits which meant that the applicants’ detention had insufficient legal basis. Domestic law did not protect the applicants from arbitrary detention and it was unlawful contrary to article 5(1) ECHR. The reasons for their detention were never communicated to the applicants in violation of article 5(2), although their detention was maintained for purposes of immigration control after being charged for criminal offences instead of them being released. This, along with the denial of legal assistance meant that any right to appeal against detention was deprived of effectiveness. The Turkish legal system did not provide the applicants with a remedy to enable a judicial review of the lawfulness of their detention, contrary to article 5(4). 

Outcome: 

The Court unanimously found that the deportation of the applicants to Iran or Iraq would violate Article 3 ECHR. There was no effective remedy in relation to their article 3 complaints, in contravention of article 13. Their detention violated article 5(1), 5(2) and 5(4). 

Observations/Comments: 

UNHCR intervened as a third party in this case, submitting written observations. 

Case Law Cited: 

CJEU - Case T-284/08, People’s Mojahedin Organization of Iran v Council of the European Union

ECtHR - Nasrulloyev v. Russia, Application No. 656/06

ECtHR - T.I. v United Kingdom (Application no. 43844/98)

ECtHR - Mamatkulov Askarov v Turkey, Applications nos. 46827/99 and 46951/99

ECtHR - Jabari v Turkey, 11 July 2000, (Application no. 40035/98)

ECtHR - Shamayev v Georgia (April 2005) (Application no. 36378/02)

ECtHR - Conka v Belgium (Application no. 51564/99)

ECtHR - Üner v. the Netherlands [GC], Application No. 46410/99

ECtHR - Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI

ECtHR - Muminov v. Russia, Application No. 42502/06

ECtHR - Vachev v. Bulgaria, no. 42987/98

ECtHR - Stoichkov v. Bulgaria, Application No. 9808/02

ECtHR - Abdulaziz, Cabales and Balkandali v. the United Kingdom, Application Nos. 9214/80, 9473/81 and 9474/81

ECtHR - De Wilde, Ooms and Versyp v. Belgium, Application Nos. 2832/66, 2835/66 and 2899/66
Other sources cited: 

Council of Ministers Regulation on the procedures and principles related to possible population movements and foreigners arriving in Turkey, 1994; articles 3,4, 5,6, 7, and 30

Ministry of the Interior Circular with directive regarding the procedures and principles to be applied when implementing the 1994 Regulation, 2 June 2006 (“Circular no. 57”) 

The Report of the United Kingdom Border Agency (Country of Origin Information Report) on Iran, dated 21 April 2009

Report of UNHCR Resettlement Service on February 2008

UNHCR press release, ‘UNHCR deplores refugee expulsion by Turkey which resulted in four deaths’ 25 April 2008

Amnesty International press releases dated 7 September 2006 and 20 March 2009

PACE press statement, ‘Iranians in Camp Ashraf in Iraq are in urgent need of international protection’, 14 April 2009

European Parliament resolution on the humanitarian situation of camp Ashraf residents, 24 April 2009

Report of the United Nations Working Group on Arbitrary Detention on its mission to Turkey, 7 February 2007 

Authentic Language: 
English
State Party: 
Turkey
National / Other Legislative Provisions: 
Turkey - Turkish Constitution - Article 125
Turkey - Turkish Administrative Procedure Act (Law no. 2577)
Turkey - Sections 4
8(5)
19 and 23 Passport Act (Law no. 5682) and the Act on the Residence and Travel of Foreigners in Turkey (Law no. 5683)
Turkey - Attorneys Act (Law no. 1136) Section 2(3)