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

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Country of Applicant: 
Iran
Date of Decision: 
11-07-2000
Citation: 
Jabari v. Turkey, Application no. 40035/98
Court Name: 
European Court of Human Rights
Relevant Legislative Provisions: 
Headnote: 

The proposed deportation of the applicant to Iran would violate Article 3 ECHR, and as she was prevented from having the merits of her claim examined due to non-compliance with procedural time limits, there was a breach of Article 13 ECHR.  This was because she had no chance to challenge the decision on appeal, or access to a remedy with suspensive effect.

Facts: 

The applicant is an Iranian national who was arrested in Iran in October 1997 after being caught in public with a married man.  She was released from detention with the help of her family, and entered Turkey illegally in November 1997. She used a false Canadian passport in an attempt to reach Canada, but was arrested by the French police while in transit. She was returned to Istanbul, where she was arrested for entering on a forged passport. She claimed asylum but this was rejected on the basis that it had been submitted out of time, and should have been registered within 5 days of her arrival in Turkey in compliance with the Asylum Regulation 1994

On 16 February 1998, UNHCR recognised the applicant as a refugee on the basis of her well-founded fear of persecution on return to Iran as she was at risk of inhuman punishment such as death by stoning, flogging and whipping. She lodged an application at the Ankara Administrative Court against her deportation, which was dismissed.

She claimed that her removal to Iran would put her at risk of Article 3 ill-treatment, and that she had no effective remedy to challenge the decision by which her asylum claim was rejected as being out of time. 

Decision & Reasoning: 

The Court reiterated the need for rigorous scrutiny to be given to any claim that deportation would expose a person to ill-treatment contrary to Article 3. It found that in this case the authorities had not conducted any meaningful assessment of the applicant’s claim including its arguability. It considered that the automatic and mechanical application of the five-day registration requirement was contrary to the protection of the fundamental value enshrined in Article 3 ECHR. The Ankara Administrative Court, hearing her judicial review challenge, only considered the formal legality of her deportation rather than the substance of her asylum claim  

It placed weight on the fact that UNHCR had considered the applicant to be a refugee after an interview and evaluation of the risk she faced. With regard to the international reports on the situation in Iran for women found guilty of adultery, it concluded that deporting her to Iran would give rise to a violation of Article 3 ECHR.

In relation to Article 13 ECHR the Court noted that her asylum claim had not been assessed by the domestic authorities due to non-respect of procedural requirements, in a non-appealable decision. Although she could lodge a judicial review application to challenge her deportation, this did not have suspensive effect or give her an opportunity to have the merits of her claim examined. The Court held that Article 13 required independent and rigorous scrutiny of a claim to be at risk of Article 3 ill-treatment, with suspensive effect for the measure challenged. It therefore found that Article 13 ECHR had been violated.

Outcome: 

The Court found that there had been a breach of Article 13 ECHR, and the deportation of the applicant to Iran would violate Article 3 ECHR.

Case Law Cited: 

ECtHR- Vilvarajah and Others v. the United Kingdom, Application Nos. 3163/87 13164/87 13165/87 13447/87 13448/87

ECtHR - Cruz Varas & Others v Sweden (Application no. 15576/89)
Other sources cited: 

Amnesty International Annual Report 1999

US Department of State 1999 Country Reports on Human Rights Practices

Authentic Language: 
English
State Party: 
Turkey
National / Other Legislative Provisions: 
Turkey - Turkish Constitution - Article 125
Turkey - Turkish Constitution - Article 155
Turkey - Article 5 of the Code on the establishment and duties of tax courts
administrative courts and regional administrative courts
Turkey - Article 25 of the Act on the Supreme Administrative Court
Turkey - Section 4 Asylum Regulation 1994
Turkey - Passport Act 1950
Turkey - Asylum Regulation of 30 November 1994
Iran - Article 102 of the Islamic Penal Code