SECOND SECTION
DECISION
Application no. 53544/13
Muna ABDULKADIR BAROW and others
against Turkey
The European Court of Human Rights (Second Section), sitting on 13 May 2014 as a Committee composed of:
András Sajó, President,
Helen Keller,
Robert Spano, judges,
and Abel Campos, Deputy Section Registrar,
Having regard to the above application lodged on 21 August 2013,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, whose names appear in the appendix hereto, are eleven Somali nationals. They are represented before the Court by Ms S. Uludağ, a lawyer practising in Istanbul.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. The applicants had fled from Somalia to Syria some years ago, where they were recognised as refugees by the Office of the United Nations High Commissioner for Refugees (“UNHCR”).
4. Following the deterioration of the security situation in Syria, on 23 July 2013 the applicants crossed the border to Turkey illegally, but were apprehended in Hatay on the same day by Turkish security forces. The applicants immediately informed the authorities that they wanted to seek asylum in Turkey. It appears that their request was disregarded and they were placed in detention at the foreigners’ department attached to the Hatay police headquarters.
5. On 2 August 2013 the Ministry of the Interior ordered the applicants’ deportation from Turkey. This order was not officially served on the applicants.
6. Upon being verbally informed of their impending deportation, on 21 August 2013 the applicants contacted the Helsinki Citizens Assembly (“HCA”) in Istanbul, which is a non-governmental organisation that offers free legal counselling and assistance to refugees and asylum seekers.
7. Later on the same date, the applicants’ representative, who works as a legal consultant for the HCA’s Refugee Advocacy and Support Programme, asked the Court, under Rule 39 of the Rules of Court, to adopt an interim measure to stop the applicants’ deportation to Somalia, where they would be at risk of treatment contrary to Articles 2 and 3 of the Convention. She also sent an application form, by fax.
8. On 22 August 2013 the President of the Chamber to which the case was allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Turkey, under Rule 39 of the Rules of Court, that the applicants should not be deported to Somalia until further notice and that the case be given priority under Rule 41. The President also decided to request the parties, under Rule 54 § 2 (a) of the Rules of Court, to present certain information by 12 September 2013. The applicants were further requested to submit a copy of the duly completed application form by post within the same time‑limit, as well as authority forms signed by them and their appointed representative.
9. On the same date, the first seven applicants were taken to Istanbul for the execution of the deportation order.
10. The remaining four applicants, who are a family (a mother, İlhan Abdo Safi Yusuf, and her three children), were released from detention upon Ms Yusuf’s request to go to the Netherlands with her children, where her husband had already been granted refugee status. They were accordingly authorised to reside in a designated address in Hatay pending their application for family reunion before the Dutch authorities.
11. On 12 September 2013 the applicants’ representative submitted, by fax, some of the requested information and documents, including the copies of the authority forms in respect of the first seven applicants who had been transferred to Istanbul. They informed the Court that they were in the process of obtaining the authority forms from the remaining four applicants in Hatay. They did not, however, send the original application form by post as requested.
12. On 3 October 2013 the applicants’ representative informed the Court, still without submitting the original application form and the missing authority forms, that the first seven applicants held in Istanbul had been released from detention on 2 September 2013 and had been issued with temporary asylum seeker cards. On the same date the Government confirmed that the first seven applicants had been given authorisation to reside in the province of Elazığ with asylum seeker status.
13. The Government subsequently informed the Court on 4 November 2013, inter alia, that the applicants’ whereabouts were unknown: the first seven applicants had either never gone to Elazığ as instructed, or had left that province after registering with the Elazığ Security Directorate; similarly İlhan Abdo Safi Yusuf and her children had never reported to the designated address in Hatay.
14. On 21 November 2013 the applicants’ representative submitted the authority forms for the remaining four applicants, again by fax.
15. On 11 December 2013 the applicants’ representative was requested once again, via fax and registered letter, to submit the completed original application form, bearing her signature, as well as the original copies of all authority forms, until 2 January 2014 by post.
16. In the absence of a response by the indicated date, on 15 January 2014 the Court warned the applicants’ representative, via fax and registered letter, that failure to send the requested application and authority forms by post by 29 January 2014 might lead to a decision to strike the application out of the Court’s list.
17. On 29 January 2014 the applicants’ representative submitted the original authority forms by post, but not the application form.
B. Relevant Court procedure
1. The Rules of Court
18. At the time of the lodging of the present application, the Rules of Court, as pertinent, provided as follows (footnotes omitted):
Rule 45 – Signatures
“1. Any application made under Articles 33 or 34 of the Convention shall be submitted in writing and shall be signed by the applicant or by the applicant’s representative.
Rule 47 – Contents of an individual application
“1. Any application under Article 34 of the Convention shall be made on the application form provided by the Registry, unless the President of the Section concerned decides otherwise...
...
4. Failure to comply with the requirements set out in paragraphs 1 and 2 of this Rule may result in the application not being examined by the Court.
5. The date of introduction of the application for the purposes of Article 35 § 1 of the Convention shall as a general rule be considered to be the date of the first communication from the applicant setting out, even summarily, the subject matter of the application, provided that a duly completed application form has been submitted within the time-limits laid down by the Court. The Court may for good cause nevertheless decide that a different date shall be considered to be the date of introduction. ... ”
2. The Practice Direction on the Institution of Proceedings
19. The Practice Direction on the Institution of Proceedings, which is issued by the President of the Court under Rule 32 of the Rules of Court and which supplements Rules 45 and 47, provided as follows at the material time (footnotes omitted):
“4. If an application has not been submitted on the official form or an introductory letter does not contain all the information referred to in Rule 47, the applicant may be required to submit a duly completed form. It must be despatched within eight weeks from the date of the Registry’s letter requesting the applicant to complete and return the form.
Failure to comply with this time-limit will have implications for the date of introduction of the application and may therefore affect the applicant’s compliance with the six-month rule contained in Article 35 § 1 of the Convention.
5. Applicants may file an application by sending it by fax. However, they must despatch the signed original by post within eight weeks from the date of the Registry’s letter referred to in paragraph 4 above.
6. Where, within six months of being asked to do so, an applicant has not returned a duly completed application form, the file will be destroyed.”
COMPLAINTS
20. The applicants complained that they would be at risk of treatment contrary to Articles 2 and 3 of the Convention if deported to Somalia, and that they had no domestic remedies within the meaning of Article 13 to raise their allegations under Articles 2 and 3. They further maintained under Article 5 § 1 that they had been unlawfully deprived of their liberty and under Article 5 § 2 that they had not been duly and promptly informed of the reasons for their detention.
THE LAW
21. The Court notes that by a letter sent on 22 August 2013 the applicants’ representative was informed about the requirement to supply, inter alia, a duly completed and signed formal application form by post by 12 September 2013. An “explanatory note” for filling in the application form was also enclosed to that letter, which explained the requirements set out in the relevant sections of the Rules of Court and the Practice Direction cited above (see paragraphs 18 and 19 above). The duly completed application form was not submitted within the indicated time-limit.
22. The Court further notes that despite repeated requests made to the applicants’ representative subsequently, and the lapse of more than six months since the Court’s letter of 22 August 2013, the signed original application form has not yet been received.
23. In these circumstances, and having regard to the Rules of Court and the Practice Direction noted above, the Court cannot but conclude that there is no “application” in the instant case for the purposes of Article 34 of the Convention. Accordingly, it is appropriate to strike the case out of the Court’s list of cases (see, mutatis mutandis, Ahmed Al Saady v. the Netherlands (dec.), no. 199/10, 14 September 2010).
24. The Court, however, also stresses that the above finding does not prevent the applicants from lodging a new application before the Court and from making use of the available procedures, including under Rule 39 of the Rules of Court, in respect of any new circumstances that may arise, in compliance with the requirements of Articles 34 and 35 of the Convention (see Dobrov v. Ukraine (dec.), no. 42409/09, 14 June 2011; Bakoyev v. Russia, no. 30225/11, § 100, 5 February 2013; and Budrevich v. the Czech Republic, no. 65303/10, § 69, 17 October 2013).
25. In view of the above, it is appropriate to strike the case out of the list and to discontinue the application of Rule 39 of the Rules of Court.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Abel CamposAndrás Sajó
Deputy RegistrarPresident
Appendix
Muna ABDULKADIR BAROW is a Somali national who was born in 1981 or 1988 Abaria SHARIF ABOW is a Somali national who was born in 1958 Aisha MOHAMAD SHARIF (also referred to as Aisha ABDULKADIR BAROW in some documents) is a Somali national who was born in 1986 Faduma ALI ADOW is a Somali national who was born in 1975 Amina SHARIF MOHAMAD ALI is a Somali national who was born in 1999 Shukri ABDULLAHI AHMED is a Somali national who was born in 1955 Salma ALI AHMAD is a Somali national who was born in 1994 İlhan ABDO SAFİ YUSUF is a Somali national who was born in 1972 Jawaahir DERIE HAGI SEDO is a Somali national who was born in 1995Abdullahi DERIE HAGI SEDO is a Somali national who was born in 1997Ismahan DERIE HAGI SEDO is a Somali national who was born in 2001 or 2002
Full & Egal Universal Law Academy