CASE OF B.S. v. TÜRKİYE

FIFTH SECTION

CASE OF B.S. v. TÜRKİYE

(Application no. 14820/19)

JUDGMENT
 

STRASBOURG

21 March 2024

This judgment is final but it may be subject to editorial revision.

In the case of B.S. v. Türkiye,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Stéphanie Mourou-Vikström, President,
 Lado Chanturia,
 Mattias Guyomar, judges,
and Sophie Piquet, Acting Deputy Section Registrar,

Having regard to:

the above application lodged on 8 March 2019;

the decision to give notice of the complaints concerning Articles 2 and 3 of the Convention to the Turkish Government (“the Government”), represented by their Agent, and to declare inadmissible the remainder of the application;

the decision not to have the applicant’s name disclosed;

the decision to give priority to the application (Rule 41 of the Rules of Court);

the decision to indicate an interim measure to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with;

the parties’ observations;

Having deliberated in private on 22 February 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns the applicant’s threatened expulsion to Iran, where she would allegedly face a real risk of being sentenced to life imprisonment or death owing to her conversion from Islam to Christianity and of being subjected to ill-treatment at the hands of the Iranian authorities and/or her former husband. The applicant also complains of the alleged failure of the Turkish authorities and courts to conduct a proper and timely assessment of her allegations.

2.  On 4 March 2017 the applicant left Iran and legally entered Türkiye. The applicant subsequently arranged for her son to enter Türkiye illegally; the son joined her later in 2017. On 31 May 2017 the applicant lodged an application for asylum with the Trabzon governor’s office, following which an interview was conducted with the applicant on 6 July 2017 at the Provincial Directorate of Migration Management (“the Migration Authority”). The applicant stated that she had had to flee Iran as a result of the harassment to which she had been subjected by her former husband. She further stated that she wished to apply for asylum in Türkiye with a view to her eventually being resettled in Europe. She also stated that she was an adherent of the Shi’a branch of Islam and that she observed certain fundamental Islamic practices, such as fasting.

3.  The application for asylum lodged by the applicant was rejected by the domestic courts, which mainly deemed that the applicant’s allegations were unsubstantiated and lacked credibility. In its judgment of 21 November 2017, the Trabzon Administrative Court observed that although the applicant asserted that she and her son had been subjected to violence and harassment by her former husband (from whom she had been divorced ten years earlier) during the time that they had lived with him, the applicant and her son had subsequently lived by themselves in Tehran without any problems for eight years. As to the applicant’s assertion that her former husband had allegedly discovered their whereabouts in Tehran and had started to stalk the applicant and her son in 2016, the court stressed that there appeared to be no information (either lodged in the case file or contained in the applicant’s own statements) to indicate that that situation had prevented them from living safely in Iran or prevented them from changing their place of residence in that country. Taking into account the applicant’s statement that she had applied for asylum with a view to being resettled somewhere else in Europe, the Trabzon Administrative Court concluded that the applicant had failed to provide and to elaborate on a consistent account of her alleged fear of persecution and that her assertions had therefore been unfounded. On 20 April 2018 the Samsun Regional Administrative Court upheld the judgment of 21 November 2017 on appeal.

4.  Subsequently, the Trabzon governor’s office issued an order for the applicant’s deportation on the grounds that the applicant’s application for asylum had been rejected.

5.  On 23 May 2018 the applicant brought an action for the annulment of the deportation order. She argued that deporting her to Iran would expose her to a real risk of death or ill-treatment in view of the fact that after moving to Türkiye she had converted from Islam to Christianity and that her former husband had informed the Iranian authorities of her conversion. In support of her claims, she submitted a copy of a baptism certificate dated 15 May 2018 and issued by the Gedikpaşa Armenian Evangelical Church (Gedikpaşa Ermeni Protestan Kilisesi). The Trabzon Administrative Court dismissed the applicant’s case, referring solely to the findings in the judgment of 21 November 2017 with respect to the rejection of the applicant’s application for asylum.

6.  On 23 October 2018 the applicant lodged before the Constitutional Court a request for an interim measure suspending the deportation proceedings. She complained that she would be exposed if removed to Iran to a real risk of death or ill-treatment as a result of her sur place conversion (that is, her conversion in Türkiye to Christianity – which had allegedly been disclosed to the Iranian authorities by her former husband) and the ongoing threats that she was receiving from the latter.

7.  In its summary decision of 12 November 2018, the Constitutional Court rejected the above-mentioned interim measure request and individual application as manifestly-ill founded.

8.  From the documents submitted it appears that the applicant and her son continue to reside in Türkiye.

THE COURT’S ASSESSMENT

9.  It can be seen from the applicant’s submissions to the Court that her complaint pertains to the alleged ill-treatment and persecution to which her threatened deportation would lead as a result of her sur place conversion to Christianity. She cited Articles 2 and 3 of the Convention, which read:

Article 2

“1.  Everyone’s right to life shall be protected by law. ...

...”

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

10.  In their submissions the Government reiterated the findings of the Trabzon Administrative Court (see paragraph 3 above) and argued that the applicant had failed to put forward any argument capable of demonstrating that there existed substantial grounds for believing that, if she were to be returned to Iran, she would be exposed to a real risk of being subjected to treatment contrary to Articles 2 and 3 of the Convention. They further stressed that the applicant’s arguments were not genuine, as she had brought her alleged religious conversion to the attention of the domestic authorities neither during her interview with the Migration Authority nor before the courts during the proceedings relating to the rejection of her application for asylum. Accordingly, she had for the first time cited her alleged conversion to Christianity (and submitted a copy of her baptism certificate) only after almost a year had passed since her entry into Türkiye – and, moreover, only after the delivery of the final decision rejecting her application for asylum and the issuance of a deportation order against her. Indeed, the date on the baptism certificate in fact indicated that she had been baptised only after the deportation order had been issued against her. The Government therefore requested that the present application be declared inadmissible as manifestly ill-founded.

11.  The applicant contested those arguments and maintained the arguments noted in paragraph 9 above, which she stated had been brought to the attention of the Iranian authorities by her former husband.

12.  The Court observes that the Government’s objections in respect of admissibility are closely linked to the applicant’s complaints under Articles 2 and 3 of the Convention. Thus, without prejudging the merits of those complaints, the Court cannot reject them as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. That being so, the Court considers that they should be joined to the merits of those complaints and examined at the following stage (see, mutatis mutandis, O.M. and D.S. v. Ukraine, no. 18603/12, §§ 77-79, 15 September 2022).

13.  The relevant general principles were summarised by the Court in F.G. v. Sweden ([GC], no. 43611/11, §§ 110-27, 23 March 2016).

14.  In respect of the present case, given the nature of applicant’s complaints, the Court finds that the issues under Articles 2 and 3 of the Convention are indissociable; it will therefore examine them together (see, among other authorities, M.A.M. v. Switzerland, no. 29836/20, § 62, 26 April 2022).

15.  The Court firstly observes that, even though the applicant argued that she had repeatedly brought her alleged sur place conversion to the attention of the domestic authorities well before the issuance of the deportation order against her, she has not added any explanation or supporting documents to the case file indicating that she actually did so. In this regard, the Court also notes that the applicant’s baptism certificate was issued after a deportation order was made against her and only eight days before she sought the annulment of that order before the Trabzon Administrative Court. Furthermore, while the applicant stated in the application form that she had first been introduced to Christianity in 2016 by her sister, and that she had converted to Christianity following her arrival in Türkiye in March 2017, she did not raise any argument in this regard during her interview of 6 July 2017 at the Migration Authority, or during the proceedings before the domestic courts in respect of the rejection of her application for asylum (see paragraphs 2-3 above). Given the discrepancies in the applicant’s statements and the evidence available in the case file, the Court accepts that – as the Government have argued – only on 23 May 2018 (when she sought the annulment of the deportation order before the Trabzon Administrative Court) did the applicant first cite her alleged conversion and the risks to which it would give rise in the event of her forced removal to Iran. She subsequently raised this argument before the Constitutional Court as well (see paragraph 6 above), and submitted to the domestic courts several reports regarding the situation and treatment of religious converts in Iran.

16.  The Court therefore notes that although the applicant did not mention her conversion during the initial asylum proceedings before the Migration Authority, the Turkish authorities were subsequently presented with the applicant’s assertion that she had converted to Christianity after arriving in Türkiye. Accordingly, they were first required to assess whether the applicant’s conversion had been genuine and had attained a certain level of cogency, seriousness, cohesion and importance (see A.A. v. Switzerland, no. 32218/17, § 49, 5 November 2019), and then to assess whether the applicant would be at risk of treatment that contravened Articles 2 and 3 of the Convention were she be returned to Iran (see F.G., cited above, § 144, with further references). In the present case, it is once again not disputed that the applicant raised this argument before the domestic courts albeit at a later stage (see paragraph 15 above). However, this argument was not subjected to an examination by the domestic courts. The Trabzon Administrative Court based its decision solely on the previous findings of the domestic courts that had examined the applicant’s application for asylum; during those court proceedings neither the applicant’s conversion nor the alleged risks associated with it were addressed or considered. Subsequently, the Turkish Constitutional Court summarily rejected the applicant’s arguments and declared the applicant’s individual application inadmissible, without providing pertinent reasoning for that decision.

17.  The Court therefore concludes that the Turkish authorities did not assess whether the applicant had sufficiently demonstrated that her removal to Iran in the context of her conversion merited an assessment, and nor did they carry out a rigorous scrutiny of her argument that she would face a risk of ill-treatment in Iran in the light of that conversion (contrast A. v. Switzerland, no. 60342/16, §§ 38-46, 19 December 201; A.A., cited above, § 48; M.A.M., cited above, §§ 64‑74; J.G. v. the Netherlands, (dec.) no. 70602/14, §§ 41-47, 5 July 2016; and M.H.A. v. the Netherlands, (dec.) no. 61402/15, §§ 25-30, 5 July 2016). The Court reaches this conclusion having considered, in particular, the national courts’ simplistic rejection of the applicant’s arguments.

18.  Accordingly, the Court rejects the objection (which was previously joined to the merits – see paragraph 12 above) lodged by the Government. It follows that there would be a violation of Articles 2 and 3 of the Convention in their procedural aspect if the applicant were to be returned to Iran without an ex nunc assessment by the Turkish authorities of her alleged conversion and the consequences arising therefrom (see, mutatis mutandis, F.G., cited above, §158).

19. The measure indicated to the Government under Rule 39 therefore ceases to have any basis.

20.  The applicant claimed 150,000 euros (EUR) in respect of pecuniary and non‑pecuniary damage and EUR 3,500 in respect of costs and expenses incurred before the domestic courts and for those incurred before the Court.

21.  The Government contested these claims.

22.  The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. In respect of non-pecuniary damage, the Court observes that a violation of Articles 2 or 3 of the Convention has not yet occurred in the present case. It accordingly takes the view that its finding to the effect that the deportation
– if it were to be implemented without a prior ex nunc assessment of the reality of the risks that would allegedly be faced by the applicant in the event of her removal to Iran – would constitute a violation of those Articles, constitutes sufficient just satisfaction (see K.I. v. France, no. 5560/19, § 155, 15 April 2021).

23.  As regards legal fees and other costs and expenses incurred, the Court notes that the applicant has not substantiated that she actually incurred the costs claimed. Accordingly, the Court makes no award under this head (see Nalbant and Others v. Turkey, no. 59914/16, § 57, 3 May 2022).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 21 March 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Sophie Piquet Stéphanie Mourou-Vikström
 Acting Deputy Registrar President