CASE OF N.R. v. TÜRKİYE

FIFTH SECTION

CASE OF N.R. v. TÜRKİYE

(Application no. 5137/19)

JUDGMENT
 

STRASBOURG

23 October 2025

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

In the case of N.R. v. Türkiye,

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

 María Elósegui, President,
 Gilberto Felici,
 Diana Sârcu, judges,
and Sophie Piquet, Acting Deputy Section Registrar,

Having regard to:

the application (no. 5137/19) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 24 January 2019 by a Tajikistani national, N.R. (“the applicant”), who was born in 1976, lives in Istanbul and was represented by Mr E. Kafadar, a lawyer practising in Istanbul;

the decision to give notice of the application to the Turkish Government (“the Government”), represented by their Agent;

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 2 October 2025,

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

SUBJECT MATTER OF THE CASE

1.  The applicant is a Tajik national who fled his country owing to an alleged fear of persecution on account of his religious beliefs, in particular, his affiliation with the Tablighi Jamaat movement, which is banned in Tajikistan. The case concerns his threatened deportation to Tajikistan, and the alleged absence of an effective remedy to challenge the deportation decision under Articles 3 and 13 of the Convention.

2.  The applicant lawfully entered Türkiye on 16 May 2014 and was thereafter granted successive residence permits.

3.  On 26 June 2018 two entry bans were issued against the applicant, referring to general security concerns and his alleged involvement in an illegal organisation’s activities.

4.  On an unspecified date, the Istanbul Public Prosecutor’s Office initiated a criminal investigation in respect of several individuals suspected of affiliation with ISIS. Subsequently, on 26 December 2018, the applicant’s residence was searched, and he was taken into custody on the basis that an ISIS-linked fixed telephone line was allegedly registered to his residence. The applicant’s residence permit was subsequently revoked.

5.  On 2 January 2019 the Istanbul Governor’s Office ordered the applicant’s deportation under section 54(1)(d) of the Foreigners and International Protection Act (Law no. 6458), for constituting a threat to public order, and further ordered his administrative detention at the Edirne Removal Centre.

6.  On 9 January 2019 the applicant was transferred to Istanbul Atatürk Airport for the purpose of deportation to Tajikistan; however, upon informing the accompanying immigration officers of his fear of being subjected to persecution were he to be removed thereto, he was not placed on the aircraft and was returned to the Edirne Removal Centre.

7.  On 14 January 2019 the applicant applied for international protection.

8.  On 17 January 2019 the applicant lodged an individual application with the Turkish Constitutional Court and requested that the deportation proceedings be suspended by an interim measure. He contended that as a devout Muslim, he adhered to the Tablighi Jamaat movement, a non-violent Islamic religious organisation promoting proselytism, proscribed by the Tajik government. He asserted that his membership of that movement had resulted in his imprisonment in Tajikistan between 2009 and 2013, during which time he had been subjected to various forms of torture. Following that imprisonment, he had fled to Türkiye. He asserted that he continued to be involved in the movement’s activities in Istanbul, stating that he frequented the “Mescid-î Selâm” Mosque, where community members regularly gathered. The applicant also alleged that he had been contacted by the Tajik consular authorities, who had conveyed that his return to Tajikistan would result in his imprisonment unless he ceased his affiliation with the Tablighi Jamaat movement. In support of his claims, he referred to reports from various international organisations and governmental bodies detailing the human rights situation in Tajikistan for individuals associated with religious movements. One such report specifically mentioned his detention in Tajikistan on such grounds at the relevant time. The applicant further submitted that the remedy of bringing an action for annulment before the administrative courts was ineffective, as such proceedings lacked automatic suspensive effect.

9.  On 30 January 2019 the Constitutional Court declared the applicant’s individual application inadmissible as being manifestly ill-founded on the grounds that he had failed to substantiate any personal circumstances and individual risk regarding his allegations.

10.  On 24 January 2019 the applicant lodged an application with the Court and sought an interim measure to suspend his removal. The Court granted this on 25 January 2019 for a specific period, and later extended it until further notice.

11.  On 28 January 2019 the applicant brought an action in the Istanbul Administrative Court for the annulment of the deportation order on substantially the same grounds as he had previously raised before the Constitutional Court. He also requested an order for a stay of execution of the deportation order. On 16 May 2019 that request was refused.

12.  On 23 May 2019 the applicant’s request for international protection was rejected, the authorities finding that his asserted fear of persecution was not credible owing to his failure to submit adequate and reliable information. The decision further emphasised that he had only sought asylum after the deportation order in respect of him had been issued, notwithstanding his extended presence in Türkiye preceding that order.

13.  On 16 July 2019 the Istanbul First Administrative Court annulled the deportation order. It reasoned that the criminal investigation initiated in respect of the applicant had been discontinued by the public prosecutor on account of an absence of credible evidence. Furthermore, the entry bans issued in respect of the applicant were found to have been requested by the Russian authorities through Interpol for the purposes of identification and ascertaining the applicant’s whereabouts, and not on the basis of any other criminal suspicion.

14.  On 28 December 2021 the Anti-Terrorism Branch of the Istanbul Provincial Security Directorate issued a warrant for the applicant’s arrest, following allegations by the Tajik authorities that he had been identified as having committed a terrorism offence in Tajikistan. The applicant was thereafter taken into custody.

15.  On 30 December 2021 a second deportation order was issued in respect of the applicant on the same grounds as the previous order, and the applicant was consequently placed under administrative detention.

16.  On 5 January 2022 the applicant instituted proceedings seeking the annulment of the deportation order. Subsequently, on 21 June 2022 the Istanbul First Administrative Court annulled the deportation order, finding no evidence in the case file to substantiate the argument that the applicant posed a threat to public security and order, and noting the absence of any pending criminal investigations in respect of him.

17.  On an unspecified date, the applicant lodged an application for a humanitarian residence permit, which was subsequently rejected. The applicant instituted legal proceedings seeking the annulment of the decision to reject that request. On 30 May 2024 the Ankara First Administrative Court ruled in the applicant’s favour, reasoning that the prior deportation orders had been set aside and that the applicant was precluded from applying for a residence permit from an alternative category.

18.  According to the most recent information submitted by the parties, the applicant is awaiting the outcome of his application for a humanitarian residence permit. He remains at liberty and resides in Istanbul.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

19.  A description of the provisions of Law no. 6458 that govern the procedures to be followed when removing foreign nationals from Türkiye and the judicial review of removal orders can be found in J.A. and A.A. v. Türkiye (no. 80206/17, § 21, 6 February 2024).

20.  In addition, as of 8 March 2018, Emergency Decree-Law no. 676 amended section 53(3) of Law no. 6458 by introducing an exception that permitted the deportation of foreign nationals subject to deportation orders issued under section 54(1)(b), (d) or (k), even during any appeal proceedings that may have been lodged. On 30 May 2019 the Constitutional Court, sitting in plenary session, delivered a pilot decision addressing those exceptions in the case of Y.T. (no. 2016/22418). The court identified a structural problem arising from that legislative amendment, which was evidenced by numerous similar applications, and constituted a violation of the constitutional right to an effective remedy. It ruled that in order to eliminate the structural problem and to prevent future similar applications the legislative authority, while retaining discretion in determining the appropriate solution, was required to review and amend the legal provisions giving rise to that violation. The exception was later repealed by Law no. 7196 on 24 December 2019 and the automatic suspensive effect of the proceedings before administrative courts in relation to all appeals brought against deportation orders was fully restored.

THE COURT’S ASSESSMENT

21.  The Court reiterates that in cases where applicants have faced expulsion or extradition, it has consistently held that an applicant cannot claim to be the “victim” of a measure which is not enforceable. It has adopted the same stance in cases where execution of a deportation or extradition order has been stayed indefinitely or otherwise deprived of legal effect, and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts (see Babajanov v. Turkey, no. 49867/08, § 71, 10 May 2016, and Kebe and Others v. Ukraine, no. 12552/12, § 86, 12 January 2017).

22.  The parties have not disputed that the orders to deport the applicant to Tajikistan were annulled by the domestic courts (see paragraphs 13 and 16 above).

23.  In the light of the foregoing considerations, the Court accepts that the applicant can no longer claim to be a “victim” within the meaning of Article 34 of the Convention in relation to his complaint under Article 3 of the Convention arising from his threatened removal to Tajikistan (see, mutatis mutandis, A.D. and Others v. Turkey, no. 22681/09, §§ 81-84, 22 July 2014). It follows that this part of the application is incompatible ratione personae with the provisions of the Convention and must therefore be rejected in accordance with Article 35 § 4.

24.  The Court nevertheless stresses that the above finding is without prejudice to any examination that it might carry out regarding the implementation of any new removal order in the future, and does not prevent the applicant from lodging a new application with the Court or 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 (compare Babajanov, cited above, § 83, with further references therein).

25.  The applicant submitted that the lack of automatic suspensive effect under domestic law denied him an effective remedy concerning his grievance regarding his threatened removal to Tajikistan, without due consideration given to the risk of ill-treatment or persecution to which he alleged he would be exposed.

26.  The Government submitted that the applicant had failed to duly exhaust domestic remedies by applying to the Constitutional Court without first having had recourse to the administrative courts. Furthermore, they contended that automatic suspensive effect had been reinstated in domestic law following the Constitutional Court’s pilot judgment in Y.T. (see paragraph 20 above).

27.  The Court notes at the outset that the fact that a substantive claim is declared inadmissible does not necessarily exclude the operation of Article 13 (see Asalya v. Turkey, no. 43875/09, § 97, 15 April 2014). Indeed, in numerous cases concerning the threatened removal of foreigners, the Court has found complaints under Article 13 admissible, even though it had declared the substantive claims under Articles 2 and/or 3 inadmissible as the applicants had lost their victim status owing to the fact that they no longer faced a risk of expulsion from the respondent State (see, mutatis mutandis, De Souza Ribeiro v. France [GC], no. 22689/07, §§ 84-100, ECHR 2012; Gebremedhin [Gaberamadhien] v. France, no. 25389/05, § 56, ECHR 2007‑II; I.M. v. France, no. 9152/09, §§ 95-103, 2 February 2012; M.A. v. Cyprus, no. 41872/10, §§ 109-10 and §§ 115-19, 23 July 2013; and A.D. and Others v. Turkey, cited above, §§ 81-83 and § 88). Accordingly, if it can be demonstrated that the applicant had “arguable” claims under Articles 2 or 3 during the period in which he or she was under an imminent threat of removal, a subsequent loss of victim status under the substantive claim would not automatically and retrospectively dispense the State from its obligations under Article 13 of the Convention.

28.  It therefore falls upon the Court to determine whether the applicant’s grievances under Article 3 in relation to his threatened deportation to Tajikistan at the material time raised “arguable” issues that merited an examination by the domestic authorities.

29.  Before the domestic courts the applicant claimed to have been imprisoned and tortured in Tajikistan (between 2009 and 2013) on account of his being a devout Muslim and his affiliation to the proscribed Tablighi Jamaat movement. Following his flight to Türkiye, he asserted that he had continued to be involved in that movement in Istanbul and alleged that he had been contacted by the Tajik consular authorities, who had warned him that he would be imprisoned on his return should he not leave the movement. The applicant referred to reports from international and governmental bodies on the human rights situation in Tajikistan concerning members of religious movements, including specific mention of his past detention.

30.  The Court has previously established that individuals whose return is sought by the Tajik authorities on charges of religiously or politically motivated crimes constitute a vulnerable group facing a real risk of treatment contrary to Article 3 of the Convention in the event of their removal to Tajikistan (see A.Y. and Others v. Russia (dec.), no. 29958/20, § 7, 17 January 2023 and the case-law cited therein).

31.  In the light of the foregoing considerations, the Court finds that the applicant’s claims under Article 3 raised an issue of substance requiring an examination by the domestic authorities. Consequently, it holds that that complaint was sufficiently arguable to warrant the protection afforded by Article 13 in respect of the compatibility of the applicant’s intended deportation to Tajikistan with Article 3 (see, for a similar approach, Diallo v. the Czech Republic, no. 20493/07, §§ 59-71, 23 June 2011). The Court therefore considers that the facts constituting the alleged violation of Article 13 had already materialised before the applicant’s removal ceased to be imminent, and that it was only suspended because of the Court’s indication of the Rule 39 measure, and not, at least initially, as a result of any domestic remedy. The Government have also acknowledged that the applicant’s stay in Türkiye was initially permitted because of the interim measure indicated by the Court, yet the State authorities have neither acknowledged nor redressed his grievances under Article 13 (see M.A. v. Cyprus, cited above, § 120).

32.  Lastly, the Government’s objection that the applicant had failed to exhaust domestic remedies as he had not raised his complaints before the Istanbul Administrative Court prior to lodging an application with the Constitutional Court (see paragraph 26 above) is closely linked to the substance of the complaint under Article 13 (for a similar approach, see Singh and Others v. Belgium, no. 33210/11, §§ 57-61, 2 October 2012). The Court therefore joins that question to its examination of the complaint on the merits.

33.  In the light of the foregoing, it cannot be said that the applicant can no longer claim to be a victim of the alleged violation of Article 13 taken in conjunction with Article 3 of the Convention. Consequently, and given that this complaint is not inadmissible on any other grounds, it must be declared admissible.

34.  In cases concerning expulsion or extradition it is a firmly embedded principle in the Court’s case-law under Article 13 taken together with Articles 2 and 3 of the Convention that the notion of an effective remedy in such cases requires (i) independent and rigorous scrutiny of a claim that there exist substantial grounds for believing that there is a real risk of treatment contrary to Articles 2 and 3, and (ii) a remedy with automatic suspensive effect (see De Souza Ribeiro, cited above, § 82, and A.D. and Others v. Turkey, cited above, § 95). The same applies when considering the question of the effectiveness of remedies for the purposes of Article 35 § 1 of the Convention in asylum cases (see S.H. v. Malta, no. 37241/21, §§ 52-54, 20 December 2022).

35.  The Court observes that, in the instant case, the applicant was subject to deportation orders issued pursuant to section 54(1)(d) of Law No. 6458 on the basis that he constituted a threat to public order and security (see paragraphs 5 and 15 above). At the material time, the lodging of an action for the setting aside of a deportation order issued under that provision did not have suspensive effect, meaning that its execution was not automatically stayed pending its examination by the administrative courts (see paragraph 20 above). Given the lack of the automatic suspensive effect required by Article 13 of the Convention, the applicant cannot be faulted for not having initially pursued judicial review proceedings before the administrative courts as suggested by the Government (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 396, ECHR 2011; M.K. and Others v. Poland, nos. 40503/17 and 2 others, §§ 145-48, 23 July 2020; and Sherov and Others v. Poland, nos. 54029/17 and 3 others, § 49, 4 April 2024). Therefore, the Court cannot but find that that remedy fell short of the second effectiveness requirement. That consideration is not altered by the fact that it was possible to seek an interim measure from the Constitutional Court, as such a request does not itself have an automatic suspensive effect either (compare A.M. v. the Netherlands, no. 29094/09, §§ 59-71, 5 July 2016, and S.H. v. Malta, cited above, §§ 47-54). Furthermore, the Constitutional Court did not grant the requested interim measure and eventually declared the application inadmissible, without examining the substance of the applicant’s claims concerning his fear ill-treatment (see paragraph 9 above). Accordingly, the Court observes that despite the existence of an arguable claim put forward by the applicant, it was not examined by the domestic authorities and that, at the material time, there were no remedies with automatic suspensive effect available to the applicant in respect of his threatened removal to Tajikistan.

36.  The Court commends the Constitutional Court for addressing the structural problem, brought about by Legislative Decree no. 676, by successfully applying its pilot judgment procedure in the Y.T. case and notes that as of 24 December 2019, the automatic suspensive effect of the appeal procedure before administrative courts has been fully restored (see paragraph 20 above). Despite those positive developments, it nevertheless remains that at the material time when the applicant’s deportation orders were under review by the domestic courts, that remedy lacked automatic suspensive effect and was therefore not in compliance with the effectiveness requirement under Article 13.

37.  The Court therefore concludes that there has been a violation of Article 13 of the Convention.

38.  The measure indicated to the Government under Rule 39 ceases to have any basis. However, the applicant may submit a new request for interim measure to the Court should he deem it necessary in case his administrative situation changes (see paragraph 24 above).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

39.  The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage and EUR 5,660 in respect of costs and expenses incurred before the Court.

40.  The Government did not submit comments concerning the applicant’s claims for just satisfaction.

41.  The Court can make an award of just satisfaction only if it has found a violation of the Convention. Accordingly, it will examine the claim only in so far as it concerns the violation of the applicant’s right to an “effective remedy” in respect of his complaint under Article 3, as provided for in Article 13 of the Convention, which it has found in the present case. In line with its practice in similar cases, the Court considers that the finding of a violation of Article 13 constitutes sufficient just satisfaction for any non-pecuniary damage sustained by the applicant (see, for example, Kebe and Others, cited above, § 112, and the case-law cited therein).

42.  An applicant is further entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court requires itemised bills and invoices that are sufficiently detailed to enable it to determine to what extent those requirements have been met. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 3,000 covering costs and expenses under all heads (see Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, § 429, 26 September 2023 and the cases cited therein).

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 23 October 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Sophie Piquet María Elósegui
 Acting Deputy Registrar President