Published on 7 June 2021
SECOND SECTION
Applications nos. 53614/19 and 56562/19
Dana EBRAHIMNEZHAD against Turkey
and Salih Braim Ahmed AHMED against Turkey
lodged on 8 October 2019 and 25 October 2019 respectively
communicated on 17 May 2021
SUBJECT MATTER OF THE CASE
The applicants are Iranian and Iraqi nationals, respectively. Following their entry into Turkey by lawful means, they crossed the border to Greece illegally. Upon being apprehended in Greece, they were handed over to the Turkish authorities. On 7 November 2016 the provincial Directorate of Migration Management ordered the applicants’ deportation and their administrative detention pending the deportation procedure. On 27 November 2017 the Osmaniye Magistrate’s Court dismissed both applicants’ objections against their administrative detention, which it deemed to be lawful. However, in the meantime, the applicant in application no. 53614/19 had been deported to Iran, and the other applicant had been sent back to Iraq, allegedly of his own volition.
The applicants subsequently brought individual applications before the Constitutional Court to complain, inter alia, about the unlawfulness of their administrative detention and the absence of any effective remedies to provide redress in that respect. Referring to its recent judgment in B.T. (no. 2014/15769, 30 November 2017), on 16 April and 2 September 2019, respectively, the Constitutional Court declared the applicants’ complaints inadmissible for failure to exhaust the action for a full remedy (tam yargı davası) before administrative courts, which could in theory provide an effective remedy. It stressed that since the applicants’ detention had ended with the execution of the deportation order and the voluntary return to the country of origin, respectively, they could lodge their compensation claims arising from the alleged unlawfulness of their detention directly with the administrative courts.
Relying on Articles 3 and 6 of the Convention, the applicants complained that their administrative detention had not been ordered by the competent authority designated by the Foreigners and International Protection Act (Law no. 6458) and that the Osmaniye Magistrate’s Court had not examined their objections against their detention in accordance with the requirements of that law. The applicants further complained under Article 13 that they had had no effective remedies in respect of those complaints, and that the action for a full remedy referred to by the Constitutional Court was not one that was capable of providing them with redress, as evidenced by the many unfavourable decisions delivered by the administrative courts in this regard.
QUESTIONS TO THE PARTIES
1. Did the applicants duly exhaust the remedies available in domestic law in respect of their complaints, as required by Article 35 § 1? In particular, bearing in mind that their detention had been declared to be lawful by the Osmaniye Magistrates’ Court, did the administrative courts have the competence to rule afresh on the lawfulness of such detention, as well as on the effectiveness of the review carried out by the magistrate’s court, within the context of an action for full remedy and to offer redress as applicable?
The parties are invited to respond to this question with reference to the Constitutional Court’s findings in paragraph 72 of the B.T. case.
2. Did the applicants’ detention comply with the requirements of Article 5 § 1 of the Convention? In particular;
(a) When were the applicants handed over to the Turkish authorities?
(b) On what date, and by which State authority, were the decisions for the applicants’ administrative detention taken? Did the Osmaniye Provincial Directorate of Migration Management have the authority to issue detention orders on behalf the Osmaniye governor’s office? If so, on what legal basis?
3. Did the applicants have at their disposal an effective remedy by which they could challenge the lawfulness of their deprivation of liberty, as required by Article 5 § 4 of the Convention? In particular, did the objection procedure set out under Law no. 6458 function effectively in the circumstances of the applicants’ case?
The Government are requested to submit all documents relating to the applicant’s detention and release.
Full & Egal Universal Law Academy