Information Note on the Court’s case-law 20
July 2000
Jabari v. Turkey - 40035/98
Judgment 11.7.2000 [Section IV]
Article 3
Expulsion
Expulsion to Iran - risk of stoning for adultery: violation
Facts: The applicant, an Iranian national, had a relationship, involving sexual relations, with a married man in Iran. She was arrested as she was walking with the man in the street and was submitted to a virginity examination. After being released, she fled to Turkey. Her intention was to fly to Canada via France with a forged passport. However, on her arrival in Paris, she was intercepted by the French police, who sent her back to Turkey after having established that she was in possession of a forged passport. She was arrested at Istanbul airport for having entered the country with a forged passport and her deportation was ordered. She lodged an asylum application which was rejected as being outwith the 5-day time limit. She was later granted refugee status by the UNHCR but her applications against the deportation order and to obtain a stay of execution were nevertheless rejected by the Administrative Court. A residence permit was granted pending the outcome of the Convention application. The applicant maintains that stoning to death, flogging and whipping are penalties prescribed by Iranian law for the offence of adultery
Law: Article 3 – The Court was not persuaded that the Turkish authorities had conducted any meaningful assessment of the applicant’s claim, including its arguability. Her failure to comply with the 5-day time limit denied her any scrutiny of the factual basis of her fears. The automatic and mechanical application of such a short time limit for an asylum application must be considered at variance with the protection of the fundamental value embodied in Article 3. The Administrative Court limited itself to the issue of the formal legality of the deportation order; the UNCHR, on the hand, interviewed the applicant and was able to assess her credibility, and due weight must be given to its conclusions. Moreover, the Court was not persuaded that the situation in Iran had evolved to the extent that adulterous behaviour is no longer considered a reprehensible affront to Islamic law: stoning for adultery remains on the statute book. It is substantiated that there is a real risk of the applicant being subjected to treatment contrary to Article 3 if deported.
Conclusion: violation (unanimously).
Article 13 – There was no assessment by the domestic authorities of the risk claimed by the applicant and there was no appeal against the refusal to consider her asylum request. Although she could challenge the lawfulness of the deportation order, this did not entitle her to either a suspension of its implementation or an examination of the merits of her claim. Given the irreversible nature of the harm that might occur, the notion of an effective remedy in such circumstances requires independent and rigorous scrutiny of such a claim and the possibility of having the measure suspended. Since the Administrative Court failed to provide any of these safeguards, the judicial review proceedings relied on by the Government did not satisfy the requirements of Article 13.
Conclusion: violation (unanimously).
Article 41 - The Court considered that the finding of a potential violation of Article 3 and the finding of a violation of Article 13 constituted sufficient just satisfaction in respect of non-pecuniary damage.
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This summary by the Registry does not bind the Court.
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