Information Note on the Court’s case-law 230
June 2019
Ozdil and Others v. the Republic of Moldova - 42305/18
Judgment 11.6.2019 [Section II]
Article 5
Article 5-1
Lawful arrest or detention
Extra-legal transfer of persons to their State of origin, circumventing domestic and international law: violation
Article 8
Article 8-1
Respect for family life
Respect for private life
Extra-legal transfer of persons to their State of origin, circumventing domestic and international law: violation
Facts – The applicants, Turkish nationals, were teachers in a private chain of schools in Moldova. Following public statements by the Turkish authorities describing the schools as related to the Fetullah Gülen movement, allegedly responsible for the attempted coup in Turkey in 2016, and the teachers as terrorists, the applicants applied for asylum. Before they received decisions, they were arrested and transferred, the same morning, by chartered plane to Turkey. Their families received the rejections of their asylum claims on grounds of national security days later and only subsequently learned that the applicants were in Turkey.
Law
(a) Admissibility – The applicants had been transferred from Moldova to Turkey on the morning of 6 September 2018 by members of the secret services of Moldova and Turkey. It had not been demonstrated by the Government that the applicants had, at that point, been notified of any decisions in their cases, either as to their application for asylum or of a decision on their extradition. Therefore, the Court did not accept that in the particular circumstances of their case recourse to the domestic courts could have been considered, as argued by the Government, an effective remedy to be exhausted after their transfer to Turkey.
(b) Merits
Article 5 § 1: The authors of the Convention had reinforced the individual’s protection against arbitrary deprivation of his or her liberty by guaranteeing a corpus of substantive rights which were intended to minimise the risks of arbitrariness, by allowing the act of deprivation of liberty to be amenable to independent judicial scrutiny and by securing the accountability of the authorities for that act. Although the investigation of terrorist offences undoubtedly presented the authorities with special problems, that did not mean that they had carte blanche under Article 5 to arrest suspects and detain them in police custody, free from effective control by the domestic courts and, in the final instance, by the Convention’s supervisory institutions, whenever they considered that there had been a terrorist offence.
The Moldovan secret service had issued several press statements on 6 September 2018 confirming that it had prepared and carried out the operation. According to the same press statements the operation had been conducted in cooperation with the secret services of other countries. The involvement of the Turkish secret services had not been disputed by the Government in their observations. It appeared that the Moldovan authorities had deliberately transferred the applicants directly to the Turkish authorities and the material in the case file also indicated that the joint operation of the Moldovan and Turkish secret services had been prepared well in advance of 6 September 2018. The facts of the case also indicated that the operation had been conceived and organised in such a manner as to take the applicants by surprise so that they would have had no time and possibility to defend themselves.
The asylum decisions were dated 4 and 5 September 2018. The trustworthiness of those dates was certainly a matter of concern and had to be treated with caution in view of the statements made by the head of the Moldovan Bureau for Migration and Asylum on 7 September 2018 to the effect that she had not been aware of what had happened to the applicants and the Bureau had not been involved in the matter.
Viewing the circumstances of the case as a whole and having regard to the volume of evidence pointing in the same direction and to the speed with which the Moldovan authorities had acted, the Court concluded that the applicants’ deprivation of liberty on 6 September 2018 had been neither lawful nor necessary within the meaning of Article 5 § 1 (f), nor devoid of arbitrariness. Depriving the applicants of their liberty in that way had amounted to an extra-legal transfer of persons from the territory of the respondent State to Turkey which had circumvented all guarantees offered to them by domestic and international law.
Conclusion: violation (unanimously).
Article 8: The applicants had been lawfully residing for long periods of time in Moldova, had had employment and had started families, some of them with Moldovan nationals. Their exclusion from Moldovan territory had put an end to their integration into Moldovan society and radically disrupted their private and family lives.
A person subject to a measure based on national security considerations could not be deprived of all guarantees against arbitrariness. He or she had to, among other things, be able to have the measure in question scrutinised by an independent and impartial body competent to review all the relevant questions of fact and law, in order to determine the lawfulness of the measure and censure a possible abuse by the authorities. Before that review body the person concerned had to have the benefit of adversarial proceedings in order to present his or her point of view and refute the arguments of the authorities.
Moldovan law contained norms regulating expulsion and extradition. Nevertheless, the applicants had been removed from Moldova by way of an extra-legal transfer, circumventing the guarantees offered by domestic and international law. Since that forcible transfer, which had led to a radical disruption of the applicants’ private and family lives, had lacked sufficient legal basis, it was not in “accordance with the law”.
No proceedings had been brought against the applicants for participating in the commission of any offence in Moldova or any other country. Apart from the general grounds mentioned above, the authorities had not provided the applicants with any other details. The Court attached weight to the fact that the domestic courts had refused to examine the applicants’ court actions against the decisions rejecting their asylum applications and declaring them undesirable persons on very formalistic grounds. Had it been otherwise, the domestic courts would in any event have been unable to examine the real motives behind the expulsion because domestic law did not provide that the note of the secret service which had served as grounds for the applicants’ expulsion had to be made available to the judges.
Conclusion: violation (unanimously).
Article 41: EUR 25,000 each in respect of non-pecuniary damage.
(See also Čonka v. Belgium, 51564/99, 5 February 2002, Information Note 39; De Souza Ribeiro v. France [GC], 22689/07, 13 December 2012, Information Note 158; El-Masri v. the former Yugoslav Republic of Macedonia [GC], 39630/09, 13 December 2012, Information Note 158; and Al-Nashif v. Bulgaria, 50963/99, 20 June 2002, Information Note 43)
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This summary by the Registry does not bind the Court.
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