Published on 17 June 2024
SECOND SECTION
Application no. 14436/21
Kenneth Arthur WIEST
against Türkiye
lodged on 12 March 2021
communicated on 27 May 2024
SUBJECT MATTER OF THE CASE
The applicant is a citizen of the United States of America (“the USA”) and a member of the Protestant Church. He has been legally residing in Türkiye for over thirty years and was in possession of a valid residence permit at the material time. On 11 June 2019 he left Türkiye to travel to the USA. Subsequently, he was denied re-entry to Türkiye because of a travel restriction imposed on him (N-82 ‘istizan’ tahdit kodu), which made the applicant’s admission into the country conditional on a prior approval by the Ministry of Interior. This restriction was issued on the basis of undisclosed information obtained from the National Intelligence Agency (Milli İstihbarat Teşkilatı).
The applicant’s request for obtaining the prior authorization was rejected and his attempts to challenge the re-entry restriction before the domestic courts were unsuccessful. His representative was not allowed to access the intelligence report which served as the basis of the impugned measure on the grounds that it was classified as confidential information. The domestic courts rejected the applicant’s claims ruling that the matter fell within the public-authority prerogatives of the State and did not consider the implications for the applicant’s private and family life. In its summary decision of 27 January 2021, the Turkish Constitutional Court dismissed the applicant’s claims as being unsubstantiated.
The applicant complains under Article 8 of the Convention that the travel restriction imposed on him disrupted his long-established family life in Türkiye. He further complains under Article 13 that the domestic authorities had not submitted any evidence of a threat posed by him to national security and that the domestic courts had not given him a chance to refute these allegations. He finally invokes Article 6 alleging that he was not allowed access to the documents that had served as the basis for the travel restriction and that the domestic courts had failed to provide adequate reasoning in the examination of his claims.
QUESTIONS TO THE PARTIES
1. Did the re-entry restriction imposed on the applicant constitute an interference with his right to respect for family life within the meaning of Article 8 § 1 of the Convention? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2 of the Convention (see, mutatis mutandis, Üner v. the Netherlands [GC], no. 46410/99, §§ 54-67, ECHR 2006-XII; Maslov v. Austria [GC], no. 1638/03, §§ 61-101, ECHR 2008; Nolan and K. v. Russia, no. 2512/04, §§ 80-89, 12 February 2009; and Dzhurayev and Shalkova v. Russia, no. 1056/15, §§ 30-45, 25 October 2016)?
2. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 8, as required by Article 13 of the Convention (see, for example, Liu v. Russia (no. 2), no. 29157/09, § 99, 26 July 2011)?
3. (a) What was the scope of review of the Ankara First Administrative Court and the Turkish Constitutional Court which examined the applicant’s complaints in connection with the re-entry restriction? Was the judicial review limited to ascertaining that the restriction had been imposed in accordance with the procedure prescribed by law and, in particular, that the materials which formed the basis for the restriction had been issued within the administrative competence of the National Intelligence Agency? In this respect, did the courts conduct a balancing exercise between the need to protect national security and the applicant’s right to respect for family life?
(b) Were the classified materials from the National Intelligence Agency disclosed to the applicant or his representative? Was the applicant given a fair and reasonable opportunity to refute the facts and findings contained in those materials? In particular, did the courts examine other pieces of evidence to confirm or refute the allegations against the applicant?