ECtHR - M.B. and others v Turkey, Application no. 36009/08, 15 September 2010

Facts:

The applicants fled Iran to Turkey as the first applicant feared for his and his family’s life after having aided political dissidents in Iran. The applicants’ request for temporary residence in Hakkari was dismissed on 2 August 2002 by the domestic authorities since the UNHCR had refused to recognise the applicants’ refugee status. The applicants moved to Istanbul. In 2002, they converted to Christianity and began working for the Gedik Pasa Armenian Protestant Church. The third and fourth applicants were not accepted to study at the Iranian Consulate School in Istanbul because the Iranian authorities were aware of their religious faith. In 2008 the applicants were recognised as refugees by the UNHCR in Ankara; the UNHCR found that the first applicant’s fear of persecution based on his conversion to Christianity  was well founded. The applicants moved back to Hakkari on the instructions of the UNHCR to legalise their status in Turkey. On 14 May 2008 the applicants applied for residence permits. Statements were taken by the Hakkri police and it was found that the first and fourth applicants had travelled to Iran during their stay in Turkey between 2002 and 2008. The applicants maintained that they had done so illegally with falsfied Iranian passports to take Bibles in Farsi to Iran. On 30 July 2008 the applicants were requested to appear at the Hakkari police headquarters and told that they would be deported to Iran that day. They were deported that day.

On 31 July 2008 the applicants re-entered Turkey irregularly and were once again interviewed by the UNHCR regarding the circumstances of their deportation and re-entry into Turkey. The UNHCR found that the applicants’ refugee status continued to be valid. In August 2008 the applicants’ representative lodged an application with the General Police Headquarters for the suspension of the deportation decision and the grant of residence permits, having regard to the interim measure indicated under Rule 39 and the Rules of the Court. He received no response to his application and the applicants are currently in hiding in Ankara.

Decision & reasoning:

After examining the complaint from the standpoint of Article 3 (Abdolkhani and Karimnia v Turkey) the Court rejects the Government’s objections (that the applicants failed to exhaust domestic remedies available to them within the meaning of Article 35§ 1 of the Convention) and finds that the applicants were deprived of the opportunity to apply to the administrative and judicial authorities for annulment of the decision to deport them to Iran prior to their actual deportation.

After examining domestic law, the Court reiterates that the applicants were not required to apply to the administrative courts in order to exhaust such domestic remedies, within the meaning of Article 35 § 1 of the Convention. The Court therefore decides that this part of the application is not manifestly ill-founded within the meaning of Article 35§ 3 of the Convention.

The Court proceeds to assess the existence of any risk in Iran faced by the applicants if they were now to be deported (Albokhani and Karimnia). In the light of the UNHCR’s assessment and decision to recognise the applicants as refugees (Jabari v Turkey), the Court is not persuaded that the applicants’ claims regarding the risks that they might face in Iran on the basis of their religion were meaningfully examined by the domestic authorities before their deportation. Thus the Court finds that there are substantial grounds for accepting that the applicants face the risk of a violation of their rights under Article 3 if returned to Iran. Therefore, the Court finds that there is a potential violation of Article 3 of the Convention if the applicants were to be removed to Iran.

The Court states that it had already found a violation of Article 13 in the case of Abdolkhani and Karimnia, which raised similar issues. The Court concludes that the applicants were not afforded an effective and accessible remedy (not being served with the deportation order) in relation to their complaints under Article 3 of the Convention. Thus the Court decides that there has been an actual violation of Article 13 of the Convention.

With regards to the alleged violation of Article 34 of the Convention (that Article 34 will be breached if the authorities of a Contracting State fail to take all the steps which could reasonably have been taken in order to comply with the measure indicated by the Court, see Paladi v Moldova) the Court finds that the deportation in question took place only thirteen minutes after the Government were informed of the application of the Rule 39 measure. The Court concludes that it has not been established that the Government had failed to demonstrate the necessary diligence in complying with the measure indicated by the Court; Thus it was concluded that there has been no violation of Article 34 of the Convention.

With regards to the applicants’ further complaints under Articles 3, 5 and 6 of the Convention; that their detention had not been formally recorded, that they had not been informed of the reasons for their arrest and that they have been subject to ill-treatment during their detention: The Court concluded that this part of the application had been introduced out of time and therefore rejected it in accordance with Article 35 § § 1 and 4 of the Convention.

Outcome:

The Court finds that there is a potential violation of Article 3 and an actual violation of Article 13.

The Court found the Article 5 and 6 complaint inadmissible.

The Court did not find a violation of Article 34.

Observations/comments:

This case summary was written by Elinor Gibson, GDL student at BPP University.