CASE OF KESHMIRI v. TURKEY (No. 2)
Violation of Article 5 - Right to liberty and security (Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)
András Sajó;Françoise Tulkens;Helen Keller;Paulo Pinto De Albuquerque
3. The applicant was born in 1958 and lives in Kırklareli. 4. In 1985 the applicant joined the People’s Mojahedin Organisation of Iran (“the PMOI”). 5. In 1986 he arrived in Iraq. He lived in the Al-Ashraf camp, where PMOI members were accommodated in Iraq, until he left the organisation in 2003. After leaving the PMOI he went to the Temporary Interview and Protection Facility (“TIPF”), a camp created by the United States forces in Iraq. This facility was subsequently named the Ashraf Refugee Camp (“ARC”). 6. On 5 May 2006, after being interviewed, the applicant was recognised as a refugee by the United Nations High Commissioner for Refugees (“the UNHCR”) Headquarters in Geneva during his stay in Iraq. 7. On an unspecified date the applicant arrived in Turkey on a false passport. 8. On 1 June 2008 the applicant was arrested by the Turkish security forces while attempting to leave for the island of Kos, Greece, from the port of Bodrum, on a false passport. 9. On an unspecified date the UNHCR branch office asked the national authorities to grant the applicant access to the asylum procedure in Turkey. This request was refused in view of the fact that the applicant’s presence in Turkey constituted a threat to national security given his membership of the PMOI. 10. On 1 August 2008 the applicant was transferred to the city of Van in eastern Turkey, apparently with a view to his deportation to Iran. 11. On 1 August 2008 the applicant’s representative lodged an application with the Court, requesting it to stop the applicant’s deportation to Iran and arguing under Articles 2 and 3 of the Convention that his removal to Iran would expose him to a real risk of ill-treatment (application no. 36370/08). 12. On the same day, the President of the Second Section decided to indicate to the Government of Turkey, under Rule 39 of the Rules of Court, that the applicant should not be deported to Iran until further notice. 13. With reference to the interim measure under Rule 39 of the Rules of Court, the deportation proceedings were suspended and on 3 August 2008 the applicant was transferred to the Kırklareli Foreigners’ Admission and Accommodation Centre. 14. On 13 April 2010 the Second Section of the Court found that there would be a violation of Article 3 of the Convention if the applicant were to be removed to Iran or Iraq (see Keshmiri v. Turkey, no. 36370/08, § 28, 13 April 2010). 15. On 25 May 2010 the General Security Directorate of the Ministry of the Interior (“the Ministry”) decided that the applicant was to be released from the Kırklareli Foreigners’ Admission and Accommodation Centre and issued with a temporary residence permit in Kırklareli. On 26 May 2010 the applicant was released accordingly. He is currently living in Kırklareli. 16. In the meantime, on 28 August 2009 a lawyer registered with the Istanbul Bar Association, Mr A. Yılmaz, had petitioned the Ministry for the applicant’s release from the Kırklareli Foreigners’ Admission and Accommodation Centre. 17. Upon the administrative authorities’ failure to reply within sixty days, which is considered to be a tacit refusal of the request under section 10 of the Administrative Procedure Act (Law no. 2577 of 6 January 1982), on 25 November 2009 Mr A. Yılmaz brought an action before the Ankara Administrative Court. He requested that the court quash the decision of the Ministry not to release his client, which decision infringed his right to liberty as a recognised refugee, and order a stay of execution of that decision pending the proceedings. 18. On 13 January 2010 the Ankara Administrative Court rejected the request for a stay of execution. Mr A. Yılmaz appealed against that decision. 19. On 10 February 2010 the Ankara Regional Administrative Court declined to examine the appeal request. 20. On 16 March 2010 the Ankara Administrative Court dismissed the applicant’s case. It held at the outset that the relevant legislation required the deportation of persons in the applicant’s position, that is, persons who had entered Turkey illegally and whose presence in the country posed a danger to public order and security. If, however, deportation had become unfeasible for some reason, then the individuals concerned would be accommodated at a place designated by the Ministry until such time as the deportation proceedings could be finalised. The Administrative Court noted that in the instant case the applicant’s deportation had come to a halt following the interim measure indicated by the European Court of Human Rights and he had therefore been placed in an accommodation centre in accordance with the law. By refusing his release, the administration had thus acted in accordance with the applicable laws. The administrative court also noted that granting temporary residence permits to persons awaiting deportation would render their monitoring and control very difficult. 21. The applicant appealed against the judgment of the Ankara Administrative Court. He claimed that he had been held at the Kırklareli Foreigners’ Admission and Accommodation Centre since 3 August 2008 against his will and that this deprivation of liberty had no basis in domestic law and lacked any legal safeguards. He moreover argued that he had not been released from detention despite the judgment of the European Court of Human Rights, which had ruled that his deportation would constitute a violation of Article 3 of the Convention. He also claimed that the administration had failed to submit any evidence in support of its allegation that he posed a threat to public order and security. 22. It appears that the appeal proceedings are still pending before the Supreme Administrative Court. However, in the meantime, the applicant was released from the Kırklareli Foreigners’ Admission and Accommodation Centre on 26 May 2010 upon the order of the Ministry (see paragraph 15 above). 23. A description of the relevant domestic law and practice, as well as the international material, may be found in the case of Abdolkhani and Karimnia v. Turkey (no. 30471/08, §§ 29-51, 22 September 2009).