CASE OF BABAJANOV v. TURKEY
Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Substantive aspect) (Iran);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-2 - Prompt information);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković
10. The applicant was born in 1975 and lives in Turkey. 11. In 1999 the applicant fled from Uzbekistan to Tajikistan because of pressure from the police, who suspected him of anti-constitutional activities in connection with his alleged Islamic religious beliefs and practices. He feared, in particular, that if he stayed in Uzbekistan, he would face persecution from the State authorities, and would eventually be imprisoned and tortured like some of his fellow Muslim friends. In support of his allegation of the risk of ill-treatment in Uzbekistan, the applicant submitted a copy of a list of persons who had been charged with offences against the State. The list had been prepared by the Human Rights Centre “Memorial”, a non-governmental organisation based in Moscow, and included the applicant’s name. According to this document, the applicant was charged under Article 159 § 4 of the Uzbekistan Criminal Code (attempting to violently overthrow the State’s constitutional order). At the top of the document, it was explained that the list had been compiled on the basis of the “Bulletin on the Search for Criminals” prepared by the criminal investigation and counter-terrorism department of the Ministry of the Interior of Uzbekistan and published in Tashkent in May 2003. 12. From Tajikistan, the applicant went on to Afghanistan and Pakistan. In 2005 he arrived in Iran, where he settled in Zahedan. The applicant applied to the United Nations High Commissioner for Refugees (“the UNHCR”) in Zahedan for recognition as a refugee. He lived in Zahedan for two years without experiencing any major problems. In 2007, however, together with some other Uzbek asylum seekers who had left their country for the same reasons, the applicant decided to flee from Iran following deportation threats. He claimed that the threats had been a response to certain disagreements with the Iranian authorities over their living conditions. 13. On 18 November 2007 the applicant entered Turkey illegally through Van and went to Ankara to apply for refugee status at the UNHCR. Following a preliminary interview, the applicant was referred to the UNHCR office in Van. The Van office issued him with an asylum seeker certificate. Subsequently, he registered with the Van police headquarters and started the domestic temporary asylum procedure. Thereafter he was given a temporary residence permit until 24 September 2008 and was ordered to report to the police three times a week for signature. It appears that the other Uzbek asylum seekers who had fled Iran together with the applicant were granted similar certificates and permits after following the same procedural steps. 14. On an unspecified date the Van police sent a notice to a number of Uzbek families requiring them to appear at the police station on 12 September 2008. The notice stated that their attendance was required for the distribution of food rations and school stationery. 15. Although the applicant did not receive such a notice, at 2 p.m. on 12 September 2008 he went to the police station for signature, as part of his weekly routine. Once at the police station, some twenty-nine asylum seekers, including the applicant, were placed in detention. Their personal items, including identity documents, money and telephones, were confiscated. They were driven to the border at around 9 p.m. the same evening and forcibly deported to Iran. The applicant was allegedly illtreated and threatened by the police during deportation. 16. After crossing the border to Iran on foot, the Uzbek asylum seekers, including the applicant, were captured and held hostage by people smugglers, who demanded 5,000 United States dollars to spare their lives and to release them. The asylum seekers contacted some other Uzbeks who had managed to escape deportation from Turkey and obtained the ransom fee. The smugglers made them walk for three days to Yüksekova, a town close to the Iranian border of Turkey, where they were released. 17. After re-entering Turkey illegally, the applicant went back to Van together with the other Uzbek asylum seekers. They requested legal advice from the Van Bar Association, which, along with two Turkish non-governmental organisations, published a report on 28 September 2008 regarding the Uzbek asylum seekers’ collective expulsion. It was argued in the report, inter alia, that the expulsion of the Uzbeks by the Turkish State authorities, despite their valid residence permits, had had no legal basis. It was also alleged that the expulsion had been motivated by political considerations to improve relations with Uzbekistan, which had been strained following the acceptance by Turkey of members of Uzbek opposition groups, such as the applicant, as asylum seekers in recent years. 18. On 11 October 2008 a number of Uzbek asylum seekers, who had previously been deported to Iran on 12 September 2008, were collected from their homes by police officers from the Van police headquarters. The same evening, they were deported to Iran once again. The applicant, however, escaped this deportation by pure chance, as the police did not have his correct home address. 19. The deportation of the applicant and the other Uzbek nationals was brought to the attention of the national and international public through press releases from various NGOs and the UNHCR. In particular, seven human rights and refugee rights organisations, including Amnesty International, issued a press release in which they condemned the forced illegal deportation of the applicant and the other Uzbek nationals to Iran. Likewise, a Turkish parliamentarian issued a press release within the Parliament and criticised the removal as well as the existing refugee protection system in Turkey. 20. On an unspecified date the applicant’s representative sent letters to, inter alia, the Human Rights Commission of the Parliament of Turkey, the Human Rights Commission of the Van Governor’s office and the Ministry of the Interior. 21. On 26 November 2008 the head of the Human Rights Commission of the Parliament of Turkey replied to the applicant’s representative that the Ministry of the Interior had informed the Parliament, in a letter dated 11 November 2008, that the applicant had been deported to Iran, a safe third country, in compliance with the legislation in force. 22. In his reply dated 22 April 2009, in his capacity as head of the Human Rights Commission of the Van Governor’s office, the Deputy Governor of Van informed the applicant’s representative that the applicant and the other deportees had been removed to Iran in compliance with the legislation in force and that Iran was a safe third country where the applicant had lived before he had arrived in Turkey in 2007. 23. On 16 March 2010 the UNHCR Ankara Office sent a letter to the applicant’s representative, informing him that the UNHCR had learned that the applicant, along with a number of other Uzbek nationals, had been illegally deported to Iran and that the applicant’s asylum claim was under review. The UNHCR also informed the applicant’s representative that on 26 September 2008 they had sent a letter to the Turkish authorities requesting the latter to take the necessary measures to grant the applicant and other Uzbek nationals who had been deported on 12 September 2008 residence permits with a view to legalizing their status in Turkey pending the completion of the procedures with regard to their cases. 24. Since 2008, the applicant has been living in Turkey in hiding and his application for refugee status under the mandate of the UNHCR is still under consideration. On 4 December 2013 and 28 March 2014 he was interviewed by officers from the UNHCR’s Ankara office regarding his application for refugee status. He has not received any information from the Turkish authorities as to his request for asylum. The applicant cannot approach the Turkish authorities to apply for asylum or to obtain a temporary residence permit for fear of being deported to Iran, like the other Uzbek asylum seekers who were deported once again to Iran in October 2008. Moreover, he cannot appoint a lawyer to undertake the necessary legal and procedural actions on his behalf before the domestic authorities as he does not possess the necessary identity documents required to issue a power of attorney before a notary public. 25. When the applicant applied for asylum in Turkey in December 2007, he informed the authorities that he had been granted refugee status in Iran by the UNHCR. His application was registered and he was asked not to leave the city of Van. 26. On 14 February 2008 the applicant left Van and returned there on 26 August 2008. He subsequently repeated his asylum request. 27. On an unspecified date the applicant’s asylum request was assessed in the light of Article 33 of the Convention Relating to the Status of Refugees, the European Convention on Human Rights, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the national legislation. He was subsequently deported to Iran, a safe third country, where he was recognised as a refugee by the UNHCR. According to a document signed by two police officers and one military officer, submitted by the Government, twenty-nine Uzbek and Afghan nationals, including the applicant, were deported on 12 September 2008. 28. According to the Government, the applicant was not deprived of his liberty. Moreover, his identity documents were not confiscated. 50. The applicant complained under Articles 3, 6 and 13 of the Convention that he had been unlawfully deported to Iran on 12 September 2008 without an individual assessment of his situation and claims, and whilst he was legally residing in Turkey, and that he had not been informed of the decision to deport him to Iran on 12 September 2008 and, thus, had had no effective domestic remedies to challenge it. 51. The Government submitted that the applicant’s claims were not substantiated. 52. The Court considers that this part of the application should be examined under Article 13 of the Convention alone. However, having regard to its reasoning which led it to conclude Article 3 of the Convention was breached in the present case, the Court finds nothing that would justify a separate examination of the same facts from the angle of Article 13 of the Convention. It therefore deems it unnecessary to rule separately on either the admissibility or the merits of the applicant’s complaints under this head (see M.D. and M.A., cited above, § 70).