CEDH · CASELAW;CLIN;ENG — 22 septembre 2009

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 122 August-September 2009 Abdolkhani and Karimnia v. Turkey - 30471/08 Judgment 22.9.2009 [Section II] Article 3 Expulsion Risk of ill-treatment in event of expulsion: violation if expelled   Article 13 Effective remedy Lack of effective remedy against deportation: violation   Facts – The applicants were Iranian nationals and members of the People’s Mojahedin Organisation (“the PMOI”). They left Iran on unspecified dates and stayed in a PMOI camp in Iraq until they decided to leave the PMOI and entered a refugee camp set up by the United States forces in Iraq. They were recognised as refugees by the United Nations High Commissioner for Refugees (UNHCR), which considered that their links to the PMOI and their political opinions put them at risk of arbitrary deprivation of life or detention and ill-treatment in Iran. They then tried to enter Turkey. An initial attempt ended in their arrest and return to Iraq without their being able to explain their situation to border officials or, it would appear, any formal decision being taken to deport them. They immediately re-entered Turkey, but on 21   June 2008 were re-arrested and detained. Although they made statements to both the gendarmerie and the court explaining that they feared for their lives in Iran, they were convicted of illegal entry into Turkey, with sentence deferred for five years, and the Turkish authorities made an (unsuccessful) attempt to deport them to Iran on 28   June 2008, without notifying them of the decision or the reasons for their deportation. Two days later the applicants obtained an interim measure from the European Court under Rule   39 of the Rules of Court. They were transferred to a Foreigners’ Admission and Accommodation Centre in September 2008. Law – Article 3: As regards the risks of ill-treatment in the event of deportation to Iran, the Court noted reports from Amnesty International, Human Rights Watch and the UNHCR Resettlement Service about PMOI members in Iran either being executed or found dead in suspicious circumstances in prison. Unlike the Turkish authorities, the UNHCR had interviewed the applicants and had had the opportunity to test the credibility of their fears and the veracity of their account and had found that they risked arbitrary deprivation of life, detention and ill-treatment in their country of origin. There were thus serious reasons to believe that former or current PMOI members and sympathisers could be killed and ill-treated in Iran and that the applicants had been affiliated to that organisation. As to the risks in Iraq, it was noted that the removal of Iranian nationals to that country by the Turkish authorities was carried out in the absence of a proper legal procedure. Furthermore, evidence before the Court from various sources indicated a strong possibility that persons perceived to be affiliated to the PMOI were removed from Iraq to Iran. There was, therefore, a real risk of the applicants being subjected to treatment contrary to Article   3 if they were returned to Iran or Iraq. In that connection, the fact that PMOI members might create a risk to national security, public safety and order in Turkey was irrelevant, given the absolute nature of the protection afforded by Article   3. In any case, the applicants had left the PMOI and were now UNHCR recognised refugees. Conclusion : violation if deported (unanimously). Article 13: Both the administrative and judicial authorities had remained totally passive regarding the applicants’ serious allegations of a risk of ill-treatment if they were returned to Iraq or Iran. Moreover, by failing to consider the applicants’ requests for temporary asylum, to notify them of the reasons for not taking their asylum requests into consideration and to authorise them to have access to legal assistance (despite their explicit request for a lawyer) while in police detention, the national authorities had prevented the applicants from raising their allegations under Article   3 within the relevant legislative framework. What was more, the applicants could not even apply to the authorities for annulment of the decision to deport them as they had not been served with the deportation orders or notified of the reasons for their removal. In any event, judicial review in deportation cases in Turkey could not be regarded as an effective remedy since an application for annulment of a deportation order did not have suspensive effect unless the administrative court specifically ordered a stay of execution. The applicants had not therefore been provided with an effective and accessible remedy in relation to their Article   3 complaints. Conclusion : violation (unanimously). Article 5 § 1: In the absence of clear legal provisions establishing the procedure for ordering and extending detention with a view to deportation and setting time-limits for such detention, the national system had failed to protect the applicants from arbitrary detention and, consequently, their detention could not be considered “lawful”. Conclusion : violation (unanimously). Article 5 § 2: The applicants had been arrested on 21   June 2008 and subsequently detained in police custody. On 23   June 2008 they had been convicted of illegal entry. Yet they had not been released and from then on had not been detained on any criminal charge, but in the context of immigration control. In the absence of a reply from the Government or any document in the case file to show that the applicants had been informed of the grounds for their continued detention after 23   June 2008, the Court concluded that the national authorities had never actually communicated the reasons to them. Conclusion : violation (unanimously). Article 5 § 4: Given the findings that the applicants had been denied legal assistance and had not been informed of the reasons for their detention, the applicants’ right to appeal against their detention had been deprived of all effective substance. Nor had the Government submitted that the applicants had at their disposal any procedure through which the lawfulness of their detention could have been examined by a court. The Court therefore concluded that the Turkish legal system had not provided the applicants with a remedy whereby they could obtain judicial review of their detention. Conclusion : violation (unanimously). Article 41: EUR 20,000 each in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes