Last Updated on April 28, 2019 by LawEuro
Communicated on 25 March 2019
SECOND SECTION
Application no. 1557/19
Muhammad Fawzi AKKAD
against Turkey
lodged on 21 December 2018
SUBJECT MATTER OF THE CASE
The applicant is a Syrian national, who fled Syria to Turkey in June 2014 (when he was 17 years-old) with his family to escape the ongoing civil war there. It appears that shortly afterwards, he was granted leave to stay in Turkey under “temporary protection”. In June 2018 he was apprehended near the Greek border in Edirne while trying to leave Turkey illegally. The present application concerns the applicant’s allegations as to his unlawful deportation to Syria by Turkish authorities following his apprehension in June 2018 in circumstances that had amounted to ill-treatment, the unlawful deprivation of his liberty during that process, and his inability at the material time to access an effective remedy to challenge his unlawful detention and deportation. The applicant relies on Articles 2, 3, 5 and 13 of the Convention, as well as Article 1 of Protocol No. 7 to the Convention.
According to the latest information in the case file, the applicant is currently in Germany pending the review of his application for refugee status.
QUESTIONS tO THE PARTIES
A. The applicant’s detention and removal to Syria:
1. Did the applicant have “temporary protection” status at the time of his apprehension near the Greek border in Edirne and his subsequent removal to Syria?
2. What is the legal procedure that is followed in respect of persons under temporary protection who are caught while attempting to leave Turkey by illegal means?
The Government are invited to provide relevant material from domestic law and practice in support of their response.
3. For what reason, and on what legal grounds, was the decision to transfer the applicant from Edirne to Hatay taken on 20 June 2018?
4. What was the legal basis for the applicant’s removal to Syria on 21 June 2018?
The Government are invited to submit the documents that served as the legal basis for the applicant’s removal to Syria on 21 June 2018. They are further requested to provide proof of notification of such documents to the applicant.
5. What was the nature and content of the document that the applicant was allegedly forced to sign by the authorities at the Reyhanlı border gate in Hatay right before his removal on 21 June 2018? Was the applicant provided with an interpreter and/or offered the assistance of a lawyer prior to signing that document? Was the applicant given a copy of the document that he had allegedly signed?
6. If the applicant was sent to Syria on the basis of his request for voluntary return, as indicated in the letter addressed by the Kırklareli Provincial Directorate for Migration Management to the Edirne Administrative Court on 17 July 2018, when and where was that request conveyed to the authorities?
The Government are invited to submit all information and documents that may serve to prove that the applicant had agreed to return to Syria by his own free will.
7. What is the legal procedure in Turkey for the “voluntary return” of foreigners, in particular those under temporary protection? Is the voluntary return process accompanied by any procedural safeguards to prevent the risk of misuse or arbitrariness?
8. Did the applicant’s removal to Syria on 21 June 2018 amount to a violation of Articles 2 and/or 3 of the Convention, having regard to the ongoing armed conflict there? In particular;
(i) Did the applicant’s removal comply with the relevant legal procedure set out in the Foreigners and International Protection Act (Law no. 6458) or elsewhere?
(ii) If the applicant was removed to Syria forcefully as alleged, did the authorities adequately examine whether he would face a real risk of suffering treatment contrary to Articles 2 and/or 3 of the Convention in Syria before going ahead with his removal (see, mutatis mutandis, Auad v. Bulgaria, no. 46390/10, §§ 95-108, 11 October 2011; F.G. v. Sweden [GC], no. 43611/11, § 127, ECHR 2016; and Babajanov v. Turkey, no. 49867/08, §§ 41-49, 10 May 2016)?
9. Did the applicant have at his disposal an effective domestic remedy, as required under Article 13 of the Convention, in connection with his complaints under Articles 2 and 3? In particular;
(i) Did the applicant have a realistic opportunity to challenge his removal to Syria prior to its execution? Was he provided with the opportunity to have access to a lawyer as from the time of his detention in Edirne on 19 June 2018?
(ii) Did the Edirne Administrative Court and the Constitutional Court adequately examine the complaints and allegations that the applicant brought before them in the aftermath of his removal to Syria?
10. Was the applicant’s removal to Syria in compliance with the requirements of Article 1 of Protocol No. 7 to the Convention?
11. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention during the period between 19 and 21 June 2018? If so;
(i) Did his deprivation of liberty during the relevant period fall under any of the sub-paragraphs of Article 5 § 1?
(ii) Was the applicant’s deprivation of liberty during that period “lawful” within the meaning of Article 5 § 1? In particular, was it based on an official decision and did the State authorities follow the legal procedure set out in Law no. 6458 or elsewhere when depriving the applicant of his liberty?
The Government are requested to indicate the legal basis for the applicant’s detention during the period in question and to provide all records and other documents pertaining to his detention, including a time-line showing where (and for how long) he was held after his apprehension on 19 June 2018.
(iii) Was the applicant’s detention carried out in such a manner as to protect him from arbitrariness (see Saadi v. the United Kingdom [GC], no. 13229/03, §§ 67-74, ECHR 2008)? In particular, is the applicant’s allegation that he was misinformed about where he was being taken at the time of his initial detention in Edirne on 19 June 2018 well-founded?
12. Was the applicant informed promptly, and in a language which he understood, of the reasons for his deprivation of liberty, as required by Article 5 § 2 of the Convention?
The Government are invited to submit the relevant documents in support of their response.
13. Did the applicant have at his disposal a remedy by which he could challenge the lawfulness of his deprivation of liberty and obtain his release as appropriate, as required by Article 5 § 4 of the Convention? In particular, was his access to any such remedies unduly hindered by the acts or omissions of State authorities?
14. Did the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 §§ 1, 2 and 4, as required by Article 5 § 5 of the Convention?
15. Did the applicant fully exhaust all remedies available to him in domestic law in connection with his above complaints? In this connection, what is the significance of the Constitutional Court’s decision of 12 September 2018, where it has dismissed all of the complaints that the applicant has raised in the context of the present application?
The applicant is requested to provide information as to his current whereabouts and legal status.
B. The applicant’s alleged ill-treatment prior to his removal to Syria
16. Did the applicant exhaust all effective domestic remedies as required by Article 35 § 1 of the Convention in relation to his allegations of ill‑treatment prior to his removal to Syria? If so;
(i) Did the circumstances in which the applicant was transferred from Edirne to Hatay amount to ill-treatment within the meaning of Article 3 of the Convention, noting in particular that he was allegedly handcuffed for the most part of the twenty-hour bus drive?
(ii) Was the applicant subjected to ill-treatment at the border gate in Reyhanlı by State agents, while he was allegedly being forced to sign the document mentioned in question 5 above? If so, did that ill-treatment amount to a violation of Article 3 of the Convention?
The applicant is requested to provide a detailed account of how he was allegedly ill-treated at the border gate.
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