Last Updated on May 19, 2019 by LawEuro
Communicated on 26 September 2018
SECOND SECTION
Application no. 66763/17
Alphan TELEK against Turkey
and 2 other applications
(see list appended)
STATEMENT OF FACTS
A list of the applicants, all of whom are Turkish nationals, is set out in the appendix.
A. The circumstances of the cases
The facts of the cases, as submitted by the applicants and as they appear from the documents submitted by them, may be summarised as follows.
The applicants were academics working for universities. They are also signatories of a petition, entitled Academics for Peace, which was published in January 2016 and in which the Turkish government’s actions in south-eastern Turkey were criticised. Following the publication of the petition, criminal proceedings were initiated against a large number of its signatories. The signatories were charged with the offence of disseminating terrorist propaganda on behalf of the PKK(Kurdistan Workers’ Party, an illegal armed organisation) under section 7 § 2 of the Prevention of Terrorism Act (Law no. 3713).
Following the attempted coup d’état in July 2016, a state of emergency was decreed in Turkey. A number of legislative decrees were then adopted within the legal framework of the state of emergency. The applicants were dismissed pursuant to those legislative decrees and their passports were cancelled.
1. Applications nos. 66763/17 and 66767/17
The two applicants were research assistants working for the Yıldız Technical University. They are still registered as Ph.D. students at the Boğaziçi University. The first applicant, AlphanTelek, is also a Ph.D. student at Institutd’étudespolitiques de Paris. The applicants were among the signatories of the above-mentioned Academics for Peace petition.
On 7 February 2017 the applicants were dismissed from their jobs and their passports were cancelled by the Legislative Decree no. 686, which was published in the Official Gazette the same day
The applicants claim that they were dismissed from their jobs and their passports were cancelled for having signed the petition. They also state that no judicial investigation was instigated against them.
On an unknown date the applicants brought an administrative action against their dismissals and requested restitution of their rights.
On 8 March 2017 the applicants made individual applications before the Constitutional Court in respect of their complaints regarding their dismissals and the cancellation of their passports.
On 11 April 2017 the Istanbul Administrative Court dismissed the second applicant Edgar Şar’s case, on the ground that he had been dismissed pursuant to a legislative decree adopted within the legal framework of the state of emergency and that his dismissal could not, therefore, be considered an administrative act which could be challenged before an administrative court. The first applicant’s case before the Istanbul Administrative Court was still pending at the time of the introduction of the application before the Court.
On 24 April 2017 the second applicant was admitted to the European University Institute (EUI)’s Doctoral Programme (Italy) as a Ph.D. researcher for the academic year of 2017-2018. On 30 June 2017 the EUI agreed to defer his enrolment due to the problems regarding his passport, and informed the applicant that he could enrol in the doctoral programme on 31 August 2018 with a view to carrying out his doctoral studies at the EUI in the academic year of 2018-2019.
The applicants’ individual applications were declared inadmissible by the Constitutional Court for non-exhaustion of domestic remedies on 27 July 2017 and 29 July 2017 respectively. The Constitutional Court found that the applicants had failed to exhaust the newly introduced remedy, namely the Inquiry Commission on the State of Emergency Measures, established by Legislative Decree no. 685 of 23 January 2017, as amended by Legislative Decreeno. 690 of 29 April 2017. The applicants argue, however, that the Inquiry Commission does not have jurisdiction over their complaints regarding the cancellation of their passports.
2. Application no. 15891/18
The applicant was an associate professor at Istanbul University. She was also one of the signatories of the Academics for Peace petition.
On 24 October 2016 the applicant, after having obtained an official written authorisation from the institution she was working for, travelled to Germany with her special passport (known in Turkey as a “Green Passport” which is issued to civil servants of a certain seniority and their dependants) to attend an academic conference organised at Oldenburg University.
On 29 October 2016, while she was still in Germany, the applicant was dismissed from her job and her passport was cancelled by Legislative Decree no. 675, which was published in the Official Gazette the same day. The applicant continued to stay in Germany following her dismissal.
On an unknown date the applicant brought an administrative action against her dismissal before the Istanbul Administrative Court.
On 21 December 2016 Istanbul Administrative Court rejected her case on the ground that she had been dismissed on the basis of a legislative decree adopted within the legal framework of the state of emergency and that her dismissal was not a result of an administrative act which could be challenged before an administrative court.
On 10 January 2017 the applicant obtained a residence permit and a work permit from the German authorities.
The applicant states that on 10 April 2017 she attempted to give a power of attorney to a lawyer in Turkey through the Turkish Consulate in Berlin. However, she was informed that the consulate could not provide any consular services to her since there was a restriction about her in their system which had been put in place by the Security Directorate. She was also told that her passport had been cancelled and that she could only be provided with a travel document, which could be used only once to travel to Turkey. According to the applicant, although she wanted to object to that record of restriction, the consulate personnel informed her that such an objection could only be made by the consulate and not by the applicant personally. The applicant states that subsequently she submitted a written request to the consulate to request further information on that record of restriction from the Security Directorate. The applicant states that she was not even given any written documents as proof that she had submitted that written request. The applicant prepared a verbatim document with the heading “record” (“tutanak”) signed by a lawyer and three witnesses concerning her written request for information at the consulate. The applicant also states that she has not received any answers to her request.
On 18 July 2017 Istanbul Regional Administrative Court rejected the applicant’s request for leave to appeal and decided to refer the case to the Inquiry Commission.
On 24 July 2017 the applicant’s individual application before the Constitutional Court was declared inadmissible for non-exhaustion of domestic remedies, namely the Inquiry Commission.
On 8 September 2017 the applicant lodged an application before the Inquiry Commission and that application is still pending.
On 22 October 2017 the applicant, with the assistance of her lawyer, attempted to renew, or, alternatively, change her passport at the Turkish Consulate in Berlin. She lodged a written request in that regard. However, she was informed that she had no right to make such an application at the consulate because of the record of restriction in her name in their system. The applicant was not given any written proof or registration number regarding her application. There is another verbatim document in the case file with the heading “record” (“tutanak”) prepared by the applicant and her lawyer concerning that application at the consulate.
On an unknown date the applicant applied to the Foreigners Office in Berlin to request from the German authorities a travel document (ReiseausweisFürAusländer) that she could use instead of her Turkish passport that had been cancelled. Her request was rejected.
On 22 February 2018 she applied to the same office to request an identity document that could be used in Germany. This application is still pending.
On 27 March 2018 the applicant lodged another individual application before the Constitutional Court in Turkey and requested an interim measure regarding her inability to renew her passport or obtain another passport. This application is still pending and the Constitutional Court has not taken any decision regarding the interim measure request.
Meanwhile, since her dismissal and the cancellation of her passport, the applicant has been living in Germany with her thirteen-year-old son M. K. F., who is a Finnish and Turkish dual citizen, in her custody. The applicant states that she cannot continue using her cancelled passport as an identity document in her day to day life in Germany as the expiry date on it is marked as 3 April 2018.
B. Relevant domestic law and practice
A description of the relevant domestic law may be found in Köksal v. Turkey ((dec.), no. 70478/16, §§ 9-17, 6 June 2017).
COMPLAINTS
A. Applications nos. 66763/17 and 66767/17
Relying on Article 8 of the Convention the applicants complain that their right to freedom of movement and their right to respect for their private life were violated on account of their inability to travel abroad due the cancellation of their passports for an indefinite period of time.
Under Article 2 of the Protocol No. 1 of the Convention the applicants complain that they cannot pursue their doctoral studies abroad despite the fact that they had already been admitted to Ph.D. programmes in France and Italy, respectively.
The applicants also complain under Article 13 of the Convention that there are no effective domestic remedies at their disposal for their Convention complaints.
B. Application no. 15891/18
Under Article 8 of the Convention the applicant complains that her right to freedom of movement and her right to respect for her private and family life were violated on account of the cancellation of her passport and her inability to renew it. The applicant complains that without a valid passport she is also deprived of a valid identity card abroad which causes her many problems in her day to day life and prevents her from obtaining a residence permit, opening a bank account, applying for a job and exercising her duties as the custodian of her son.
Relying on Articles 6 and 13 of the Convention the applicant further complains that her requests to renew her passport remained unanswered and that the relevant Turkish authorities provided no reasons for their inaction, in breach of her right to an adequately reasoned judgment. She further alleges that her right of access to court and her right to an effective remedy were also violated. To that end she complains that it is not possible under the relevant provision of the legislative decree to bring an action, which has suspensive effect, against the cancellation of her passport and that there are no domestic remedies capable of offering reasonable prospects of redress for her complaints.
QUESTIONS APPLICABLE TO ALL THREE APPLICATIONS
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
2. Did the applicants have at their disposal an effective domestic remedy for their Convention complaints, as required by Article 13 of the Convention? In particular, can the Constitutional Court, the Inquiry Commission on the State of Emergency Measures, established by Legislative Decree no. 685 dated 23 January 2017 and amended by Legislative Decree no. 690 dated 29 April 2017, or the administrative courts be regarded as an effective remedy within the meaning of Article 35 § 1 of the Convention? If so, the Government are invited to provide examples of relevant cases.
3. Has there been an interference with the applicants’ right to respect for their private life, within the meaning of Article 8 § 1 of the Convention, on account of the cancellation of their passports and/or their inability to obtain newpassports? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?Were the applicants’ applications for renewal of theirpassportsrejected and, if so, on what grounds?
The Government are requested to submit copies of any and all official documents (decisions, letters, etc.) by which the domestic authorities responded to the applicants’ requests.
CASE-SPECIFIC QUESTIONS
1. Applications nos. 66763/17 and 66767/17
Has there been a breach of the applicants’ right under Article 2 of Protocol No. 1 on account of their inability to pursue their doctoral studies abroad?
2. Application no. 15891/18
Having regard to the fact that the applicant’s requests addressed to the administrative authorities remained unanswered, has there been a breach of the applicant’s right of access to court within the meaning of Article 6 § 1 of the Convention on account of her alleged inability to bring an action before the domestic courts to obtain a new passport?
APPENDIX
No. |
Application
no. |
Lodged on | Applicant name
date of birth place of residence |
Represented by |
| 1. | 66763/17 | 11/08/2017 | Alphan TELEK
11/02/1990 İstanbul |
Mert ELEKÇİ |
| 2. | 66767/17 | 11/08/2017 | Edgar ŞAR
05/09/1991 İstanbul |
Mert ELEKÇİ |
| 3. | 15891/18 | 03/04/2018 | Zeynep KIVILCIM
26/03/1971 Berlin |
Benan MOLU |
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