G.H.H. and Others v. Turkey

Application no. 43258/98

G.H.H. and Others v. Turkey

The European Court of Human Rights (First Section) sitting on 31 August 1999 as a Chamber composed of

Mrs E. Palm, President,

Mr J. Casadevall,

Mr Gaukur Jörundsson,

Mr C. Bîrsan,

Mrs W. Thomassen,

Mr R. Maruste, Judges,

Mr F. Gölcüklü, ad hoc judge,

with Mr M. O'Boyle, Section Registrar;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 August 1998 by G.H.H. and Others against Turkey and registered on 2 September 1998 under file no. 43258/98;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 12 November 1998 and the observations in reply submitted by the applicants on 4 January 1999;

Having regard to the Court's decision of 23 February 1999 under Rule 39 of the Rules of Court to prolong until further notice the requests of the European Commission of Human Rights of 2 and 17 September 1998 to the Government not to deport the applicants;

Having regard to the further observations submitted by the applicants on 4 April and 30 April 1999 and the Government's observations in reply submitted on 17 May 1999 as well as the applicants' observations in reply to the Government's observations submitted on 27 May and 15 June 1999;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, G.H.H. (born in 1966), his wife, M.A. (born in 1959) and their son, A.S. (born in 1981), are Iranian nationals living in Turkey. They are liable to be deported to Iran in accordance with a deportation order.

They are represented before the Court by Rights International and the Iranian Refugees' Alliance, non-governmental organisations based in the United States of America.

The facts of the case, as submitted by the parties, may be summarised as follows.

In the late 1970s and at the beginning of the 1980s the first applicant (G.H.H.) had been a supporter of his home town branch of the Fedaian (Minority) ("the OFM") a Marxist-Leninist organisation. This local wing of the organisation was headed by his cousin. The first applicant's involvement in the organisation's activities brought him to the attention of the authorities and he was detained on two occasions in 1980. Following a government crackdown on the OFM and its members, the first applicant lost contact with the organisation. As from 1984 he began to engage in the production and distribution of a newsletter carrying anti-government articles as well as dissident literary contributions. The first applicant himself contributed political articles and poems to the newsletter. He maintains that between 1984 and 1990 he was kept under close surveillance by the intelligence services, including during his period of military service.

In 1992 he married the second applicant who in the late 1970s and early 1980s had been an anti-government activist in the Organisation of Iranian People's Fedaii ("the OIPFG"). During her student days she received several warnings from her university about her political activities.

While at university the first applicant founded a controversial literary journal and engaged in cultural, intellectual and social activities both within and outside his university which incurred the enmity of fundamentalist groups and led to his being questioned by the university intelligence services. He claims that his academic and research work as well as his western sense of dress were criticised as being incompatible with the fundamentals of Islam. He claims that in 1987 he was arrested and detained for a week by the authorities for drinking alcohol and during his detention received 80 lashes.

In 1993 the first applicant attempted to publish his first book, a collection of poems, some of which were dedicated to persons who, like his cousin, were regarded with suspicion or hostility by the Government. The poems conveyed feelings of romance, secularism and revolutionary fervour, but he composed them in a way which would not attract the application of the censorship laws. The first applicant finally secured official approval for the publication of the book on condition that he made certain amendments to its contents. With the assistance of a third party he procured by subterfuge a certificate of conditional approval to have the book printed which enabled him to have 3,000 copies run off. Before waiting for the official approval permit for the book's release, the first applicant distributed many copies to friends and bookshops. He has subsequently learned that the authorities refused to issue a permit. He maintains that since 1994 he has submitted four other books to the Ministry of Islamic Culture and Guidance for printing permits but never received a reply, only the verbal disapproval of officials of the books' contents. The first applicant claims that this effectively places a ban on his writings.

On 15 March 1996 the first applicant paid a visit to his home town. He was immediately detained on arrival by members of the Iranian security forces and taken to an intelligence office. He was questioned, inter alia, about his political activities, his literary associates and their meeting places and about how he had obtained a provisional permit to print his book. The security forces also interrogated him about the whereabouts of his cousin. He alleges that he was severely beaten while in detention. He was released after his brother agreed to stand bail for him. Before being released the first applicant was ordered to report back to the security services. He did not comply with this order and states that his brother was subsequently harassed and is currently facing prosecution on account of his failure to respect the terms of his conditional release.

The first applicant states that on 29 March 1997 the publisher of a literary magazine with which he had connections was found murdered and that around the same period several other persons in the literary milieu who were known to him were imprisoned, attacked, disappeared or died in suspicious circumstances.

According to the first applicant, these events coupled with his own arrest and torture and dissident profile made him fear for his life and compelled him to flee Iran. He also states that after fleeing Iran his wife, the second applicant, was subjected to harassment and threats from vigilante groups in connection with his disappearance. During a search of their home by the intelligence services, a number of cassettes were found containing recordings of banned songs and of meetings attended by the first applicant and several of his literary associates. The first applicant alleges that the authorities used the tapes of the meetings to identify him and the other participants, several of whom were subsequently detained and questioned.

On 16 April 1997 the first applicant obtained a passport by bribing an official and he fled to Turkey about one week later. He arrived in Turkey on or about 23 April 1997 on a tourist visa and travelled to Istanbul. He was informed there that he should contact the office of the United Nations High Commissioner for Refugees ("UNHCR") in Ankara, which in turn informed him that he should register as an asylum seeker with the Istanbul police. The Istanbul police notified him that he could not register as an asylum seeker because he had been in Turkey for six days and that the asylum regulations required that asylum seekers register within five days of their arrival in the country.

The first applicant decided to renew his tourist visa fearing that if he lodged an asylum request he would be deported to Iran for non-compliance with the five-day time-limit.

On 1 May 1997 the first applicant was interviewed by the UNHCR, which rejected his asylum claim on 13 June 1997. He appealed this decision on 12 August 1997 and on 21 November 1997 the UNHCR rejected his appeal.

At some stage the first applicant was joined by the second and third applicants who fled Iran for their safety. The Government claim that the first applicant in fact arrived in Turkey on 7 November 1997 and was accompanied by the second and third applicants. In the applicants' view the entire family had been in Turkey before that date but had to go on a one-day trip to Georgia to have their visas renewed. They re-entered Turkey on 7 November 1997. The applicants do not dispute that they all registered as asylum seekers with the Ankara police on 11 November 1997. They were granted a residence permit on 12 December 1997 and ordered to reside in the town of Bilecik.

On 5 January 1998 the first applicant requested the UNHCR to reconsider his request for asylum and he was subsequently interviewed on 7 June 1998. On 8 July 1998 the UNCHR rejected the first applicant's renewed request and closed his case file.

On 18 August 1998 the applicants received a deportation order from the Turkish police. They were informed that they had fifteen days in which to appeal to the authorities against the implementation of the deportation order. The applicants objected and their residence permit was again extended on 11 September 1998. The applicants maintain that the decision to extend the residence permit was only taken in early December 1998 and in response to the Commission's requests on 2 and 17 September 1998 to the respondent Government not to deport the family.

On 21 September 1998 the Ministry of Foreign Affairs reconfirmed that the applicants did not meet the criteria for the grant of refugee status. The applicants claim that they were never informed of this decision.

By letter dated 23 March 1999 the UNHCR informed the Ministry of Foreign Affairs that it had conducted a fresh examination of the first applicant's request for refugee status. Following that examination, and in light of new elements submitted by the first applicant, the UNHCR decided to grant him refugee status. In reaching its decision the UNHCR had particular regard to the fact that the applicant had been actively involved in the Association of Iranian Authors and his activities had brought him into contact with other intellectuals who had been murdered in 1998, apparently on account of their work on behalf of the Association. The UNHCR concluded that if the applicant were to be returned to Iran, there was a reasonable likelihood that he would face persecution.

Subsequently, on receipt of the UNHCR's letter, the Ministry of Foreign Affairs directed that the applicants be entitled to remain in Turkey temporarily, for humanitarian reasons, until they were resettled in a third country. On 26 March 1999 the relevant authorities were requested to extend the applicants' temporary stay in Turkey.

COMPLAINTS

The applicants complain that their removal to Iran would be in violation of Article 3 of the Convention since they would face a real risk of being subjected to ill-treatment at the hands of either the authorities of the receiving country or pro-government bodies there. Furthermore, the risk to the lives, physical integrity and liberty of the family members in that country would result in the permanent break-up of the family unit and would thus place the respondent Government in breach of their obligations under Article 8 of the Convention in conjunction with Articles 2 and 3 thereof. In addition, they rely on Articles 6 and 13 in support of their complaint that they had no effective access to a court or to an effective remedy to dispute the lawfulness of the decision to deport them to Iran. They pointed in this respect to the fact that they were denied the necessary legal assistance and translation facilities to argue their case before an administrative court and had only fifteen days in which to appeal the deportation order to the Ministry of the Interior. The applicants further complained that the asylum and deportation policy of the respondent State unlawfully discriminated against non-Europeans such as themselves and was in violation of Article 14 of the Convention read with Articles 2, 3 and 8 thereof.

PROCEDURE

The application was introduced on 26 August 1998 and registered on 2 September 1998.

On 17 September 1998 the Commission decided to communicate the application to the respondent Government.

The Government's written observations were submitted on 12 November 1998. The applicants' observations in reply were submitted on 4 January 1999.

The applicants submitted information on developments concerning their request for asylum on 4 April and 30 April 1999. The Government submitted observations in reply on 17 May 1999. The applicants' replied to these observations on 27 May and 15 June 1999.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

On 23 February 1999 the Court decided under Rule 39 of its Rules of Procedure to prolong until further notice the Commission's requests of 2 and 17 September 1998 to the Government not to deport the applicants.

THE LAW

1.   The applicants maintained that if they were expelled to Iran they would face a real risk of being executed or tortured by the Iranian authorities or by pro-Government groups in Iran and in consequence the family unit would be inevitably broken up. They relied on Article 3 of the Convention as well as on Article 8 in conjunction with Articles 2 and 3 thereof. These Articles provide to the extent relevant:

Article 2

"1            Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ..."

Article 3

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Article 8

"1.            Everyone has the right to respect for his private and family life, his home and his correspondence.

2.   There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

In support of their claims the applicants stated that there was a well-documented systematic abuse of human rights by the authorities of the receiving country including of the rights of dissident writers such as the first applicant. In addition to state censorship and punishment of information professionals and literary figures whose writings run counter to the fundamental tenets of the Islamic order, a further major threat was posed by the violent and deadly attacks carried out by private groups on such persons. The applicant stressed in this connection that between 22 November and 13 December 1998 five Iranian writers, all critics of the Government, had been killed by members of a fundamentalist group and no charges have been brought against those responsible. Two of those killed in December 1998 were personally known to him through his activities in the Iranian Writers' Association, a dissident organisation.

They applicants maintained that against this background, and in particular in view of the first applicant's activism in the Iranian Writers' Association, the first applicant would be a target if expelled to Iran since his political and literary activities have exposed him to a real risk that he would be tortured or executed either at the hands of the authorities or with their complicity. They recalled in this connection that his writings had been censored and that he had been tortured by the security forces when detained in March 1997. They also drew attention to the fact that their requests for asylum and their application to the Court have heightened the risks attendant on their deportation since they have criticised heavily the political situation in the receiving State.

The applicants disputed the Government's contention that they had not related to the Turkish police during their interview on 11 November 1997 that the first applicant had been involved in cultural, literary and political activities in Iran. Furthermore, they maintained that the interview had not been conducted in accordance with proper procedures and that they had been unable to explain their personal circumstances in Iran on account of the lack of adequate interpretation in their own language.

The applicants further averred that their deportation would almost certainly lead to the break up of their family since they would be subjected to immediate detention or execution on their return to Iran.

The Government maintained in reply that the applicants' complaints should be declared inadmissible as being manifestly ill-founded. Contrary to the applicants' submissions, the Government stressed that when interviewed by the Ankara police on 11 November 1997 the first and second applicants stated in their asylum application form that they were not members of any political or other group or organisation in Iran and that they had never been arrested or tortured in Iran. Furthermore, they indicated on the form that they did not seek financial assistance from the Turkish authorities. Their aim was to seek asylum in Turkey in order to be re-settled in a third country. On 18 August 1998 they were served with a deportation order since they were considered not to meet the requirements of the Geneva Convention on the Status of Refugees 1951 ("the Geneva Convention"). The applicants objected to the order on 19 August 1998 and their residence permit was extended until 11 September 1998. On 21 September 1998 the Ministry of the Foreign Affairs re-affirmed that the applicants did not fulfil the Geneva Convention criteria for the grant of asylum.

The Court considers, in the light of the parties' submissions, that the above complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2.   The applicants complained that they had been effectively denied access to a court to challenge the lawfulness of the deportation order on account of the failure of the authorities to provide them with legal aid and adequate translation facilities. They relied on Article 6 § 1 of the Convention, which provides as relevant:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing ... by an independent and impartial tribunal established by law."

The Court would observe, and without prejudice to the issue as to whether the guarantees under Article 6 apply to deportation proceedings, that the applicants never took steps to request legal aid or interpretation or translation facilities from the competent authorities. While they maintain that legal aid is not available to challenge the legality of a deportation order, the Court notes that free legal assistance can be accorded to asylum seekers under the Code of Administrative Procedure to enable them to challenge a deportation order. Furthermore, the applicants have not substantiated that they are unable to have the documentation in support of their complaint translated into Turkish, it being observed that their case file has been considered on four separate occasions by the UNHCR and on three occasions by the authorities. In any event the applicants have not attempted to take legal proceedings and for that reason the Court cannot speculate as to whether either the lack of legal aid or the absence of interpretation or translation facilities can be considered to have prevented them from having access to a court. It considers that their complaint under this head must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

3.   The applicants further maintained that they had been denied an effective remedy in breach of Article 13 of the Convention, which provides:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

The applicants relied on their submissions in support of their Article 6 complaint and maintained in addition that the domestic law of the respondent State did not provide for a stay of execution of a deportation order pending the outcome of an appeal, thereby exposing them to the threat of summary deportation. The applicants further maintained that the ineffectiveness of any legal challenge to their expulsion was confirmed by the fact that the authorities had never informed them that on 21 September 1998 the Ministry of Foreign Affairs had rejected their asylum requests. Having regard to these circumstances they contended that it must be concluded that they had been denied an effective remedy in violation of Article 13.

The Court considers, in the light of the parties' submissions, that the above complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits. The Court concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

4.   The applicants claimed that as non-European asylum seekers they were barred under the asylum law of the respondent State from being granted permanent asylum or refugee status in Turkey. They maintained that this discriminatory policy violated their rights under Article 14 of the Convention in conjunction with Articles 2, 3 and 8.

Article 14 of the Convention provides:

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

The Government replied that they had lawfully exercised the geographical preference option when ratifying the Geneva Convention in order to limit their obligation to grant permanent refugee status in Turkey to European asylum seekers who fulfil the criteria laid down in that Convention. Non-European asylum seekers like the applicants have their requests for asylum processed by the authorities and pending a decision on a request an asylum seeker is granted a temporary residence permit. If recognised as a refugee with the meaning of the Geneva Convention he or she will be resettled in a third country with the assistance of the UNHCR. The Government stressed that this policy was fully in line with their commitments under international asylum law, was a humanitarian response to the plight of non-European asylum seekers and disclosed no breach of Article 14 of the Convention.

The Court observes that the essence of the applicants' complaints under this head concerns the manner in which the respondent State implements its asylum and refugee policy. It notes that there is no right as such under the Convention or its Protocols to political asylum (see the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, § 102). Having regard to the fact that the guarantee under Article 14 against non-discrimination relates solely to the rights and freedoms contained in the Convention and in that sense has no independent existence (see the Abdulaziz, Cabales and Balkandali v. the United Kingdom judgment of 28 May 1985, Series A no. 94, p. 35, § 71), the Court concludes that this part of the application is inadmissible ratione materiae within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the applicants' complaints concerning the effect which the implementation of the deportation would have on the first applicant's physical integrity and on the family as a whole as well as the absence of an effective remedy to challenge their deportation;

DECLARES INADMISSIBLE the remainder of the application.

Michael O'Boyle, Elisabeth Palm

Registrar, President