Instantie

Europees Hof voor de Rechten van de Mens

Samenvatting

Betrokkene is in Iran gearresteerd wegens overspel. Nadat haar familie haar
weet los te krijgen, vlucht zij naar Turkije uit vrees voor bestraffing door
zweepslagen of steniging. Na een mislukte poging om door te reizen naar
Canada, vraagt zij in Turkije asiel aan. Haar aanvraag wordt echter niet in
behandeling genomen omdat de daarvoor geldende termijn van vijf dagen
inmiddels is verstreken. Haar beroep tegen het uitzettingsbesluit wordt
afgewezen. Vervolgens dient de vrouw bij de ECRM een klacht in op grond van
art. 3 (verbod op foltering en onmenselijke behandeling) en art. 13 (recht op
effective remedy) EVRM. Als gevolg van de inwerkingtreding van het Elfde
Protocol wordt de zaak overgenomen door het ‘nieuwe’ Hof. Het Hof overweegt
dat volgens vaste jurisprudentie de Verdragspartijen af moeten zien van
uitzetting van een vreemdeling, indien er gegronde redenen zijn om aan te
nemen dat betrokkene na uitzetting een reëel risico loopt te worden
blootgesteld aan een behandeling in strijd met art. 3 EVRM. De Turkse rechter
had dit moeten onderzoeken. In casu heeft geen inhoudelijke toetsing van
betekenis van het asielverzoek plaatsgevonden.
Mede op grond van de gegevens van Amnesty International en de UNHCR meent het
Hof dat in casu uitzetting schending van art. 3 EVRM oplevert. Tevens is er
sprake van schending van art. 13. In het onderhavige geval kan alleen
gesproken worden van een effective remedy in de zin van die bepaling, indien
een onafhankelijk en zorgvuldig onderzoek van het asielverzoek plaatsvindt,
en de mogelijkheid bestaat de uitzetting hangende dit onderzoek op te
schorten.

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PROCEDURE

1. The case originated in an application (no. 40035/98) against the Republic
of Turkey lodged with the European Commission of Human Rights (‘the
Commission’) under former Article 25 of the Convention for the Protection of
Human Rights and Fundamental Freedoms (‘the Convention’) by an Iranian
national, Mrs Hoda Jabari (‘the applicant’), on 26 February 1998.

2. Before the Court the applicant was represented by Mr Selahattin Esmer, a
lawyer practising in Ankara (Turkey). The Government of Turkey (‘the
Government’) did not designate an Agent for the purposes of the proceedings
before the Court.

3. The applicant alleged, inter alia, that she would be subjected to a real
risk of ill-treatment and death by stoning if expelled
from Turkey and that she was denied an effective remedy to challenge her
expulsion. She invoked Articles 3 and 13 of the
Convention with respect of these two complaints.

4. The application was transmitted to the Court on 1 November 1998, when
Protocol No. 11 to the Convention came into force (Article 5 2 of Protocol
No. 11).

5. The application was allocated to the Fourth Section of the Court (Rule 52
1 of the Rules of Court). Within that Section, the Chamber that would
consider the case (Article 27 1 of the Convention) was constituted as
provided in Rule 26 1 of the Rules of Court. Mr Riza Türmen, the judge
elected in respect of Turkey, withdrew from sitting in the case (Rule 28).
The Government accordingly appointed Mr Feyyaz Gölcüklü to sit as an ad hoc
judge (Article 27 2 of the Convention and Rule 29 1).

6. The Commission decided to apply former Article 36 of its Rules of
Procedure (Rule 39 of the Rules of Court) indicating to the Government that
it was desirable in the interests of the parties and the proper conduct of
the proceedings not to deport the applicant to Iran pending the Commission’s
decision. Following the entry into force of Protocol No. 11 and in accordance
with Article 5 2 thereof, the Court confirmed the application of Rule 39
until further notice.

7. By a decision of 28 October 1999, the Chamber declared the application
partly admissible.

8. The applicant and the Government each filed observations on the merits
(Rule 59 1). The Chamber having decided, after consulting the parties, that
no hearing on the merits was required (Rule 59 2 in fine), the parties
replied in writing to each other’s observations.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

9. In 1995, at the age of 22, the applicant met a man (‘X’) in Iran while
attending a secretarial college. She fell in love with him and after some
time they decided to get married.

10. However, X’s family was opposed to their marriage. In June 1997 X married
another woman. The applicant continued to see him and to have sexual
relations with him.

11. In October 1997 the applicant and X were stopped by policemen while
walking along a street. The policemen arrested the couple and detained them
in custody as X was married.

12. The applicant underwent a virginity examination while in custody. After a
few days she was released from detention with the help of her family.

13. In November 1997 the applicant entered Turkey illegally. In February 1998
the applicant went to Istanbul, from where she tried to fly to Canada via
France using a forged Canadian passport.

14. When the applicant arrived at the airport in Paris, the French police
found her to be in possession of a forged passport.

15. On 4 February 1998 the applicant was put on a plane for Istanbul.
Following her arrival at Istanbul airport at 1 a.m. on 5 February 1998 she
was arrested by policemen on the ground that she had entered Turkey using a
forged passport. Her passport was sent for examination.

16. On 6 February 1998 the applicant was transferred from a police station
inside the airport to the Aliens Department of the Istanbul Security
Directorate. She was brought before the Bakirköy Public Prosecutor on the
ground that she had entered Turkey using a forged passport in contravention
of the Passport Act 1950. The public prosecutor ordered her release, finding
she had not entered Turkey of her free will. The applicant was handed over to
the Istanbul Security Directorate with a view to her deportation. When the
applicant realised that she was going to be sent to Iraq she told the Aliens
Department that she was an Iranian national. The applicant lodged an asylum
application with the Aliens Department. The police rejected her application
as it had been submitted out of time. The applicant was informed that under
section 4 of the Asylum Regulation 1994 she should have lodged her
application for asylum within five days of her arrival in Turkey.

17. According to the applicant, she was held in detention at the Aliens
Department until 26 March 1998. Thereafter, following the intervention of the
Ankara branch office of the United Nations High Commissioner for Refugees
(‘the UNHCR’), she was accommodated at a hotel in Istanbul.

18. On 12 February 1998 a staff member of the UNHCR, with the permission of
the authorities, interviewed the applicant about her asylum request under the
1951 Geneva Convention Relating to the Status of Refugees (‘the Geneva
Convention’). On 16 February 1998 the applicant was granted refugee status by
the UNHCR on the basis that she had a well-founded fear of persecution if
removed to Iran as she risked being subjected to inhuman punishment, such as
death by stoning or being whipped or flogged.

19. On 8 March 1998 the applicant lodged an application with the Ankara
Administrative Court against her deportation. She also asked for a stay of
execution of her deportation.

20. On 16 April 1998 the Ankara Administrative Court dismissed the
applicant’s petitions on the ground that there was no need to suspend her
deportation since it was not tainted with any obvious illegality and its
implementation would not cause irreparable harm to the applicant.

21. On 4 November 1998 the Ankara Administrative Court ordered the
applicant’s release since there was no actual risk of her being deported in
view of the fact that she had been granted a residence permit pending the
outcome of her application under the European Convention on Human Rights.

II. RELEVANT DOMESTIC LAW

A. Administrative law provisions
22. Article 125 of the Turkish Constitution provides, inter alia:

‘Recourse to judicial review shall be available against all actions and acts
of the administration (…).

If the implementation of an administrative act would result in damage which
is difficult or impossible to compensate, and at the same time this act is
clearly unlawful, a stay of execution may be decided upon, stating the
reasons therefor (…)’

23. Article 155 of the Constitution states, inter alia:

‘The Council of State is the final instance for reviewing decisions and
judgments given by administrative courts. It shall also be the first and
lastinstance for dealing with specific cases prescribed by law. (…)’

24. Article 5 of the Code on the establishment and duties of tax courts,
administrative courts and regional administrative courts (No. 25765)
provides: inter alia:

‘Administrative courts deal with:

(a) actions for annulment

(b) administrative actions

(c) (…)

except for those actions which are within the competence of tax courts and
those which should be dealt with by the Council of State as a first instance
court.’

25. Article 25 of the Act on the Council of State provides:

‘Final decisions rendered by the administrative courts and the tax courts, as
well as final decisions rendered by the Council of State acting as a first
instance court may be appealed to and dealt with by the Council of State.’

B. The law and practice governing asylum seekers
26. Turkey has ratified the 1951 Geneva Convention relating to the status of
refugees and the 1967 Protocol thereto. It has exercised the geographic
preference option under the 1951 Convention in order to limit the grant of
refugee status to asylum seekers from European countries. For humanitarian
reasons, Turkey issues temporary residence permits to asylum seekers from
non-European countries who are recognised by the UNHCR as refugees pending
their resettlement in a third country by that Organisation.

27. The Ministry of the Interior issued a Regulation on 30 November 1994
concerning asylum seekers seeking asylum in
Turkey or who are to be resettled in a third country. According to this
Regulation, foreign nationals arriving in Turkey to seek asylum must submit
their asylum application to the police within five days of their arrival in
Turkey. Those who enter illegally are required to submit their application to
the police at the border town nearest the point where they entered the
country. Asylum seekers entering the country legally may submit their
application to the police in any city within five days of their arrival.

28. A person who enters Turkey illegally and does not apply to the Turkish
authorities within five days of his or her entry cannot be accepted as a
refugee.

29. Asylum requests are examined by the Ministry of the Interior.
Non-European asylum seekers who receive a positive decision may then submit
their cases to the UNHCR for resettlement. The Ministry of the Interior
considers the merits of an asylum application from the standpoint of Turkey’s
obligations under the 1951 Geneva Convention and has regard to the opinions
of the Ministry of Foreign Affairs and other relevant ministries and
agencies. Foreigners whose requests are not accepted are liable to be
deported by the local authorities.

30. An amendment was introduced to the 1994 Asylum Regulation in January
1999. According to the amendment, the five-day period in which to lodge an
asylum request has now been increased to ten days. Furthermore, an asylum
seeker whose application has been refused may now appeal within fifteen days
of the refusal to the competent governorship. The appeal is to be assessed by
the superior of the official who took the initial decision to refuse asylum.

C. Recent international materials commenting on the punishment of
adultery in Iran
31. In its 1999 Annual Report, Amnesty International concluded that judicial
punishments amounting to torture or cruel, inhuman or degrading punishment
continued to be reported. Flogging was reportedly imposed for a wide range of
offences, at times in conjunction with the death penalty or a custodial
sentence. An Iranian woman, the co-accused of a foreign businessman, was
reportedly sentenced to 100 lashes in October 1999 after she was convicted of
illicit sexual relations. It was unknown whether the sentence was carried
out. In November 1999 an Iranian national was acquitted after he escaped from
the pit in which he had been buried to the waist in order to be stoned to
death in the town of
Lahijan. He had been sentenced to death for adultery.
32. The 1999 Country Reports on Human Rights Practices, released on 25
February 2000 by the US Department of State, mention, with reference to Iran,
that harsh punishments are carried out, including stoning and flogging.
Article 102 of the Islamic Penal Code details the methods authorities should
follow when conducting a stoning: ‘the stoning of an adulterer or adulteress
shall be carried out while each is placed in a hole and covered with soil, he
up to his waist and she up to a line above her breasts.’ According to press
accounts, a man was stoned to death in April 1999 in the town of Babol, which
borders the Caspian Sea. He was alleged to have killed three of his own sons.
Prior to the stoning, he received 60 lashes. The first stone was cast by the
judge who sentenced him to death. The law also allows for the relatives of
murder victims to take part in the execution of the killer.

THE LAW

I. Alleged violation of article 3 of the convention
33. The applicant maintained that her removal to Iran would expose her to
treatment prohibited by Article 3 of the Convention, which provides:

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

34. The applicant stated that she committed adultery in Iran and had to leave
before criminal proceedings could be taken against her. She submitted that
she would probably have been prosecuted and sentenced to a form of inhuman
punishment. In support of her assertion the applicant relied on, inter alia,
reports prepared by Amnesty International which refer to cases of women in
Iran having been stoned to death for having committed adultery. She stressed
that she was granted refugee status by the UNHCR on the ground that she had a
well-founded fear of persecution as she belonged to a particular social
group, namely women who have transgressed social mores according to the UNHCR
guidelines on gender-based persecution.

35. The applicant further claimed that, bearing in mind the established
case-law of the Court, stoning to death, flogging and whipping, which are
penalties prescribed by Iranian law for the offence of adultery, must be
considered forms of prohibited treatment within the meaning of Article 3 of
the Convention.

36. The Government maintained in reply that when becoming a Contracting Party
to the 1951 Geneva Convention Relating to
the Status of Refugees (‘the Geneva Convention’), Turkey had availed itself
of the geographic preference option in the
Convention to give preference to asylum seekers from European countries (see
paragraph 26 above). However, for humanitarian
reasons the authorities issue temporary residence permits to non-European
asylum seekers like the applicant who are recognised as refugees by the UNHCR
pending their resettlement in a third country. Given that the applicant
failed to comply with the five-day requirement under the 1994 Asylum
Regulation (see paragraphs 27 and 28 above), this facility could not be
extended to her.

37. The Government further questioned the substance of the applicant’s fears.
In their opinion the fact that the applicant failed to make an application to
the authorities or to the UNHCR when she arrived in Turkey in 1997 was at
variance with her allegations under Article 3 of the Convention. It was also
significant that she did not claim asylum status when she arrived at Paris
airport (see paragraph 14 above). In the Government’s view, it must be
doubted whether the applicant would ever have sought refugee status if she
had managed to enter Canada.

38. The Court recalls that Contracting States have the right, as a matter of
well-established international law and subject to their treaty obligations
including the Convention, to control the entry, residence and expulsion of
aliens. Moreover, the right to political asylum is not contained in either
the Convention or its Protocols (see the Vilvarajah and Others v. the United
Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, . 102).

However, it is well established in the case-law of the Court that expulsion
by a Contracting State may give rise to an issue under Article 3, and hence
engage the responsibility of that State under the Convention, where
substantial grounds have been shown for believing that the person in
question, if expelled, would face a real risk of being subjected to treatment
contrary to Article 3 in the receiving country. In these circumstances,
Article 3 implies the obligation not to expel the person in question to that
country (see the Soering v. the United Kingdom judgment of 7 July 1989,
Series A no. 161, p. 35, 90-91, the Cruz Varas and Others v. Sweden
judgment of 20 March 1991, Series A no. 201, p. 28, 69-70, and the Chahal
v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and
Decisions 1996-V, p. 1853, 73-74).

39. The Court further observes that, having regard to the fact that Article 3
enshrines one of the most fundamental values of a democratic society and
prohibits in absolute terms torture or inhuman or degrading treatment or
punishment, a rigourous scrutiny must necessarily be conducted of an
individual’s claim that his or her deportation to a third country will expose
that individual to treatment prohibited by Article 3 (see, mutatis mutandis,
the above-mentioned Chahal judgment, p. 1855, 79, and p. 1859, 96).

40. The Court is not persuaded that the authorities of the respondent State
conducted any meaningful assessment of the applicant’s claim, including its
arguability. It would appear that her failure to comply with the five-day
registration requirement under the Asylum Regulation 1994 denied her any
scrutiny of the factual basis of her fears about being removed to Iran (see
paragraph 16 above). In the Court’s opinion, the automatic and mechanical
application of such a short time-limit for submitting an asylum application
must be considered at variance with the protection of the fundamental value
embodied in Article 3 of the Convention. It fell to the branch office of the
UNHCR to interview the applicant about the background to her asylum request
and to evaluate the risk to which she would be exposed in the light of the
nature of the offence with which she was charged. The Ankara Administrative
Court on her application for judicial review limited itself to the issue of
the formal legality of the applicant’s deportation rather than the more
compelling question of the substance of her fears, even though by that stage
the applicant must be considered to have had more than an arguable claim that
she would be at risk if removed to her country of origin.

41. The Court for its part must give due weight to the UNHCR’s conclusion on
the applicant’s claim in making its own assessment of the risk which would
face the applicant if her deportation were to be implemented. It is to be
observed in this connection that the UNHCR interviewed the applicant and had
the opportunity to test the credibility of her fears and the veracity of her
account of the criminal proceedings initiated against her in Iran by reason
of her adultery. It is further to be observed that the Government have not
sought to dispute the applicant’s reliance on the findings of Amnesty
International concerning the punishment meted out to women who are found
guilty of adultery (see paragraph 34 above). Having regard to the fact that
the material point in time for the assessment of the risk faced by the
applicant is the time of its own consideration of the case (see the
above-mentioned Chahal judgment, p. 1856, 86), the Court is not persuaded
that the situation in the applicant’s country of origin has evolved to the
extent that adulterous behaviour is no longer considered a reprehensible
affront to Islamic law. It has taken judicial notice of recent surveys of the
current situation in Iran and notes that punishment of adultery by stoning
still remains on the statute book and may be resorted to by the authorities
(see paragraphs 31-32 above).

42. Having regard to the above considerations, the Court finds it
substantiated that there is a real risk of the applicant being subjected to
treatment contrary to Article 3 if she is returned to Iran.

Accordingly, the order for her deportation to Iran would, if executed, give
rise to a violation of Article 3.

II. Alleged violation of article 13 of the convention
43. The applicant further complained that she did not have an effective
remedy to challenge the decision whereby her application for asylum was
rejected as being out of time. She averred that this amounted to a 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.’

44. The applicant maintained that since her application for asylum was
time-barred she was never afforded an opportunity to explain to the
authorities why she feared deportation to Iran. There was no appeal against
the rejection of her asylum application.
Furthermore, her action before the Ankara Administrative Court could not be
considered an effective remedy since that court
could not suspend the deportation decision with immediate effect. The court
did not give detailed reasons for its decision not to suspend the applicant’s
deportation since the decision was an interim one and a separate decision
would have been required.

45. The Government acknowledged that the Ankara Administrative Court rejected
the applicant’s request for suspension and annulment of the deportation
order. However, she failed to request the annulment of the decision rejecting
her asylum request.
The Ankara Administrative Court was bound to dismiss the applicant’s request
with regard to her deportation since no such order had as yet been made.

46. With reference to the provisions of Article 125 of the Constitution (see
paragraph 22 above), the Government maintained that the domestic courts are
empowered to stay the execution of an administrative act if irreversible harm
would be caused to a plaintiff and the act is clearly unlawful. Furthermore,
an appeal from the decision of an administrative court lies to the Council of
State (see paragraph 25 above).

47. For these reasons, the Government contended that the applicant had an
effective remedy to challenge her deportation.

48. The Court recalls that Article 13 guarantees the availability at national
level of a remedy to enforce the substance of the Convention rights and
freedoms in whatever form they might happen to be secured in the domestic
legal order. The effect of this Article is thus to require the provision of a
domestic remedy allowing the competent national authority both to deal with
the substance of the relevant Convention complaint and to grant appropriate
relief, although Contracting States are afforded some discretion as to the
manner in which they conform to their obligations under this provision.
Moreover, in certain circumstances the aggregate of remedies provided by
national law may satisfy the requirements of Article 13 (see the
above-mentioned Chahal judgment, pp. 1869-70, 145).

49. The Court reiterates that there was no assessment made by the domestic
authorities of the applicant’s claim to be at risk if removed to Iran. The
refusal to consider her asylum request for non-respect of procedural
requirements could not be taken on appeal. Admittedly the applicant was able
to challenge the legality of her deportation in judicial review proceedings.
However, this course of action neither entitled her to suspend its
implementation nor to have an examination of the merits of her claim to be at
risk. The Ankara Administrative Court considered that the applicant’s
deportation was fully in line with domestic law requirements. It would appear
that, having reached that conclusion, the court felt it unnecessary to
address the substance of the
applicant’s complaint, even though it was arguable on the merits in view of
the UNHCR’s decision to recognise her as a refugee within the meaning of the
Geneva Convention.

50. In the Court’s opinion, given the irreversible nature of the harm that
might occur if the risk of torture or ill-treatment alleged materialised and
the importance which it attaches to Article 3, the notion of an effective
remedy under Article 13 requires independent and rigorous scrutiny of a claim
that there exist substantial grounds for fearing a real risk of treatment
contrary to Article 3 and the possibility of suspending the implementation of
the measure impugned. Since the Ankara Administrative Court failed in the
circumstances to provide any of these safeguards, the Court is led to
conclude that the judicial review proceedings relied on by the Government did
not satisfy the requirements of Article 13.

Accordingly, there has been a violation of Article 13.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

51. Article 41 of the Convention provides:

‘If the Court finds that there has been a violation of the Convention or the
Protocols thereto, and if the internal law of the High Contracting Party
concerned allows only partial reparation to be made, the Court shall, if
necessary, afford just satisfaction to the injured party.’

A. Damage
52. The applicant stated in her application form that she sought just
satisfaction for the violation of her rights. She repeated this request in
her pre-admissibility submissions dated 17 June 1999. No details of her
claims under Article 41 of the Convention were supplied.

53. The Government did not explicitly address the applicant’s requests at any
stage of the proceedings.

54. The Court considers that in the circumstances of the instant case a
finding of a potential violation of Article 3 of the Convention and an actual
violation of Article 13 of the Convention constitutes in itself sufficient
just satisfaction for any non-pecuniary damage that the applicant may have
suffered.

B. Costs and expenses
55. In her application form the applicant stated that she sought the payment
of her costs and expenses for bringing the
Convention proceedings. No details of her claims under Article 41 of the
Convention were supplied. The applicant received the
sum of FRF 5,000 by way of legal aid from the Council of Europe.

56. The Government made no submissions under this head either.

57. The Court observes that, in the absence of details of the applicant’s
claim under this head, the sum received by the
applicant by way of legal aid from the Council of Europe (FRF 5,000) can be
considered to cover adequately any costs and
expenses incurred in connection with the Convention proceedings.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Holds that in the event of the decision to deport the applicant to Iran
being implemented, there would be a violation of Article 3 of Convention;

2. Holds that there has been a breach of Article 13 of the Convention;

3. Holds that the finding of a potential breach of Article 3 of the
Convention and an actual breach of Article 13 of the Convention constitutes
in itself sufficient just satisfaction for any non-pecuniary damage sustained
by the applicant;

4. Dismisses the remainder of the applicant’s claims for just satisfaction.

Rechters

Mrs. Ress, Pastor Ridruego, Caflisch, Butkevych, Hedigan, Peoolonpää, Gölcüklü