Religion – Weltanschauung – Recht [ RWR ]

The case of M.N. and Others v. Türkiye (application no. 40462/16) concerned the risk of the applicants being expelled from Türkiye to Tajikistan on the grounds that they did not have valid visas and would pose a threat to public safety owing to their participation in Koranic study classes that had not been registered with the Turkish authorities.

In today’s Chamber judgment in this case the European Court of Human Rights held, unanimously, that there would be no violation of Article 3 (prohibition of torture and inhuman or degrading treatment) taken alone or in conjunction with Article 13 (right to an effective remedy) of the European Convention on Human Rights if the order for the applicants’ expulsion were to be enforced.

The Court found that the applicants had not succeeded in establishing that they faced a risk of being persecuted or subjected to treatment contrary to Article 3 of the Convention in the event of their return to Tajikistan, either on account of any political or social activism in their country of origin or on account of the conditions of their arrest in Türkiye.

The Court also indicated to the Government, under Rule 39 of the Rules of Court, that they should not expel the applicants until such time as the judgment in this case had become final or until further notice.

Principal facts

The applicants are seven Tajik nationals of Muslim faith who were born between 1977 and 1996.

They arrived in Türkiye on different dates between 2013 and 2015.

In October 2015 the applicants were arrested by police officers from the anti-terrorism branch of the Istanbul Security Directorate, following a search in a flat in Pendik (Istanbul). Sections of the national media reported in that connection that the Istanbul police had raided a number of houses in the area after receiving information to the effect that illegal religious establishments had been set up there and that some foreign nationals from Tajikistan and Uzbekistan who were living there might be members of the Islamic State of Iraq and Al-Sham (ISIS). According to the sources, the persons concerned may have been posing as students of religion and some of them may have travelled to Syria to join the ISIS forces there.

Two days later the applicants were transferred to the Kumkapı Aliens’ Removal Centre. On the same day the Istanbul Governor’s Office issued an order for their expulsion on the grounds that they did not have valid visas, that they were members of a terrorist organisation and that they would pose a threat to public safety.

In April 2016 the applications lodged by the applicants seeking the setting-aside of the orders for their expulsion were rejected by the Administrative Court.

In May 2016 the Constitutional Court dismissed the requests for interim measures lodged by the applicants. In January 2021 it declared their individual applications inadmissible.

In July 2016 the European Court applied an interim measure in the case under Rule 39 of the Rules of Court.

The applicants are currently living in Türkiye.

Complaints, procedure and composition of the Court

Relying on Articles 2 (right to life), 3 (prohibition of torture and inhuman or degrading treatment) and 9 (freedom of thought, conscience and religion), taken alone or in conjunction with Article 13 (right to an effective remedy), the applicants alleged that their return to Tajikistan would place them at real risk of a violation of their right to life or of ill-treatment, on account of their religious beliefs and of reports in the media wrongly portraying them as members of a terrorist organisation (the Islamic State of Iraq and Al-Sham).

Under Article 6 (right to a fair trial), they contended that they had not had an effective remedy by which to challenge their possible expulsion.

The application was lodged with the European Court of Human Rights on 15 July 2016.

Judgment was given by a Chamber of seven judges, composed as follows:

Jon Fridrik Kjølbro (Denmark), President,

Carlo Ranzoni (Liechtenstein),Egidijus Kūris (Lithuania),
Pauliine Koskelo (Finland),
Jovan Ilievski (North Macedonia),
Saadet Yüksel (Türkiye),
Diana Sârcu (the Republic of Moldova),

and also Hasan Bakırcı, Section Registrar.

Decision of the Court

Article 3, taken alone or in conjunction with Article 13

The Court decided to examine the applicants’ complaints under Article 3, read alone or in conjunction with Article 13 of the Convention.

With regard to the risks which the applicants allegedly faced on account of their situation in their country of origin: the Court noted that the applicants did not mention being involved in any political activity in Tajikistan before coming to Türkiye that would be regarded as illegal by the Tajik authorities. Furthermore, they did not claim to have been members of any movement or organisation deemed to be illegal or anti-establishment in Tajikistan, nor did they allege that any criminal investigation had been conducted against them in that country. The Tajik authorities had not issued a wanted notice concerning them for illegal activity in Tajikistan, and had not sought to secure the applicants’ return to that country by the use of force or threats. Furthermore, there was nothing in the case file to suggest that the applicants had had difficulty obtaining passports in Tajikistan: they had been able to leave the country regularly and had entered Türkiye using ordinary entry visas. The problems which the applicants claimed to have encountered in their country of origin before coming to Türkiye concerned their alleged inability to pursue Koranic studies as they wished. However, the reports by international organisations made no mention of persecution occurring in connection with Koranic classes for adults, provided that the institutions concerned had no links to Islamic extremist groups.

Consequently, the Court considered that the applicants had not succeeded in establishing that they would face a risk of persecution if they were returned to Tajikistan, on account of any political or social activism in their country of origin.

As to the risks which the applicants allegedly faced on account of the conditions of their arrest in Türkiye: the applicants alleged that the false information in the media concerning their arrest, and the reasons given in the order for their expulsion, might lead the Tajik authorities to believe that they had links to ISIS.

The Court noted that the domestic courts had only examined implicitly and in rudimentary fashion the applicants’ allegations regarding this risk. Nevertheless, these shortcomings in the national authorities’ assessment did not suffice in themselves to find a violation of Article 3 taken in conjunction with Article 13 of the Convention, given the minor relevance of the risk alleged by the applicants in the particular circumstances of the case.

The Court observed that some sections of the media had portrayed the operation and the searches carried out by the Istanbul police in the school as targeting persons alleged to have close ties to ISIS.

However, the applicants’ names or identities had not been mentioned. The information contained in the media reports had not been taken up by the official authorities, and in any case had not pointed to any criminal responsibility on the part of the applicants. Moreover, the police officers had noted in the search report that no evidence of any offence had been found on the premises. It was therefore clear that the Turkish criminal investigation authorities had accepted the applicants’ version of events, namely that they had been studying the Koran in a religious school (medrese) that was not registered and that they had no links to ISIS or any other Islamist organisation.

As to the order for the applicants’ expulsion, which was based among other grounds on the threat that their presence in Türkiye might pose for public safety, the Court noted that the Administrative Court had not accepted that the applicants might be members of an illegal or terrorist organization such as ISIS. It had merely found that their presence was liable to raise a public-safety issue in Türkiye, as they were students in an institution that had not been declared to the Turkish authorities and was therefore not subject to their control and supervision. The Administrative Court had also taken into account the fact that the applicants were unlawfully resident in Türkiye, since their entry visas had already expired when they were arrested. It could not be inferred from this that the applicants were regarded by the Turkish judicial authorities as potential ISIS militants.

Consequently, the Court considered that the applicants had not demonstrated the existence of substantial grounds for believing that if they were returned to Tajikistan they would face a real risk there of treatment contrary to Article 3 of the Convention. Accordingly, it held that the enforcement of the order for the applicants’ expulsion would not entail a violation of Article 3 of the Convention, taken alone or in conjunction with Article 13.

Press release ECHR 210 (2022) 21.06.2022