Mostafa and Others v. Turkey (16348/05).
| Date | 20080115 |
|---|---|
| Article | 34 |
| Decision | violation |
CHAMBER JUDGMENT MOSTAFA AND OTHERS v. TURKEY
The European Court of Human Rights has today notified in writing its Chamber judgment1 in the case of Mostafa and Others v. Turkey (application no. 16348/05).
The Court held unanimously that there had been a violation of Article 34 (right of individual petition) of the European Convention on Human Rights.
(The judgment exists only in French)
1. Principal facts
The six applicants, Sirwan Mohammad Mostafa, Diyako Sirwan Mohammad, Hako Sirwan Mohammad, Didar Sirwan Mohammad, Bilal Sirwan Mohammad and Sawsen Maarof Mohammad, are Iraqi nationals who were born in 1970, 1967, 1999, 1991, 2001 and 2004, respectively, and who have been living in northern Iraq since their expulsion from Turkey. The first applicant is the husband of the second and they are the parents of the four others.
The applicants arrived in Turkey on 29 February 2000 on Iraqi passports.
They lodged an application for political asylum with the UNHCR (United Nations High Commissioner for Refugees) in Ankara, but it was rejected on the ground that Sirwan Mohammad Mostafa had been convicted of a serious non-political offence in his country of origin. In August 2003 the Turkish Minister of the Interior decided that the applicants should be deported and they unsuccessfully lodged a number of appeals against that decision.
On 22 April 2005 the Minister of the Interior informed the applicants of his decision to have them deported, finding that they did not fulfil the necessary conditions to be granted political refugee status. He allowed them 15 days to leave voluntarily to a country of their choosing, failing which they would be deported to their country of origin.
The applicants lodged an application before the European Court of Human Rights, which indicated to the Turkish Government on 4 May 2005, under Rule 39 (interim measures) of the Rules of Court, that it was desirable in the interests of the parties and the proper conduct of the proceedings not to expel the applicants to Iraq pending the Court’s decision on the case.
However, on 11 May 2005 they were deported to northern Iraq. In March and July 2007 the applicants informed the Court of numerous problems, in particular of a political nature, that they said they had encountered since their expulsion.
2. Procedure and composition of the Court
The application was lodged with the European Court of Human Rights on 3 May 2005.
Judgment was given by a Chamber of seven judges, composed as follows:
Françoise Tulkens (Belgian), President,
András Baka (Hungarian),
Rıza Türmen (Turkish),
Mindia Ugrekhelidze (Georgian),
Vladimiro Zagrebelsky (Italian),
Danutė Jočienė (Lithuanian),
Dragoljub Popović (Serbian), judges,
and also Sally Dollé, Section Registrar.
3. Summary of the judgment2
Complaints
The applicants alleged that their expulsion to Iraq put their lives in danger. The Court, observing that the Government had failed to comply with the measure it had indicated under Rule 39 of the Rules of Court, considered whether there had been a violation of Article 34 of the Convention.
Decision of the Court
Article 34
The Court reiterated that the undertaking not to hinder the effective exercise of the right of individual application precluded any interference with an individual’s right to present and pursue his complaint before the Court effectively.
In the applicant’s case the expulsion to northern Iraq had hindered the proper examination of their complaints, as had been consistently found by the Court in similar cases, and had ultimately prevented the Court from according them the necessary protection from potential violations of the Convention. The Court noted that it had been unable to communicate with the applicants from the time of their expulsion in March 2005 until March 2007. Accordingly, it was not in a position to ascertain whether they had been hindered in the effective exercise of their right of individual application during that period.
However, regardless of whether there had been any such hindrance, Article 34 of the Convention was closely connected to Rule 39 of the Rules of Court. The Court reiterated that by virtue of Article 34 States which had ratified the Convention undertook to refrain from any act or omission that might hinder the effective exercise of an applicant’s right of individual application. More specifically, the Court emphasised that a measure of interim protection was, by its very nature, provisional, and that its necessity had to be assessed at a precise point in time in view of the existence of a risk that might hinder the effective exercise of the right of application guaranteed by Article 34.
The Court concluded that, because Turkey had failed to comply with the interim measures indicated under Rule 39 of the Rules of Court, there had been a violation of Article 34.