Gülelen and a secret extradition of five teachers from Moldova to Turkey because of alleged ties with the movement. Violation of the ECHR.
JUDGMENT
Ozdil and others v. The Republic of Moldova 11.06.2019 (no. 42305/18)
SUMMARY
Extradition of five Turkish professors who were wanted by the Turkish authorities for alleged ties to the Fethullah Gülen movement.
The Court found in particular that the arrest of the applicants and the speed of their extradition from Moldova to Turkey constituted an illegal transfer from the territory of the defending State to Turkey and had infringed all the guarantees given to applicants by domestic and international law . Infringement of Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights and violation of Article 8 (right to respect for private and family life)
PROVISIONS
Article 5 par. 1
Article 8
PRINCIPAL FACTS
The applicants, Yasin Ozdil, Mujdat Celebi, Riza Dogan, Sedat Hasan Karacaoglu, and Mehmet
Feridun Tufekci, are five Turkish nationals who were born in 1976, 1972, 1976, 1970, and 1976
respectively. They are currently detained in Turkey.
The applicants were secondary school teachers in a chain of schools in Moldova called Orizont. In
connection with the attempted military coup of 15/16 July 2016 in Turkey, the Turkish ambassador
to Moldova accused the Orizont schools of ties to the Gülen movement and accused the teachers in
those schools of terrorism.
In March 2018 the principal of the Chişinău-based Orizont school was arrested and questioned by
the Moldovan secret services concerning allegations of supporting terrorist organisations. In
connection with the above events, in April 2018 all the applicants applied to the Moldovan Bureau
for Migration and Asylum (“the BMA”) for asylum. They sought to obtain refugee status in Moldova
because they feared reprisals in their country of origin, Turkey, on the grounds of their political
views. The applicants were informed in June 2018 by the prosecutor’s office that there were no
pending criminal investigations involving them.
In September 2018 seven teachers from the Orizont schools – among them the applicants – were
arrested in the course of a joint operation conducted by the Moldovan and Turkish services. They
were taken directly to Chişinău Airport, where a specially chartered aeroplane was waiting for them
and which took them immediately to Turkey. The applicants’ families had no knowledge of their fate
for several weeks.
Shortly afterwards their families received letters from the BMA containing decisions in which the
applicants’ applications for asylum were rejected and in which the applicants were banned from
entering Moldovan territory for a period of five years and their expulsion under supervision from
Moldova was ordered. The BMA concluded that the applicants fulfilled the legal requirements to be
granted asylum in Moldova, but found nevertheless, on the basis of a secret note received from the
Moldovan secret services, that they presented a threat to national security.
In September and October 2018 the applicants’ representative, who had received powers of
attorney from their wives, contested the BMA’s decisions in court. However, their actions were
dismissed on the grounds that the powers of attorney had not been signed by the applicants.
THE DECISION OF THE COURT…
Article 5 § 1
The Government submitted that the Moldovan authorities had not been aware of the applicants’
fears of travelling to Turkey. However, the Court noted that the applicants had clearly expressed
their fear of criminal prosecution in Turkey in their asylum applications. Moreover, the Moldovan
authorities had not only failed to give the applicants a choice of jurisdiction to be expelled to, but
had deliberately transferred them directly into the hands of the Turkish authorities.
Since the applicants had been transported to Turkey in a specially chartered aeroplane, it was also
clear that the joint operation of the Moldovan and Turkish secret services had been prepared well in
advance of September 2018. The facts of the case showed that the operation had been organised in
such a manner as to take the applicants by surprise so that they would have no time or possibility to
defend themselves.
The Court further noted that the BMA had not served its decisions on the applicants, but had posted
them to their families after the applicants’ removal.
Viewing the circumstances of the case and having regard to the evidence and to the speed with
which the Moldovan authorities had acted, the Court concluded that depriving the applicants’ of
their liberty in September 2018 had been neither lawful nor necessary within the meaning of Article
5 § 1 (f), nor devoid of arbitrariness. Depriving the applicants of their liberty in this way amounted to an extra-legal transfer of persons from the Moldovan territory to Turkey which circumvented all guarantees offered to them by domestic and international law. There had therefore been a breach of Article 5 § 1.
Article 8
Since the applicants had been integrated into Moldovan society and had had genuine family lives
there, the Court considered that their exclusion from Moldova had radically disrupted their private
and family lives. Accordingly, there had been an interference with their rights under this heading.
The Court noted that Moldovan law regulated expulsion and extradition. Nevertheless, the
applicants had been removed by way of an extra-legal transfer which had circumvented domestic
and international legal guarantees. Since this forcible transfer had lacked a sufficient legal basis, it
had not been in “accordance with the law” within the meaning of paragraph 2 of Article 8.
The Court reiterated that a person subjected to a measure based on national security considerations
must be able to have it scrutinised by an independent and impartial body.
The Court observed that no proceedings had been brought against the applicants for participating in
the commission of an offence. In breach of domestic law, they had not been served with the
decisions declaring their presence undesirable until after they had been expelled. As the applicants
had not enjoyed the minimum degree of protection against arbitrariness on the part of the
authorities, the Court concluded that the interference with their private and family lives had not
been in accordance with the law. There had accordingly been a violation of Article 8.
Article 6 § 1 and Article 1 of Protocol No. 7
Decisions regarding the entry, stay and deportation of aliens did not concern the determination of
civil rights or obligations or of a criminal charge within the meaning of Article 6. Thus, since the
complaint under Article 6 § 1 was incompatible ratione materiae with the provisions of the
Convention, the Court declared it inadmissible.
Having regard to the findings under Articles 5 § 1 and 8, the Court held that there was no need to
separately examine the complaint under Article 1 of Protocol No. 7.
Just satisfaction (Article 41)
The Court held that the Republic of Moldova was to pay each applicant 25,000 euros (EUR) in
respect of non-pecuniary damage(echrcaselaw.com).
