Deportation of Turkish nationals from Azerbaijan. They were extrajudicially deported. Violation of their personal freedom and degrading treatment
JUDGMENT
Shenturk and others v. Azerbaijan 10.03.2022 (app. no. 41326/17)
SUMMARY
The case concerned the arrest, detention and expulsion of the applicants from Azerbaijan to Turkey.
All four had worked in Azerbaijan as teachers in private schools associated with the Gülen
movement.
The Court found in particular that the removal of the applicants had been a disguised extradition and
their deprivation of liberty had been part of an extra-legal transfer in contravention of domestic and
international law, noting how the authorities had circumvented formal extradition proceedings and
relevant international safeguards, violating their Article 5 and Article 3 rights.
PROVISIONS
Article 3
Article 5
Article 13
Article 1 of the 7th Additional Protocol
PRINCIPAL FACTS
The applicants, Taci Shenturk, Isa Ozdemir, Ayhan Seferoglu and Erdogan Taylan, are Turkish
nationals who were born between 1971 and 1976 and are currently in custody in Turkey.
The four applicants came to Azerbaijan between 1992-95, or on an unspecified date in the case of
Mr Shenturk. All four regularised their residence statuses there, ultimately going to work in Gülenist
schools or other companies associated with the Gülen movement.
In 2017 the Turkish authorities informed their Azerbaijani counterparts that Mr Shenturk’s passport
had been cancelled, requesting his arrest and deportation. Also in 2017, Mr Ozdemir, Mr Taylan and
Mr Seferoglu were separately informed while on trips to Georgia of travel bans imposed on them.
All four were separately arrested and taken into custody. In the cases of the latter three applicants,
their residence permits were ultimately revoked as part of the proceedings.
In 2017 and 2018 the United Nations High Commissioner for Refugees (UNHCR) issued protection
letters in respect of Mr Shenturk and his family and Mr Ozdemir. The UNHCR later intervened and
prevented Mr Shenturk’s deportation initially.
None of the four successfully received asylum in Azerbaijan. The Government denied Mr Shenturk
had ever applied for asylum in Azerbaijan.
On 8 June 2017 without informing his family or the UNHCR, the Azerbaijani authorities deported
Mr Shenturk to Turkey. No formal proceedings had been commenced.
Proceedings were opened in respect of Mr Ozdemir, Mr Seferoglu and Mr Taylan in 2018 and their
detention ordered. However, Mr Ozdemir’s release and non-extradition was later separately ordered
by the courts. All three were deported by the State Migration Service despite that order and despite
the ongoing proceedings in the other two cases. The Government stated the deportations had been
carried out owing to a lack of a residence permit in accordance with the law, in particular Article
79.1.1 of the Migration Code.
All four applicants were arrested and taken into custody for alleged involvement in the so-called
Fetullahist Terrorist Organisation / Parallel State Structure following their arrival in Turkey.
Relying on Article 5 § 1 (right to liberty and security) and § 4 (right to have lawfulness of detention
decided speedily by a court), Article 3 (prohibition of inhuman and degrading treatment), and Article
13 (right to an effective remedy), the applicants complained, in particular, that their detention had
been unlawful, that their removal to Turkey had exposed them to a real risk of ill-treatment, and of a
lack of an effective remedy for their complaints. The first applicant also relied on Article 1 of
Protocol No. 7 to the Convention (procedural safeguards with regard to expulsion of aliens).
THE DECISION OF THE COURT…
Article 5 § 1
The applicants alleged that their detention and deportation to Turkey had not followed standard
extradition proceedings, had not been in accordance with domestic law, and had amounted to
extrajudicial rendition. The Court reiterated that Article 5 protects people against arbitrary
detention, and sets out the circumstances in which an individual can be detained.
The Court observed that they had all been detained on the basis of arrest warrants issued in Turkey
and that the first applicant had been arrested, detained and deported without any formal decision
having been taken. Concerning the other applicants, they had not been released pending processing
of their cases, as per court orders, but had been instead handed over to State Migration Service
officers.
The Court held that their removal to Turkey had been in circumvention of formal extradition
proceedings and of the relevant international safeguards. In particular it highlighted that the first
applicant had been removed from Azerbaijan in the absence of any formal extradition proceedings;
that the other applicants had not been able to benefit from the protection afforded by such
proceedings; that the third and fourth applicants had been removed to Turkey while their
extradition proceedings had been still pending; and that the second applicant had been removed to
Turkey despite a court order that he should not be extradited.
Overall, the Court held that the removal of the applicants had been a disguised extradition and their
deprivation of liberty had been part of an extra-legal transfer in contravention of domestic and
international law.
There had been a violation of Article 5 § 1 of the Convention.
Article 3
The Court emphasised it did not itself examine actual asylum applications or verify how the States
honour their obligations under the Geneva Convention. Its main concern was whether there were
effective protections against arbitrary forcible return (refoulement) to the country from which an
individual had fled. It noted that the applicants had all applied for asylum in Azerbaijan.
Referring to its findings that the applicants had been transferred extra-legally to Turkey and that the
risk of ill-treatment was not examined, the Court adjudged that they had been denied protections
against arbitrary refoulement, leading to a violation of Article 3.
Other articles
Given its above findings, the Court held that it was not necessary to examine the complaints under
Article 5 § 4, Article 13 and Article 1 of Protocol No. 7.
Just satisfaction (Article 41)
The Court held that Azerbaijan was to pay the applicants 9,000 euros (EUR) each in respect of
non-pecuniary damage.
