Expulsion of foreign Muslims to their country. The ECtHR was not convinced that they were at risk of ill-treatment
JUDGMENT
Μ.Ν. and others v. Turkey 21.06.2022 (app. no. 40462/16)
SUMMARY
The case 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 author ities.
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 final1 or until
further notice.
PROVISIONS
Article 3
Article 13
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.
THE 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 organisation
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.
