Judicial review of the detention order

Turkey

Country Report: Judicial review of the detention order Last updated: 30/11/20

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Independent

The decision to detain an international protection applicant during the processing of his or her claim must be communicated in writing.[1] The notification letter must provide the reasons justifying detention and the length of detention. The applicant must also be notified of the legal consequences of the detention decision and available appeal procedure. However, the LFIP does not impose a requirement to provide this information in writing.

In practice, due to limited familiarity with the rights of lawyers on the part of Removal Centres’ staff, applicants and their legal representatives rarely receive a copy of the removal decision and/or the detention order so as to know when the time limit for appeal starts running,[2] or receive documents without official signatures and seals. In other cases, lawyers are prevented from examining the case files of their clients. In Hatay and Adana, access to files was easier in 2019 but it was difficult to get copies of necessary information.[3] Lawyers understand this as a measure to prevent them from quickly intervening in detention cases. In Erzurum, people have reported being insufficiently informed of the reasons for their detention and their case.[4]

While there is no requirement of automatic periodic review of the detention decision by either the judiciary or DGMM itself in relation to detention in the international protection procedure,[5] pre-removal detention must be reviewed by the governorate on a monthly basis.[6]

The decision to detain can be challenged at the competent Magistrates’ Court through a non-suspensive appeal.[7] The law does not set out a time limit for appealing detention.

The competent Magistrates’ Court judge must decide on the judicial review application within 5 days. The decision of the Magistrates’ Court is final and cannot be appealed. However, there are no limitations on new appeals by the applicant to challenge his or her ongoing detention.[8]

According to lawyers’ observations, the poor quality of detention review by Magistrates’ Courts persists as a problem. In the Izmir, Istanbul, Aydın, Hatay, Gaziantep, Adana, Kayseri and Erzurum Removal Centres,[9] appeals against detention are rejected as a general rule.[10] In Hatay, about 200 appeals against detention are filed per year.[11] In Izmir lawyers are concerned about a ‘systemic practice’ in courts to reject administrative detention reviews. One lawyer has applied to the Constitutional Court based on the lack of careful assessment of the magistrate court.[12] In Van appeals against administrative detention are usually rejected but there was a case of an Iranian client who appealed against his administrative detention decision twice. The first appeal was rejected but the second appeal was accepted after a month. The reason for the acceptance was ‘detention has already taken long enough’ which is not a criterion stated in the law. When the lawyer went to the removal centre to release their client they were informed that the client had been sent to the border to be deported. However, the deportation was stopped at the last minute.[13] In Antakya there have also been no positive decisions on administrative detention and concerns that there is a ‘systematic’ legal practice on this issue.[14]

One of the rare positive decisions in this area was issued by the Magistrates’ Court of Kirklareli on the application of Rida Boudraa, the first applicant who obtained an interim measure from the Constitutional Court. The lawyer of the applicant appealed again against the administrative detention decision after the issuance of the judgment of the Constitutional Court and the Magistrates’ Court accepted the application on the ground that “the applicant has a legal domicile and family life in Turkey and there is no risk of fleeing the country.”[15] In a 2018 case, the 2nd Magistrates’ Court of Edirne quashed a detention order on the basis that detention for over 6 months exceeded reasonable time limits.[16]

Flexibility with regard to detention review may also depend on the Magistrates’ Court examining the appeal. In the case of a person detained for six months, the appeal was denied by the Ankara Magistrates’ Court, which ordered a prolongation of detention for six more months,[17] but following a separate appeal the Çanakkale Magistrates’ Court ordered his release and imposed reporting obligations.[18]

One crucial gap in the LFIP provisions on detention concerns remedies against detention conditions.[19] On 11 November 2015, the Constitutional Court ruled in the K.A. case that the mechanisms set out in LFIP “failed to foresee any specific administrative or judicial remedy which sets the standards of detention conditions and includes monitoring and review of the conditions” so as to ensure review of compatibility with relevant standards.[20] The Court reiterated this position in several cases in 2016,[21] which – similar to K.A. – concerned detention conditions in the former Removal Centre of Istanbul (Kumkapı).

Finally, where administrative detention is unlawful, the applicant can lodge a compensation claim (Tam Yargı Davası) before the Administrative Court.[22]

 


[1] Article 68(4) LFIP.

[2] Information provided by a lawyer of the Izmir Bar Association, March 2018. This has been acknowledged as relevant to procedural obligations of the authorities: District Court of Izmir, Decision 2017/511-5711, 6 April 2017.

[3] Information provided by a lawyer of the Antakya Bar Association, February 2018; a lawyer of the Adana Bar Association, February 2018.

[4] Turkish Human Rights and Equality Commission, Erzurum Geri Gönderme Merkezi Ziyareti, 2018/16, December 2018, para 47.

[5] Article 68(6) LFIP only states that detention may be lifted at any point.

[6] Article 57(4) LFIP.

[7] Article 68(7) LFIP; Article 96(6) RFIP. In November 2015, the High Council of Judges and Prosecutors passed a decision to designate the 2nd Chamber of each Magistrates’ Court responsible for appeals against administrative detention decisions within the scope of LFIP.

[8] Article 68(7) LFIP; Article 96(6) RFIP.

[9] Information provided by a lawyer of the Antakya Bar Association, February 2018; a lawyer of the Adana Bar Association, February 2018; International Refugee Rights Association, February 2018; a lawyer of the Kayseri Bar Association, February 2019; a lawyer of the Istanbul Bar Association, February 2019.

[10] See e.g. 2nd Magistrates’ Court of Gaziantep, Decision 2018/7568, 13 December 2018; Decision 2018/1773, 6 March 2018; Decision 2018/1776, 6 March 2018; 2nd Magistrates’ Court of Van, Decision 2018/6023, 27 November 2018; Decision 2018/6166, 7 January 2018; 2nd Magistrates’ Court of Antakya, Decision 2018/ 4287, 27 November 2018.

[11] Information provided by a lawyer, February 2019.

[12] Information provided by a lawyer from the Izmir Bar Association, March 2020.

[13]Information provided by a lawyer from the Van Bar Association, March 2020.

[14] Information provided by a lawyer from the Antakya Bar Association, March 2020.

[15] Magistrates’ Court of Kirklareli, Decision 2016/2732, 24 October 2016.

[16] 2nd Magistrates’ Court of Edirne, Decision 2018/2746, 3 July 2018.

[17] Information provided by a lawyer of the Ankara Bar Association, January 2019.

[18]  Magistrates’ Court of Çanakkale, Decision 2018/3777, 12 October 2018.

[19] For a discussion, see Refugee Rights Turkey, A pressing need: The lack of legal remedy in challenging material conditions of foreigners under administrative detention in Turkey, January 2017, available at: https://bit.ly/2WkCcZm.

[20] Constitutional Court, K.A., Application No 2014/13044, Judgment of 11 November 2015. The Constitutional Court referred to Article 17 of the Turkish Constitution, which corresponds to Articles 3 and 13 ECHR.

[21] Constitutional Court, F.A. and M.A., Application No 2013/655, Judgment of 20 January 2016; A.V., Application No 2013/1649, Judgment of 20 January 2016; T.T., Application No 2013/8810, Judgment of 18 February 2016; A.S., Application No 2014/2841, Judgment of 9 June 2016; I.S., Application No 2014/15824, Judgment of 22 September 2016.

[22] Constitutional Court, B.T., Decision 2014/15769, 30 November 2017.

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of main changes since the previous report update
  • Introduction to the asylum context in Turkey
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • Temporary Protection Regime
  • Content of Temporary Protection