Judicial review of the detention order

Türkiye

Country Report: Judicial review of the detention order Last updated: 17/08/22

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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 İzmir, İstanbul, 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 İzmir 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 Kırklareli 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 Türkiye 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 İstanbul (Kumkapı).

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

In İstanbul in 2021 the 15th administrative court of İstanbul started to receive applications concerning deportations and international protection applications due to the high workload at the 1st Administrative Court.  Therefore, there is a risk of a difference of opinion on the same subject matter between the two courts. The first administrative court of İstanbul in particular had some positive practices, especially during the period of prescription in deportation cases. There is still no clear consensus on this issue between courts, but if a conflict arises between these two courts in this issue, it is unclear how the higher courts will handle this issue.

In 2021, although one stakeholder saw an improvement in knowledge and the quality of judgments overall,[23] there were continued inconsistencies in court decisions.

In Van in 2021 decisions on appeals for administrative detention were reportedly superficial with frequent small mistakes in final rulings. In one application, it said ‘Iraqi’ for an Afghan national. This showed a continuation of ‘chronic problems’ regarding the quality of judgments. One stakeholder reported they had stopped appealing against administrative detention decision as none were successful. There were reportedly more positive results for appeals against the deportation decision.[24] When irregular migrants are apprehended, an administrative sanction, a fine between 3700-4200 TL, is imposed. One stakeholder files an appeal against these fines. For example, an administrative fine was set on a husband and wife who were members of the Iranian communist party. The court annulled the penalty for the woman but not for the man. Appeals against their deportation orders were accepted, and their asylum applications were received but the fine was not canceled. An application was lodged before the Constitutional Court regarding the fine in 2021.[25]

Another stakeholder conformed that administrative detention cases are generally upheld by the criminal court of peace. However, if the administrative court terminates the deportation order, the criminal court of peace judges immediately issue the decision and end the administrative detention. The persons can take up their cases and apply to the Constitutional Court under an individual application. The Constitutional Court has been influential in this case and made decisions on compensatory claims about detention conditions in 2021.[26]

In 2021, an applicant appealed against the administrative detention issued based on “breach of public order” claims. The peace court accepted applicant’s case highlighting the principal of presumption of innocence and ruled that the mere existence of G-87 restriction code is not a legitimate reason for administrative detention.[27]

 

 

 

[1] Article 68(4) LFIP.

[2] Information provided by a lawyer of the İzmir Bar Association, March 2018. This has been acknowledged as relevant to procedural obligations of the authorities: District Court of İzmir, 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 İstanbul 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 İzmir 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 Türkiye, A pressing need: The lack of legal remedy in challenging material conditions of foreigners under administrative detention in Türkiye, 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.

[23] Information provided by a stakeholder, April 2022.

[24] Information provided by a stakeholder, May 2022.

[25] Information provided by a stakeholder, May 2022.

[26] Information provided by a stakeholder, May 2022.

[27] 2nd Criminal Peace Court of Malatya, decision number 2021/7202.

Table of contents

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