Muhammet Samed Demir
The power of expulsion is recognized as one of the sovereign rights of a state under international law. Arbitrary and unlawful deportations and refoulements can cause major humanitarian crises. In the Muhammad and Muhammad v. Romania judgment, the Court emphasized that the Convention does not guarantee the right of a foreigner to enter and reside in a country. The right to control this is left to states. While the main text of the European Convention on Human Rights does not contain an explicit provision regarding the deportation of foreigners, Protocols 4 and 7 to the Convention contain provisions on the deportation of foreigners. Protocol No. 4 prohibits the collective deportation of foreigners, and Protocol No. 7 provides procedural safeguards for the deportation of foreigners. In a number of cases, the Court has held that the right to a fair trial under Article 6 of the Convention does not apply to applications regarding the deportation of foreigners. Therefore, Protocol No. 7 has filled an important gap for human rights by providing procedural regulation regarding the deportation of foreigners.
Article 1 of Protocol No. 7 to the European Convention on Human Rights places limitations on the deportation of foreigners who are lawfully resident in a country. In the Yıldırım v. Romania decision, the European Court of Human Rights (ECHR) held that lawful residence must adhere to the domestic laws of the relevant state. In the A.M. and Others v. Sweden decision, the Court ruled that a foreigner who had never been granted a residence permit could not apply to a court under this protocol.
In order to deport a foreigner, there must be a decision taken in accordance with the law. The term “law” should be interpreted broadly. In the Bolat v. Russia decision, the court held that there was no lawful decision due to the absence of any court decision ordering the applicant’s deportation. In the Ahmed v. Romania decision, the Court found that Romanian domestic law lacked control systems against the arbitrary practices of the authorities and ruled a violation.
Deported foreigners have the right to be informed of the charges against them. Failure by contracting states to consider this requirement should be condemned. The Protocol provides that the foreigner shall be allowed to present reasons against expulsion, to have their case re-examined, and to be represented before the designated authority. In the Nolan and K. v. Russia case, the Court held that the respondent State’s refusal to allow the applicants to present evidence violated the Protocol. In the Nowak v. Ukraine case, the Court found that issuing the deportation order to the applicant within the last ten days and in a foreign language constituted a violation of the Convention.
A foreigner can be deported without exercising the rights under paragraphs (a), (b), and (c) of the first paragraph of Article 1 of Protocol No. 7 to the European Convention on Human Rights if public order and national security are at stake. In Nolan and K. v. Russia, the Court held that the applicant should have benefited from procedural safeguards as no evidence had been submitted that the interests of national security and public order were at stake.
In the Georgia v. Russia case, the Court considered the Russian government’s issuance of more than 4,600 deportation decisions as a violation of Protocol No. 4. The protocol prohibits mass deportations. However, what should be understood here is not just the sheer number. For example, in Sharifi and Others v. Italy and Greece, there were only four applicants and four deportations. The Court, without making any distinction, also considered the deportation of these four persons as a violation of Protocol No. 4.
In Khan v. Germany, the Court held that the deportation of the applicant did not violate the Convention and that deportation was within the discretionary power of the State. Although the actual text of the Convention does not include a specific provision on deportation, these practices may sometimes violate various articles of the Convention. In Akkad v. Turkey, the Court held that Article 3 of the Convention, which regulates the prohibition of torture, had been violated. In the concrete case, the applicant was apprehended at the Turkey-Greece border and forcibly returned to Syria under the pretext of voluntary repatriation. According to the data, there is no deportation order for the applicant. Although states have discretionary powers in deportation, sending individuals to a war zone is incompatible with the spirit of the Convention. In Bader and Others v. Sweden decision, the court held that sending a foreigner seeking asylum to a country where the right to a fair trial does not exist and where the death penalty is practiced would violate Articles 2 and 3 of the Convention. In Soering v. the United Kingdom, the applicant stated that he would be sentenced to death for the crimes he had committed if he were deported. Despite assurances provided by the United States, the applicant claimed that he would be subjected to the death row. Based on the evidence confirming this fact, the court concluded that deportation would violate Article 3 of the Convention.
In conclusion, the European Court of Human Rights has emphasized in its decisions that deportation practices may violate principles such as the right to life and the prohibition of torture, which are stated in the original text of the Convention. Additionally, the failure of contracting states to comply with the procedural safeguards set forth in the Additional Protocols to the Convention renders deportation practices unlawful and in breach of the Convention.
- The decision numbers of the european court of human rights mentioned in the text are as follows; Muhammad and Muhammad v. Romania 80982/12, Yildirim v. Romania 21186/02, A.M. and Others v. Sweden 38813/08, Bolat v. Russia 14139/03, Ahmed v. Romania 34621/03, Nolan and K. v. Russia 2512/04, Nowak v. Ukraine 60846/10, Georgia v. Russia 13255/07, Sharifi and Others v Italy and Greece 16643/09, Khan/Germany 38030/12, Akkad v. Turkıye 1557/19, Bader and Others v. Sweden 13284/04, Soering/UK 14038/88
- Guide to Article 1 of Protocol No. 7 to the European Convention on Human Rights.
- İC Meltem. Avrupa İnsan Hakları Mahkemesi Kararları Işığında Yabancılar ve Uluslararası Koruma Kanunu’nda Aralık 2019’da Yapılan Bazı Değişikliklerin Değerlendirilmesi