Some Reviews on Sherapat Yagmyrova Decision* of Constitutional Court
Esra Dardoğan Kibar, Doğa Elçin, Ogün Erşan AydınlıConstitutional Court has delivered a judgement dealing with her assortment that was put forward by Sherapat Yagmyrova (Yagmurova) including violation of private and familial life, principle of equality, cruel treatment and torture for her deportation, and violation of personal liberty and security resulted from her being kept under detention. In this judgement, due to violation of the applicant’s private and familial life hasn’t been based upon any ground; and her assessment on violation about equality principle and interdiction of discrimination also doesn’t have any ground; and also, her assessment on personal liberty and security would not be admitted since not being exhausted of domestic remedies. The aforementioned application judgement calls attention due to both its current date and the abundance of assertion of violation and it also reflects the latest attitude of the Constitutional Court on various questions. On the other hand, since the subject of decision includes a controversial topic such as being deported due to a communicable disease has been considered to be evaluated. In this study, the applicant’s assertion has been evaluated in the light of both previous adjudgments of the Constitutional Court and European Court of Human Rights. Within this scope, the judgement of the Constitutional Court about Sherapat Yagmyrova (Yagmurova) has been evaluated and the subjects dealing with application have been taken into account.
Anayasa Mahkemesi’nin Sherapat Yagmyrova Kararı* Üzerine Bazı Değerlendirmeler
Esra Dardoğan Kibar, Doğa Elçin, Ogün Erşan AydınlıAnayasa Mahkemesi, 2020 yılında Sherapat Yagmyrova (Yagmurova) tarafından, kendisinin sınır dışı edilmesi nedeniyle özel ve aile hayatına saygı hakkının, eşitlik ilkesinin, kötü muamele ve işkence yasağının; idari gözetim altında tutulma nedeniyle kişi hürriyeti ve güvenliği hakkının ihlal edildiği iddiasıyla yapılmış olan bireysel başvuruya ilişkin bir karar vermiştir. Bu kararda başvurucunun özel hayat ve aile hayatına saygı hakkının ihlal edildiğine ilişkin iddiası açıkça dayanaktan yoksun olması; eşitlik ilkesinin ve ayrımcılık yasağının ihlal edildiğine ilişkin iddiası da benzer şekilde açıkça dayanaktan yoksun olması; kişi hürriyeti ve güvenliği hakkının ihlal edildiği iddiası ise kanun yollarının tüketilmemesi sebebiyle kabul edilemez olarak değerlendirilmiştir. Söz konusu bireysel başvuru kararı hem güncel tarihli olması hem ihlal iddialarının çokluğu hem de Anayasa Mahkemesi’nin çeşitli konulardaki son yaklaşımlarını yansıtması nedeniyle dikkat çekmektedir. Öte yandan karara konu olay bulaşıcı hastalık nedeniyle sınır dışı edilme gibi tartışmalı bir konuyu da içermesi sebebiyle karar incelemeye değer görülmüştür. Çalışmada başvurucunun iddiaları hem Avrupa İnsan Hakları Mahkemesi’nin içtihatları hem de Anayasa Mahkemesi’nin daha önce verdiği kararlar ışığında ele alınmıştır. Bu kapsamda Anayasa Mahkemesi’nin Sherapat Yagmyrova (Yagmurova) kararında vermiş olduğu karar değerlendirilerek başvuruya konu edilen iddialar hakkında çeşitli değerlendirmeler yapılmıştır.
In our paper, the first issue to be analysed has been the alleged violation of the right to respect for private and family life embodied and guaranteed in articles 20 and 41 of the Constitution.
The applicant maintained that her deportation was in breach of the right to respect for private and family life by invoking that her deportation and removal to Turkmenistan would result in rupture of her family ties with her daughters and in damages in family integrity. This allegation has been declared inadmissible by the Turkish Constitutional Court (Court) as being manifestly ill-founded. Concerning the alleged violation of the right to respect for family life, in the absence of evidence about the existence of additional relationship of dependence between the applicant and her adult daughters, the normal emotional family ties have been considered by the Court as insufficient to motivate the guarantees embodied in articles 20 and 41. On the other hand, the Court declared that the applicant couldn’t prove that she has established in Turkey strong ties to be protected in the sphere of the right to respect for private life.
Our study on alleged violation of the right to respect for family life due to deportation is focused on the definition of family life in the jurisprudence of Court and the European Court of Human Rights (ECHR). The restrictive view adopted by the ECHR in conceptualizing the family life in the sphere of article 8 of the European Convention of Human Rights (Convention) excludes, in migration cases, the relationship between parent and adult children unless they can demonstrate additional elements of dependence. This view which constitutes a model for the Court is analysed and discussed in consideration of relevant cases. A previous judgment rendered by the Court may be considered as adopting less rigid approach in comparison to dominant approach in the jurisprudence of ECHR.
The assessment of the alleged violation of the right to respect to private life appears to play a somewhat secondary role by regards to the examination of deportation cases by the ECHR for the purposes of the guarantees provided by the article 8 of the Convention. The essential subject of discussion in the decision of Court concerning the right to respect to private life is the emphasizing of the lack of evidence in the application file for long-time and “lawful” residence in Turkey. This issue has been analysed by taking into consideration relevant decisions of the ECHR.
In this study, deportation from the standpoint of public health and on which cases will communicable diseases be considered as justification of deportation has been discussed. According to World Health Organisation, the possibility of contraction of an infectious disease of foreigners, whose standard of living is low and who fall short of treatment opportunity and vaccination in the origin, transit, destination country as well as other foreigners in the country who are in the need of international protection, is higher. Research have been shown that the risk of contraction to an infectious disease spread from the refugees among the citizens of the country is lower in comparison with the citizens in the country.
Public health and security are the most encountered reasons of deportation in enforcement, among others. Nevertheless, it is emphasized that deportation of a foreigner who has an infectious disease should be considered as a last resort. Because during the execution of deportation, the opportunity of treatment has been more difficult and thus the possibility of contamination is higher.
Although Administrative Court has searched deficient examination on deportation with the reasons of public health, the reason have not been based on concrete events and proof, it has been understood that the deportation judgement about the applicant with the public health reasons doesn’t put forward any concrete data on infringe of prohibition of equality and so the assertion of the applicant hasn’t been based on any principle.
The applicant was taken under administrative detention to be deported. The administrative detention decision was appealed, but the appeal was dismissed. The decision regarding this appeal is final judgement according to Turkish law. Later, the administrative detention decision was lifted by the administration. The applicant also alleged that her right to freedom and security of person was violated due to this administrative detention. However, the Court stated that the person could claim this violation in administrative courts. Therefore, the Court rejected the request with the reason of the legal remedies were not exhausted. Considering the previous decisions of the Court, it has decided that if the appeal against the decision of administrative detention is rejected, individual application can be filed. However, in this decision, the Court stated that it was possible to proceed to the administrative court since the administrative detention was terminated by the administration. However, in our opinion, in the lights of previous decisions of the Court, there is no legal interest of applying to the administrative court since there is a final court decision since administrative courts would be bound by final judgement on administrative detention appeal.
