Geri Gönderme Merkezlerindeki Fiziki Koşullara Karşı Başvuru Yolları
Merve AkbulutYabancılar ve Uluslararası Koruma Kanunu geri gönderme merkezlerine ilişkin düzenleme getirmekle birlikte, bu merkezlerdeki koşullardan kaynaklı ihlallere yönelik bir başvuru yolu öngörmemiştir. Bununla beraber, Anayasa Mahkemesi, tam yargı davasının bu merkezlerde yaşanabilecek ihlallere yönelik etkili bir iç hukuk yolu olduğuna karar vermiştir. Çalışmamızda, Türk hukukunda var olan ve geri gönderme merkezlerindeki fiziki koşullardan kaynaklı ihlallere karşı başvurulan yargı yolları ve bu yolların etkinliği incelenmiştir.
Remedies Against Material Conditions at Removal Centers
Merve AkbulutAlthough Law on Foreigners and International Protection has providesregulations on removal centers, it hasn’t envisaged any remedy for violation arising from the conditions in these centers. However, The Constitutional Court ruled that Damages as remedy against administrative authorities is an effective remedy for violations that might occur in these centers. In this study, remedies in Turkish Law, which were applied against violations occur in the removal centers and these remedies’ effectiveness were examined.
Where foreigners under administrative detention were held or remedies against conditions of detention was not regulated in Law on Foreigners and International Protection (LFIP). Because of there is no legislation on remedies against conditions of detention, ECtHR held many times that Turkey is to pay damages. The very first judgment of ECtHR held that there has been a violation of Art.13 of ECHR in conjunction with Art. 3 of ECHR because of the absence of effective remedies to complain about the material conditions of detention is Yarashonen v. Turkey Judgment. In the case, Turkish Government claimed that the applicant could raise his complaints by bring an action for compensation before the administrative courts as provided for Art.125 of the Turkish Constitution and section 2(1) (b) of the Administrative Procedure Act which regulated full remedy action. ECtHR pointed out that if conditions of detention are breach of Art.3, a domestic remedy must capable of putting an end to the ongoing violation of the prohibition of inhuman or degrading treatment. Otherwise, compensation of occured violation legitimizes the inhuman and degrading treatment. However, the Court stated that the Government must prove its claims, which remedies as provided for Art.125 and Art.2 (1)(b) is practically effective with examples from the case-law of administrative courts but Government couldn’t submit any judicial or administrative decisions related to this issue. The Court, for these reasons held that there has been a violation of Art.13 in conjunction with Art.3. The very first judgment of the Turkish Constitutional Court related to the absence of effective remedies to complain about the material conditions of detention is Rıza Boudraa Application. But in this application, the Constitutional Court only examined Art.17 of Constitution and did not consider the existence of the effective domestic remedies in the context of Art.40 of the Turkish Constitution. The second judgment of the Constitutional Court related to the matter is F.A. and M.A. Application. The applicants claimed that there is no domestic remedy for the material conditions at Kumkapı Removal Center at the relevant time. Ministry of Interior put forward the claims in Yarashonen Case before ECtHR and demanded the rejection of the application for the reason of the non-exhaustion of domestic remedies. The Court, for the first time, examined the existence of effective domestic remedies in the context Art.40 in conjunction with Art.17. The Court accepted the principles in Yarashonen Judgment and stated that the Government did not submit any decisions which prove the domestic remedy as provided for Art.125 is capable of preventing ongoing violation of the right not to be subjected degrading treatment in Art.17 or compensating the damage. The court held that there is no effective domestic remedy so has been a violation of Art.40 in conjunciton with Art.17. These judgments made before LFIP prompts the legislator to regulate the administrative detention and removal centers. Despite this LFIP does not provide any provisions on remedies for material conditions at removal centers. After the entry into force of LFIP, the first judgment of the Constitutional Court related to supervision of material conditions of detention is K.A. Application. The applicant claimed that the material conditions of removal center was inhumane and there is no domestic remedy to improve conditions or compensate damage caused by material conditions, so there is violation of Constitution Art.17 and Art.20. The Government put forward the claims in Yarashonen Case before ECtHR. The Constitutional Court pointed out that there is no domestic remedy to supervise material conditions of detention and to improve material conditions or to end detention if it’s necessary and to compensate damage. In this judgment, the Constitutional Court decided first time that LFIP does not provide any remedy related to supervise the material conditions of detention. But the Constitutional Court has changed its decision with B.T. Application. The applicant claimed that his mental health has damaged because of material conditions of removal center and there is no remedy provided related to condition of detention and there has been violated Art.17 and Art.20 of Constitution. The Constitutional Court pointed out that because of the end of the violations compensation for damage is the only effective remedy for who have been released from removal center. The Court stated that the decision related to held is administrative decision so full remedy action which regulated in section 2(1) (b) of the Administrative Procedure Act is an effective remedy to compensate damages. In addition, administrative courts have an advantage in considering the situation. The Court also emphasized that the lack of administrative courts’ decisions related to the compensation of damages caused by conditions of removal centers does not mean that full remedy action is not an effective remedy. Based on these reasons, the Court ruled by a majority of votes that full remedy action is an effective remedy and due to the non-exhaustion of this remedy the application is inadmissible. Judge Serruh Kaleli emphasized in his dissenting opinion that to be stated that the violation is end because detention is end is against the case law of ECtHR and to justify the inhumane treatment. In addition that, to decide whether a remedy is effective or not, it should been searched a set of precented decisions that determined the violations in similar cases. The Court has examined the application only in the scope of compensation of damages in its B.T. Judgment. It can be said that the reason of this approach is that the violation has end. However, it’s unacceptable to examine in the scope of only compensation of damages such an application which changes the case law of the Court. Moreover, as stated in dissenting opinion, there is no evidence that this remedy is capable of compensating of damages. Since, Government has already submitted this remedy both before ECtHR and Constitutional Court but not submitted any court decision which is related to compensate damages caused by material conditions at removal centers. At the time of B.T. judgment, while this situtation continued Court has ruled based on an assumption. Furthermore, as stated before, in the case of violation of Art.3 of ECHR, ECtHR emphasizes that the remedy must be in particular capable of preventing ongoing violation. Nevertheless, the Constitutional Court has not examined how this remedy prevents ongoing violation. For these reasons it’s not possible to agree with this decision and despite this decision there is no effective remedy in Turkish legal system to complain about material conditions of removal centers.