The subject of the study is the individual application made to the Constitutional Court by immigrants in Turkey who hold the status of refugees and asylum seekers, claiming violations of their fundamental rights and freedoms, and the decisions made by the Constitutional Court regarding which fundamental rights and freedoms were violated as a result of these applications.
This study is significant as it provides a comprehensive perspective on the fundamental rights and freedoms violations experienced by refugees and asylum seekers in Turkiye, whose numbers have rapidly increased in recent years due to their legal status.
In the study, decisions from the Constitutional Court’s official website were examined using the decision information database. The keyword search function was employed with the terms “refugee,” “asylum seeker,” and “migrant” to identify relevant individual application decisions. Among these decisions, violation rulings were selected and analyzed using the descriptive analysis method.
At the conclusion of the study, it was observed that, based on the individual applications submitted by refugees and asylum seekers, the Constitutional Court has issued violation rulings concerning the prohibition of ill-treatment under article 17/3 of the 1982 Constitution, the right to life under article 17/1, the right to liberty and security under article 19, the right to respect for private and family life under article 20, and the right to a fair trial, including the right of access to court under article 36, as well as the right to an effective remedy under article 40.
For over the past decade, Turkey has faced a significant migration movement due to wars/civil wars or regime pressure/change in the neighboring regions. Migrants entering Turkey regularly or irregularly under refugee or asylum-seeker status have filed individual applications to the Constitutional Court, alleging various human rights violations arising from the legality of administrative detention decisions, the unfavorable conditions of administrative detention, and the risks posed by deportation orders.
The subject of this study is to examine which fundamental rights and freedoms have been alleged to be violated by refugees and asylum seekers in their individual applications to the Constitutional Court in Turkey and which of these rights and freedoms the Constitutional Court has determined to be violated. Rather than addressing all fundamental rights and freedoms that refugees and asylum seekers may be subjected to as rights holders, this study specifically focuses on the fundamental rights and freedoms violated due to their detention, the issuance of administrative detention and deportation decisions against them, and the implementation of such decisions.
The aim of this study is to shed light on the human rights issues arising from migration by identifying the human rights violations faced by refugees and asylum seekers, who constitute a significant population in Turkey. This study is significant because it does not focus on a single violation of fundamental rights and freedoms due to the applicants’ refugee or asylum-seeker status but instead examines multiple violations holistically. Additionally, this comprehensive approach constitutes the original aspect of the study.
As a methodology, a search was conducted within the database of individual application decisions available on the official website of the Constitutional Court, using the keywords “refugee,” “asylum seeker,” and “migrant.” Among the retrieved decisions, those finding violations were selected and classified according to the fundamental rights and freedoms they concerned. The classified rights and freedoms were then analyzed using the descriptive analysis method under five main categories.
The study found that the Constitutional Court ruled as follows:
(i) The physical conditions in Removal Centers (GGM) did not meet the standards established by the CPT for “migrants under detention” and reached a level constituting “inhuman and degrading treatment”, thereby violating the prohibition of ill-treatment guaranteed under Article 17/3 of the Constitution.
(ii) The completion of Voluntary Return Request Forms without adhering to procedural safeguards rendered the applicant’s removal from the country neither voluntary nor informed. Additionally, the lack of an effective investigation into deaths occurring during irregular border crossings under official supervision constituted a violation of the right to life guaranteed under Article 17/1 of the Constitution.
(iii) Before the enactment of Law No. 6458 on April 11, 2014, the applicants’ deprivation of liberty lacked a legal basis. After the law’s enactment, failure to comply with the procedural safeguards provided by the law led to a violation of the right to personal liberty and security guaranteed under Article 19 of the Constitution.
(iv) The deportation decision failed to consider the applicant’s claims regarding the right to respect for family life, did not balance public interest with the right to family life, and did not assess the proportionality of the decision. As a result, the right to respect for family life, guaranteed under Article 20 of the Constitution, was violated.
(v) The rejection of applicants’ requests for legal aid due to the reciprocity condition in Law No. 6100 led to a violation of the right of access to a court, which falls under the right to a fair trial guaranteed by Article 36 of the Constitution.
(vi) The applicants’ detention conditions were inadequate, and they lacked an effective administrative or judicial remedy with a reasonable prospect of success. Before the enactment of Law No. 6458, detained applicants had no opportunity to challenge their detention due to legal gaps. Additionally, the applicants were deported through different procedures without adhering to the safeguards provided in the Voluntary Return Request Form. Furthermore, their claims that they would face a real risk to their right to life in their home country were not seriously evaluated. The legal actions filed against their deportation did not provide sufficient protection to prevent their removal from the country. Consequently, the Constitutional Court found a violation of the right to an effective remedy, as guaranteed under Article 40 of the Constitution.
Refugee, asylum seeker, migrant, individual application to the Constitutional Court, violation ruling.
