ECHR judgment of 11 June 2019 in the case of Ozdil and Others v. Republic of Moldova (application No. 42305/18).
In 2018, the applicants were assisted in preparing the application. Subsequently, the application was communicated to the Republic of Moldova.
The case has successfully examined the application about the illegal transfer of applicants to their state of origin in violation of the requirements of the legislation of the Republic of Moldova or international law. The case contained a violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicants, Turkish citizens, were teachers in a network of private schools in the Republic of Moldova. Following a public statement by the Turkish authorities that these schools belonged to the Fetullah Gulen movement, allegedly responsible for the coup attempt in Turkey in 2016, and these teachers were terrorists, the applicants applied for asylum. Before decisions on their applications were made, the applicants were detained and sent the same morning on a charter flight to Turkey. The applicants' family members were later denied asylum seekers for reasons related to national security, and only later learned that the applicants were in Turkey.
QUESTIONS OF LAW
(a) Admissibility. The applicants were relocated from the Republic of Moldova to Turkey on the morning of September 6, 2018, by members of the secret services of the Republic of Moldova and Turkey. The authorities of the Republic of Moldova did not confirm that in the indicated period of time the applicants would have been notified of any decisions concerning them: either decisions on applications for asylum or decisions on their expulsion. In this connection, the Court does not agree that, in the special circumstances of the present case, the applicants ’appeal to the courts of the Republic of Moldova could, according to the Government, be regarded as an effective domestic remedy that should have been used by the applicants after they were transferred to Turkey.
(b) Merits. Regarding compliance with Article 5 § 1 of the Convention. The drafters of the Convention strengthened the protection of individuals from arbitrary deprivation of liberty by guaranteeing a number of substantive rights that were designed to minimize the risk of arbitrariness by means of a judicial review of the detention of a person and establishing the responsibility of the authorities for this action. Although the investigation of terrorism-related offenses is undoubtedly a particular problem for the authorities of the States parties to the Convention, this does not mean that they have full discretion in accordance with Article 5 of the Convention to detain suspects and detain them without effective control by the courts of the respondent state and by the controlling convention bodies as a final instance, as if the authorities of the respondent state did not consider that there had been a crime related to terrorism.
On September 6, 2018, the Secret Service of the Republic of Moldova issued several press releases confirming that this service was preparing and conducting the operation. According to the same press releases, the operation was carried out in collaboration with the secret services of other countries. The Government did not deny in their observations before the Court that the Turkish Secret Service was involved in the applicants' case. Apparently, the authorities of the Republic of Moldova deliberately transferred the applicants directly to the authorities of Turkey, and the case materials also indicated that the joint operation of the secret services of the Republic of Moldova and Turkey had been prepared well before September 6, 2018. The circumstances of the case also confirmed the fact that the contested operation It was planned and organized in such a way as to prevent the applicants from preparing and so that they did not have the time and opportunity to defend themselves.
Decisions on the issue of asylum were dated September 4 and 5, 2018. The reliability of these dates was undoubtedly doubtful, and this information should be treated with caution in view of the testimony of the head of the Bureau of Migration and Asylum of the [Ministry of Internal Affairs] of the Republic of Moldova of September 7 2018, because she did not know what happened to the applicants, and the Bureau did not participate in this process.
Considering the circumstances of the case as a whole and taking into account the amount of evidence confirming one version of the events, as well as the speed with which the authorities of the Republic of Moldova acted, the Court concluded that the deprivation of liberties of the applicants on 6 September 2018 was neither legal nor necessary within the meaning of subparagraph "f" of paragraph 1 of Article 5 of the Convention, it was arbitrary. The deprivation of the applicants' liberty became illegal due to the transfer of persons from the territory of the respondent Government to Turkey, because in connection with this the applicants were not provided with all the guarantees provided for by the legislation of the Republic of Moldova and international legislation.
In the case there was a violation of the requirements of paragraph 1 of Article 5 of the Convention (adopted unanimously).
Regarding compliance with article 8 of the Convention. The applicants lawfully lived for a long time in the Republic of Moldova, worked, created families there, some of the applicants with citizens of the Republic of Moldova. The expulsion of applicants from the territory of the Republic of Moldova deprived them of the opportunity to integrate into Moldovan society and substantially destroyed their private and family life.
A person against whom measures based on national security are applied should not be deprived of all guarantees against arbitrariness. This person should have, among other things, the opportunity to ensure that the measure complained of is examined by an independent and impartial public authority authorized to examine all relevant issues of fact and law in order to determine the lawfulness of the measure applied to the person and prevent possible abuse by the authorities. Any person must have access to the adversarial procedure in the appropriate supervisory authority in order to present their position and refute the arguments of the authorities.
The legislation of the Republic of Moldova contains rules governing expulsion and extradition. Nevertheless, the applicants were displaced from the country by smuggling in violation of all guarantees provided for by the legislation of the Republic of Moldova and international law. Since this forced displacement, which led to a radical termination of the applicants' private and family ties, did not have sufficient legal grounds, it was not “prescribed by law”.
No complaints were filed against the applicants for any offenses committed on the territory of the Republic of Moldova or in another country. Apart from the above general grounds, the authorities of the Republic of Moldova did not provide the applicants with any other details. The European Court emphasizes the fact that the courts of the Republic of Moldova refused to consider the applicants' complaints about the decisions to refuse to grant them asylum and their recognition as “undesirable persons” solely on formal grounds. If the events had developed differently, the courts of the Republic of Moldova would not have been able in any case to consider the real reasons for the expulsion of the applicants, since the legislation of the Republic of Moldova did not allow the judges to provide a secret service document that served as the basis for the applicants to move to Turkey.
In the case there was a violation of the requirements of Article 8 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded each of the applicants EUR 25,000 in respect of non-pecuniary damage.