PROCEDURE

The case originated in an application (no. 40035/98) against the Republic of Turkey lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Iranian national, Mrs Hoda Jabari (“the applicant”), on 26 February 1998.

Before the Court the applicant was represented by Mr S. Esmer, a lawyer practising in Ankara (Turkey). The Government of Turkey (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

The applicant alleged, inter alia, that she would be subjected to a real risk of ill-treatment and death by stoning if expelled from Turkey and that she was denied an effective remedy to challenge her expulsion. She invoked Articles 3 and 13 of the Convention in respect of these two complaints.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court. Mr R. Türmen, the judge elected in respect of Turkey, withdrew from sitting in the case (Rule 28). The Government accordingly appointed Mr F. Gölcüklü to sit as an ad hoc judge (Article 27 § 2 of the Convention and Rule 29 § 1).

The Commission decided to apply former Article 36 of its Rules of Procedure (Rule 39 of the Rules of Court) indicating to the Government that it was desirable in the interests of the parties and the proper conduct of the proceedings not to deport the applicant to Iran pending the Commission’s decision. Following the entry into force of Protocol No. 11 and in accordance with Article 5 § 2 thereof, the Court confirmed the application of Rule 39 until further notice.

By a decision of 28 October 1999, the Chamber declared the application partly admissible.

The applicant and the Government each filed observations on the merits (Rule 59 § 1). The Chamber having decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine), the parties replied in writing to each other’s observations.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

In 1995, at the age of 22, the applicant met a man (“X”) in Iran while attending a secretarial college. She fell in love with him and after some time they decided to get married.

However, X’s family was opposed to their marriage. In June 1997 X married another woman. The applicant continued to see him and to have sexual relations with him.

In October 1997 the applicant and X were stopped by policemen while walking along a street. The policemen arrested the couple and detained them in custody as X was married.

The applicant underwent a virginity examination while in custody. After a few days she was released from detention with the help of her family.

In November 1997 the applicant entered Turkey illegally. In February 1998 the applicant went to Istanbul, from where she tried to fly to Canada via France using a forged Canadian passport.

When the applicant arrived at the airport in Paris, the French police found her to be in possession of a forged passport.

On 4 February 1998 the applicant was put on a plane for Istanbul. Following her arrival at Istanbul Airport at 1 a.m. on 5 February 1998 she was arrested by policemen on the ground that she had entered Turkey using a forged passport. Her passport was sent for examination.

On 6 February 1998 the applicant was transferred from a police station inside the airport to the Aliens Department of the Istanbul Security Directorate. She was brought before the Bakırköy public prosecutor on the ground that she had entered Turkey using a forged passport in contravention of the Passport Act 1950. The public prosecutor ordered her release, finding she had not entered Turkey of her free will. The applicant was handed over to the Istanbul Security Directorate with a view to her deportation. When the applicant realised that she was going to be sent to Iran she told the Aliens Department that she was an Iranian national. The applicant lodged an asylum application with the Aliens Department. The police rejected her application as it had been submitted out of time. The applicant was informed that under section 4 of the Asylum Regulation 1994 she should have lodged her application for asylum within five days of her arrival in Turkey.

According to the applicant, she was held in detention at the Aliens Department until 26 March 1998. Thereafter, following the intervention of the Ankara branch office of the United Nations High Commissioner for Refugees (UNHCR), she was accommodated at a hotel in Istanbul.

On 12 February 1998 a staff member of the UNHCR, with the permission of the authorities, interviewed the applicant about her asylum request under the 1951 Geneva Convention relating to the Status of Refugees (“the Geneva Convention”). On 16 February 1998 the applicant was granted refugee status by the UNHCR on the basis that she had a well-founded fear of persecution if removed to Iran as she risked being subjected to inhuman punishment, such as death by stoning, or being whipped or flogged.

On 8 March 1998 the applicant lodged an application with the Ankara Administrative Court against her deportation. She also asked for a stay of execution of her deportation.

On 16 April 1998 the Ankara Administrative Court dismissed the applicant’s petitions on the ground that there was no need to suspend her deportation since it was not tainted with any obvious illegality and its implementation would not cause irreparable harm to the applicant.

On 4 November 1998 the Ankara Administrative Court found that there was no actual risk of her being deported in view of the fact that she had been granted a residence permit pending the outcome of her application under the European Convention on Human Rights. The court found that it was not required to suspend the deportation order since no such order had yet been made.

II. RELEVANT LAW and practice

A. Administrative law provisions

Article 125 of the Turkish Constitution provides, inter alia: “All acts or decisions of the authorities are subject to judicial review ... If the implementation of an administrative act would result in damage which is difficult or impossible to compensate, and at the same time this act is clearly unlawful, a stay of execution may be decided upon, stating the reasons therefor ...”

Article 155 of the Constitution states, inter alia: “The Supreme Administrative Court is the final instance for reviewing decisions and judgments given by administrative courts. It shall also be the first and last instance for dealing with specific cases prescribed by law. ...”

Article 5 of the Code on the establishment and duties of tax courts, administrative courts and regional administrative courts (no. 25765) provides, inter alia: “Administrative courts deal with: (a) actions for annulment (b) administrative actions (c) ... except for those actions which are within the competence of tax courts and those which should be dealt with by the Supreme Administrative Court as a first-instance court.”

Article 25 of the Act on the Supreme Administrative Court provides: “Final decisions rendered by the administrative courts and the tax courts, as well as final decisions rendered by the Supreme Administrative Court acting as a first-instance court may be appealed to and dealt with by the Supreme Administrative Court.”

B. The law and practice governing asylum-seekers

Turkey has ratified the Geneva Convention and the 1967 Protocol thereto. It has exercised the geographic preference option under the 1951 Convention in order to limit the grant of refugee status to asylum-seekers from European countries. For humanitarian reasons, Turkey issues temporary residence permits to asylum-seekers from non-European countries who are recognised by the UNHCR as refugees pending their resettlement in a third country by that organisation.

The Ministry of the Interior issued a regulation on 30 November 1994 concerning asylum-seekers seeking asylum in Turkey or who are to be resettled in a third country. According to this Regulation, foreign nationals arriving in Turkey to seek asylum must submit their asylum application to the police within five days of their arrival in Turkey. Those who enter illegally are required to submit their application to the police at the border town nearest the point where they entered the country. Asylum-seekers entering the country legally may submit their application to the police in any city within five days of their arrival.

A person who enters Turkey illegally and does not apply to the Turkish authorities within five days of his or her entry cannot be accepted as a refugee.

Asylum requests are examined by the Ministry of the Interior. Non-European asylum-seekers who receive a positive decision may then submit their cases to the UNHCR for resettlement. The Ministry of the Interior considers the merits of an asylum application from the standpoint of Turkey’s obligations under the Geneva Convention and has regard to the opinions of the Ministry of Foreign Affairs and other relevant ministries and agencies. Foreigners whose requests are not accepted are liable to be deported by the local authorities.

An amendment was introduced to the 1994 Asylum Regulation in January 1999. According to the amendment, the five-day period in which to lodge an asylum request has now been increased to ten days. Furthermore, an asylum-seeker whose application has been refused may now appeal within fifteen days of the refusal to the competent governorship. The appeal is to be assessed by the superior of the official who took the initial decision to refuse asylum.

C. Recent international materials commenting on the punishment of adultery in Iran

In its 1999 Annual Report, Amnesty International concluded that judicial punishments amounting to torture or cruel, inhuman or degrading punishment continued to be reported. Flogging was reportedly imposed for a wide range of offences, at times in conjunction with the death penalty or a custodial sentence. An Iranian woman, the co-accused of a foreign businessman, was reportedly sentenced to 100 lashes in October 1999 after she was convicted of illicit sexual relations. It was unknown whether the sentence was carried out. In November 1999 an Iranian national was acquitted after he escaped from the pit in which he had been buried to the waist in order to be stoned to death in the town of Lahijan. He had been sentenced to death for adultery.

The 1999 Country Reports on Human Rights Practices, released on 25 February 2000 by the US Department of State, mention, with reference to Iran, that harsh punishments are carried out, including stoning and flogging. Article 102 of the Islamic Penal Code details the methods authorities should follow when conducting a stoning: “The stoning of an adulterer or adulteress shall be carried out while each is placed in a hole and covered with soil, he up to his waist and she up to a line above her breasts.” According to press accounts, a man was stoned to death in April 1999 in the town of Babol, which borders the Caspian Sea. He was alleged to have killed three of his own sons. Prior to the stoning, he received sixty lashes. The first stone was cast by the judge who sentenced him to death. The law also allows for the relatives of murder victims to take part in the execution of the killer.