ANKARA YILDIRIM BEYAZIT UNIVERSITY

FACULTY OF LAW

2022/2023 ACADEMIC YEAR, SPRING TERM

CASE LAW OF THE ECtHR

MIDTERM ASSIGNMENT

Dr.Öğr.Üyesi EBRU DEMİR

THE ROLE OF THE EUROPEAN COURT OF HUMAN RIGHTS IN

PROTECTING THE RIGHTS OF REFUGEES

ELİFNAZ DURMAZ (18010111073)

ANKARA- APRIL

2023
THE ROLE OF THE EUROPEAN COURT OF HUMAN RIGHTS IN
PROTECTING THE RIGHTS OF REFUGEES

I. INTRODUCTION

Sometimes within a particular society force people to migrate to lands other than
their own.1 One of this society’s force is war. As a result of the migration movements that
started with the First World War, the concept of "refugee" took its place in international
law. Due to these migration movements, laws on foreigners were enacted in France in
1915, in Belgium in 1922, in Italy in 1926, in 1933 In Austria, in Germany in 1935.
Nation-state understanding is so dominant that what people have just because they are
human rights have been defined as rights they have because they are citizens, not because
they are human.2

The first international regulation on the refugees emerging with the concept of
nation-state was created at the time of the League of Nations. Such regulations continued
to be issued during the United Nations period. With many regional and universal
documents, the right to asylum, individual right and regulations regarding this issue are
included. The 1951 Geneva Convention and the 1967 Protocol are the most relevant
comprehensive regulations to refugee law. Universal Declaration of Human Rights also
regulated that everyone is entitled to seek and seek asylum in other countries in the face of
persecution in Article 14.

There is no direct regulation on refugee law in the European Convention on Human

Rights. The absence of regulation does not mean that persons with refugee status will not
be protected under the contract.3

Within the scope of this study, first of all, it will be mentioned why refugees are in
the disadvantaged group(II). Then, It will be explained which articles of the ECHR are
related to the protection of refugees(III). After that, the decision of the ECtHR regarding
refugees will be analyzed.(IV) Finally,we will examine whether ECtHR is based on other
international conventions when making its decision(V)
1
Algan, Nesrin/Künçek Özlen(1998)’’ Transboundary Population Movements: Refugees Environment and
Politics’’ ,The Turkish Yearbook of International Relations, N: 28, p. 75-103

2
Bozbeyoğlu, Eda(2015) ‘’ Mülteciler ve İnsan Hakları’’ Hacettepe Üniversitesi İletişim Fakültesi Kültürel
Çalışmalar Dergisi, V:2, N:1, p. 60-80

3
Karagözoğlu, Ceren(2015) ‘’ AVRUPA İNSAN HAKLARI MAHKEMESİ KARARLARININ TÜRK
MÜLTECİ HUKUKUNA ETKİSİ’’(Yüksek Lisans) İstanbul Üniversitesi, Sosyal Bilimler Enstitüsü
II. WHY REFUGEES ARE DISADVANTAGED GROUP?

After the World Wars, people tended to move massively. The concept of nation-
state began to emerge at this time. In the nation-state model, it is essential that all citizens
forming the state share a common language, a common culture and common values. Many
states have enacted laws regarding foreigners so that the understanding of the nation-state
is not damaged by immigration. In countries where the concept of nation-state is dominant,
human rights are now defined as citizenship rights. For this reason, non-citizens were
treated as deprived of their human rights. Especially in Germany, The Nuremberg Laws,
which divided them into German citizens are "full citizens" and "deprived of political
rights citizens”, had great repercussions.

States for a very long period of time foreigners' legal remained absolute sovereign
over their status and they have jealously resisted the regulation of this issue by
international law. However, in the post-World War II period, the rights and freedoms of
foreigners began to be the subject of regulation of international law. 1951 On the Legal
Status of Refugees in Geneva Convention to the foreigner's country based on the restrictive
“non-refoulement” principle regarding admission or deportation. Article 1 of this
Convention described the refugee.

‘’As a result of events occurring before 1 January 1951 and owing to well-
founded fear of being persecuted for reasons of race, religion, national-
ity, membership of a particular social group or political opinion, is out-
side the country of his nationality and is unable or, owing to such fear,
is unwilling to avail himself of the protection of that country; or who,
not having a nationality and being outside the country of his former
habitual residence as a result of such events, is unable or, owing to such
fear, is unwilling to return to it.’’4

In short, refugees were treated worse than other citizens in the period when the
understanding of the nation-state was dominant, and for this reason, they were included in
the disadvantaged group in need of protection in international law. ECHR is one of the
protection of refugees in international area.

III.WHICH ARTICLES OF THE ECHR ARE RELATED TO THE PROTECTION

OF REFUGEES?
4
<< https://www.unhcr.org/media/28185 >>
 In the European Convention on Human Rights (ECHR),there is no clear provision
regarding the prohibition of refoulement and the right to live and the basis for the
protection of refugees. However, since the convention is accepted by more countries, it is
more effective than the specially arranged agreements for refugees. Right to life (article 2),
prohibition of torture (article 3), prohibition of slavery (article 4/1) and prohibition of

retroactive punishment (article 7) is absolute rights on this Convention. This absolute

protected area includes the refugees. In most of the ECtHR decisions, the absolute rights of
the ECHR have been referred to as well as special regulation contracts. AHM especially

ECtHR is an effective judicial authority for the protection of the rights of refugees
and asylum seekers with its decisions made under Articles 2, 3, 5, 8 and 13 of the ECHR
and Article 4 of Protocol No. 4. Moreover, the ECHR has a wider scope of application
than the 1951 Geneva Convention, because ECtHR also examines the case law of other
treaties and international organizations to which the Contracting States are party.

IV. SAKKAL AND FARES V TURKEY ( APPLICATION NO: 52902/15)

The first applicant, Abdalsalam Sakkal, is a Syrian born in 1992. He is a citizen and
resides in Germany. Second and third applicants Ali Fares and Mohammed Fares, 1985
and 1988 respectively. They are stateless Palestinians born and residing in France. All
three of the applicants were represented before the Court by lawyer Uludağ Gök. They
caught by four police officers for suspicion of violating the Law on Meetings and
Demonstrations. On the same day,They were taken to Esenyurt District Police
Headquarters and they were questioned by the police in the presence of a lawyer in this
regard. Hearing that the applicants would be deported, the lawyer received assistance from
the Refugee Rights Center. It is also alleged that the administrative detention decision
regarding the applicants in Article 57 of Foreigners and International Protection Law was
not notified to the attorneys. Relying on Articles 2 and 3 of the Convention, the applicants
subject to explicit death or ill-treatment if they deported. The applicants also complained of
a violation of Articles 5, 13 and 34 of the Convention.

What needs to be examined in this case is whether the deportation decision on the
basis of the institution constitutes a violation of Articles 2 and 3 of the ECHR. The court
observed that they had left Turkey on 1 December 2015 and 27 January 2016. The first
applicant is now resides in Germany, while the second and third applicants reside in
France. Therefore, the applicants' travel from Turkey to Syria or the risks of deportation
no longer exist. According to Article 35/3 of the ECHR, their applications were declared
inadmissible. The applicants' grounds for complaint regarding the violation of Articles 5/2,
4 and 13 of the ECHR were examined. The applicants claim that the decisions are not
notified and they complained that they were denied access lawyer. On 10 November 2015
Turkish Goovernment claimed that the applicants should an individual application to the
Constitutional Court. That is, The Government referred to the rule of exhaustion of
domestic remedies. The Turkish Government also referred to EctHR’s decisions which are
Vučković and Others v. Serbia 5 and Mocanu and Others v. Romania 6. For these reasons,
the Court Declaring the application has decided inadmissible by a majority of votes.

I believe that the decision made is correct. Article 55 of Foreigners and

International Protection Law regulates persons who cannot be deported. For applicants, we
need to determine if there is anyone we can put in this category. The applicants claim that
they are within the scope of article 55/1-a. ‘’ …the death penalty, torture, inhuman or
degrading those with serious indications that they will be subject to punishment or
treatment’’ However, the habitual residence of the applicants is in France and Germany.
With the deportation decision, the applicants' only destination is not the country of their
nationality. For this reason, in my opinion, the decision not to violate the ECHR is
appropriate. Another situation arose regarding the exhaustion of domestic remedies. Article
3 of the ECHR also counted the exhaustion of domestic remedies within the admissibility
criteria. For this reason, the applicants should have applied to the ECtHR within 4 months
after the final decision was given after the first application to the Turkish Constitutional
Court. The decision made in this direction is also appropriate for the reasons I have
explained.

V. HOW THE COURT ENGAGES WITH OTHER INTERNATIONAL

INSTRUMENTS IN THE PROTECTION OF THAT PARTICULAR GROUP?

We mentioned in our article that there are many special international regulations for
the protection of refugees. Although beside special regulations, ECtHR generally decides
by referring to the relevant articles of ECHR, mostly articles 2 and 3. For example, the
1951 Geneva Convention did not regulate an absolute protection with the principle of non-
refoulement. of the Convention The limits of this principle are regulated in the second
5
No. 17153/11, §§ 69-71, 25 march 2014
6
No. 10865/09, 45886/07 and 32431/08, §§ 220, 222 ve 223
paragraph of Article 33. According to this principle, if a person who poses a serious danger
to the people of the country in which he resides and who has a finalized conviction for a
common crime he has committed poses a danger to the country in which he resides, cannot
enjoy the right. As regards the application of the ECHR principle of non-refoulement, 1951
It is more favorable than the Geneva Convention. Because, contrary to the Geneva
Convention, the person does not need to have received the refugee status in order to
request the application of Article 3 of the ECHR. Example of the ECtHR's decisions
applying the principle of non-refoulement to put it simply, Soering v. UK decision. 7 For
such reasons, ECtHR often prefers to refer to ECHR, ignoring specific regulations.

VI . CONCLUSION

In this article, we discussed that protection of refugees rights in international law

especially ECtHR. After world wars, people migrated to safe places. Thus, nation- state
principle improved this time. With this principle, laws containing inequalities between
citizens and immigrants were passed. In order to prevent these inequalities, some
arrangements were made in international law. 1951 Geneva Convention and the 1967
Protocol are the most relevant comprehensive regulations to refugee law. UDHR also
includes some regulations about refugees. ECHR includes general priciples but it doesn’t
regulate specific regulations for refugees. When ECtHR deciding, it refer to general
principials of ECHR. A lot of decides for refugees in ECtHR. We analyzed Sakkal and
Fares v Turkey decision. To summarize briefly, it is a shortcoming in terms of international
law that ECHR resolves cases in accordance with general provisions on refugees. Although
fair results are obtained , ın my opinion that a special arrangement should be made
regarding this issue, which has been at the top of the agenda recently.

VII. BIBLIOGRAPHY

7
Soering v. United kingdom , (No. 14038/88), Strasbourg, 07 july 1989.
1- Algan, Nesrin/Künçek Özlen(1998)’’ Transboundary Population Movements:
Refugees Environment and Politics’’ ,The Turkish Yearbook of International Relations, N:
28, p. 75-103
2- Bozbeyoğlu, Eda(2015) ‘’ Mülteciler ve İnsan Hakları’’ Hacettepe Üniversitesi İletişim
Fakültesi Kültürel Çalışmalar Dergisi, V:2, N:1, p. 60-80
3- Karagözoğlu, Ceren(2015) ‘’AVRUPA İNSAN HAKLARI MAHKEMESİ
KARARLARININ TÜRK MÜLTECİ HUKUKUNA ETKİSİ’’(Yüksek Lisans) İstanbul
Üniversitesi, Sosyal Bilimler Enstitüsü
4- Korkut, Levent (2008)’’ Avrupa İnsan Hakları Mahkemesi Kararlarının Devletlerin
Sığınmacıları Sınırdışı Etme Egemen Yetkisine Etkisi: Türkiye Örneği’’ Ankara Barosu
Dergisi, V:66, N:4, p. 20-35
5- Özkerim Güner, Neslihan (2016) ‘’ Avrupa İnsan Hakları Mahkemesi’nin Mültecilerin
Haklarının Korunmasındaki Rolü’’ THE JOURNAL OF MIGRATION STUDIES, V:2,
N:2, p. 212-241
6- https://www.unhcr.org/media/28185
7- https://www.mevzuat.gov.tr