FOURTH SECTION

DECISION

Application no. 41396/98 by A. Sh. and Others against Turkey

The European Court of Human Rights (Fourth Section) , sitting on 28 May 2002 as a Chamber composed of

Sir Nicolas Bratza , President , Mrs E. Palm , Mr J. Makarczyk , Mrs V. Strážnická , Mr M. Fischbach , Mr R. Maruste , judges , Mr F. Gölcüklü , ad hoc judge ,

and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged with the European Commission of Human Rights on 24 May 1998,

Having regard to the interim measure indicated to the respondent Government by t he Commission which decided to apply former Rule 36 of its Rules of Procedure (Rule 39 of the Rules of Court), a nd the fact that this interim measure has been complied with,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants, of Iranian nationality, are the Sh. -Se. family. A. Sh . and A. Se. were born in 1970 in Iran. Their daughter, R. Sh . was born in February 1998 in Turkey. They are represented before the Commission by the Iranian Refugees’ Alliance Inc., a non-governmental organisation based in the United States of America.

The facts of the case, as submitted by the parties, may be summarised as follows.

The first applicant’s father was a member of the Javidan Guard, one of the former Shah’s special military forces. His father, brother and father-in-law were arrested for their anti-government activities in Iran.

On 3 December 1996, the first applicant was arrested and placed in solitary confinement during one week at Sepah Pasteran . He was repeatedly interrogated and beaten. He was then transferred to the Kermanshah Information Department. While in detention Iranian authorities brutally tortured him, beat his face resulting in the fracture of three of his teeth. After twenty-seven days of detention the applicant became seriously ill and was transferred to Khomeini Hospital.

On 3 January 1997, the first applicant escaped from hospital. Separately he and his wife fled Iran and went to Turkey, the first applicant arriving there on 26 March 1997. The first applicant claimed that he was detained in the custody of the security forces until 3 April 1997 when a UNHCR officer took him to the border city of Ağrı . He was placed in a hotel designated by the Government to accommodate asylum seekers. He was questioned the next day by the UNCHR and also by the police.

The first applicant’s wife, the second applicant, arrived in Turkey on 18 April 1997.

The applicants made an application to the UNHCR.

The Turkish authorities granted the applicants a provisional residence permit on 22 May 1997. The permit was renewed on 29 September 1997 for an additional three months.

On 2 June 1997, the UNHCR refused the applicants’ request for refugee status.

On 6 June 1997 the applicants appealed against the decision and requested the UNCHR to re-open the case.

On 20 June 1997 the applicants were questioned by a UNHCR official from Ankara.

In July 1997 the request made by the applicants to re-open the case was rejected by the UNHCR.

On 14 October 1997 the applicants were served with a deportation order in which they were informed that they would be deported unless they appealed against the decision within 15 days.

On 23 October 1997 the applicants appealed against this decision and they were subsequently granted leave to remain in Turkey until 29 December 1997.

Meanwhile the first applicant requested the UNHCR once more to re-open his case. This request was rejected by the UNHCR on 29 December 1997.

On 7 January 1998, the applicants were served with another deportation order from the Turkish authorities. According to this order they were required to leave the country within fifteen days.

On 29 May 1998 the former Commission informed the respondent Government of its decision to apply former Rule 36 of its Rules of Procedure (Rule 39 of the Rules of Court) until 10 July 1998.

On 23 June 1998 the first applicant informed the Ministry of the Interior that he and his family had been recognised as refugees by the Canadian Government and he asked for permission to leave Turkey for Canada.

On 9 July 1998 the former Commission prolonged its indication under Rule 36 of its Rules of Procedure until its session between 7 and 18 September 1998.

On 15 July 1998 the applicants left Turkey and were resettled in Canada pursuant to a resettlement programme.

On 12 August 1998 the applicants informed the former Commission about their resettlement in Canada and they withdrew their request under Rule 36. They maintained their other complaints.

On 17 September 1998 the Commission decided to end its indication under Rule 36.

COMPLAINTS

The first applicant complained that upon entering Turkey on 26 March 1997 he was detained by the Turkish military in the mountains and his belongings were confiscated, he was beaten and was kept in custody. He invoked Articles 3 and 5 of the Convention.

The applicants complained, under Articles 2, 3 and 8 of the Convention, of their threatened expulsion to Iran. They claimed that they risked execution or detention or torture or inhuman or degrading treatment by the Iranian authorities resulting in the permanent destruction of their family.

The applicants further complained that they received no legal assistance in the proceedings before the Turkish authorities. They invoked Articles 6 and 13 of the Convention.

The applicants finally complained that the Turkish authorities’ exclusive deportation of non-European refugees who fail to resettle in a third country constitutes discrimination contrary to Article 14 of the Convention.

THE LAW

The Court notes at the outset that the first applicant’s complaints under Article 3 and 5 of the Convention regarding his alleged detention and ill-treatment were withdrawn by the first applicant in a letter of 24 May 1998 as he feared retaliation from the Turkish authorities. He wanted to reinstate these complaints on 4 November 1998 following his departure from Turkey but has failed to submit a new application form to that effect. Even assuming that the Court had jurisdiction to examine these complaints, it notes that the applicant has failed to substantiate his claims of a violation of these provisions.

The Government submitted that the applicants left Turkey on 15 July 1998 and were now resettled in Canada. Accordingly, the applicants’ insistence in maintaining these complaints was unjustified. The Government submitted in particular that the fact that the applicants had been subjected to a deportation order the implementation of which might have exposed them to the risk of a violation of the Articles invoked by them could not in the present circumstances raise any Convention issues.

The applicants maintained that notwithstanding their resettlement in a third country the Court should still examine their complaints on the merits.

The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified in paragraph 1 of that Article.

Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application.”

Article 37 § 1 in fine states:

“However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the protocols thereto so requires.”

The Court notes that the applicants are now living in Canada. Given that the fears which they harboured about their forced return to Iran have been removed, the Court considers that the applicants can no longer claim to be victims within the meaning of Article 34 of the Convention (see G.H.H. and Others v. Turkey , no. 43258/98, § 28, ECHR 2000-VIII). The Court considers, therefore, that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

Moreover, the Court is satisfied that respect for human rights as defined in the Convention and the protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ).

In this connection, the Court points out that in several previous cases the Court has had occasion to rule on the responsibility under the Convention of a Contracting State where the complaint was that there were substantial grounds for believing that the person concerned, if expelled or extradited, would face a real risk of being subjected to inhuman or degrading treatment in the country of destination (see the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, pp. 35-36, §§ 90-91; the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 28, § 69; the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 36, §§ 107-08; the Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1859, §§ 95-97 and finally, Jabari v. Turkey , no. 40035/98, ECHR 2000-VIII). In doing so, the Court specified the nature and extent of the Contracting States’ obligations under the Convention in that regard.

Accordingly, the case should be struck out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Michael O’Boyle Nicolas Bratza Registrar President