SECOND SECTION

DECISION

Application no . 60079/14 A.S.R . against Turkey

The European Court of Human Rights (Second Section), sitting on 7 February 2017 as a Committee composed of:

Nebojša Vučinić , President, Valeriu Griţco , Stéphanie Mourou-Vikström , judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 19 August 2014,

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

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr A.S.R., is an Iranian national who was born in 1982 and lives in Kırıkkale . The President granted the applicant ’ s request for his identity not to be disclosed to the public (Rule 47 § 4).

2. The Turkish Government (“the Government”) were represented by their Agent.

A. The circumstances of the case

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

1. Background to the case

4. The applicant is a former member of the People ’ s Mojahedin Organisation of Iran ( “the PMOI ” ) and a Christian convert. In 2003 he fled Iran owing to a fear of persecution and death because of his religious and political convictions.

5. On 26 July 2005 he entered Turkey illegally and lodged an asylum application with the Turkish authorities. The applicant was deported to Iran on 24 May 2006 following the rejection of his asylum application.

6. On 16 June 2006 the applicant re-entered Turkey illegally and lodged another asylum application. It was also rejected and on 28 October 2006 he was once again deported to Iran.

7. Upon his return to Iran, the applicant was arrested by the Iranian police and charged with acting against the national security of the Islamic Republic of Iran on account of his collaboration with the PMOI in Iraq. The applicant stated that following his arrest in Iran, he spent most of the next seven years in prison, where he was held incommunicado in solitary confinement for several months and was tortured because of his faith.

8. On an unspecified date he was released from prison on bail, and in August 2013 he fled to Turkey once again, this time with his wife and child.

2. Events after the applicant re-entered Turkey in 2013

9. Upon his arrival in Turkey, the applicant lodged an application with the United Nations High Comm issioner for Refugees (“the UNHCR”) for refugee status for himself and his family.

10. The applicant and his family also sought asylum from the Turkish authorities. They were granted a temporary residence permit in Turkey pending the determination of their asylum applications.

11. On 27 November 2013 the applicant and his wife and child were granted refugee status by the UNHCR. There is no information in the case file as to whether any steps have since been taken to resettle the applicant and his family in a safe third country.

12. On 11 March 2014 the applicant went to a police station in Kırıkkale to request an extension to his temporary residence permit. He was allegedly informed by police officers that he would be deported to Iran if his request was refused. However, it appears from the information in the case file that the applicant ’ s temporary residence permit was extended and that he continues to reside in Turkey with his family pending the determination of his asylum application by the Turkish authorities.

13. It further appears from the information provided by the respondent Government, which was not contested by the applicant, that there is currently no order for the applicant ’ s deportation to Iran or elsewhere.

B. Relevant domestic law

14. A description of the relevant domestic law and practice at the material time, including, in particular, the new Foreigners and International Protection Act (Law no. 6458) that entered into force on 11 April 2014, may be found in the case of Babajanov v. Turkey (no. 49867/08 , §§ 29 ‑ 30, 10 May 2016).

COMPLAINTS

15. Relying on Article 13 of the Convention, the applicant argued that he risked being deported to Iran for a third time by the Turkish authorities, despite his refugee status and the danger of persecution there on account of his conversion to Christianity. Moreover, he had not been allowed access to any effective remedies, as on the two previous occasions.

THE LAW

A. The parties ’ submissions

16. The applicant maintained his complaints.

17. The Government argued that the applicant had failed to exhaust the available domestic remedies within the meaning of Article 35 § 1 of the Convention as his asylum application was still under consideration by the Ministry of the Interior.

B. The Court ’ s assessment

18. The Court considers that the applicant ’ s complaints should be examined from the standpoint of Articles 3 and 13 of the Convention.

19. The Court further considers it unnecessary to examine the Government ’ s objection as regards the applicant ’ s failure to exhaust the available domestic remedies as it finds that the application is inadmissible for the reasons set out below.

20. The Court notes that although the respondent State did not raise any objection as to the Court ’ s competence ratione personae in relation to the applicant ’ s complaints, the issue of his victim status calls for an examination proprio motu by the Court in the present circumstances (see M.A. v. Cyprus , no. 41872/10, § 115, ECHR 2013 (extracts), and A.D. and Others v. Turkey , no. 22681/09, § 78, 22 July 2014), having particular regard to the new safeguards against unlawful deportation that have been introduced by the Foreigners and International Protection Act (see Babajanov v. Turkey (no. 49867/08 , § 70 , 10 May 2016).

21. The Court reiterates that if an applicant has not yet been expelled or extradited when the Court examines the case, the relevant time for the assessment of whether a real risk of treatment contrary to Article 3 exists will be that of the proceedings before the Court (see Babajanov , cited above, § 72, and the cases referred to therein). In the Court ’ s view, the same principle applies in the assessment of an applicant ’ s victim status, that is to say, the assessment of the existence of the risk of expulsion or extradition from a country, in cases where expulsion or extradition has not taken effect at the time of the examination of the case by the Court (ibid.).

22. The Court notes from the information submitted by the parties that the applicant and his family were granted a temporary residence permit in 2013 pending the determination of their asylum application and have since been residing in Turkey legally. The Court further notes that there is currently no deportation order with legal effect in respect of the applicant. In those circumstances, the Court finds that the applicant does not currently face an imminent risk of removal from Turkey, to Iran or elsewhere.

23. Moreover, the Court considers that in the event of a fresh deportation order in the future it would be open to the applicant to make use of a judicial procedure in which his claim of possible ill-treatment in the country of destination would be assessed domestically (see Babajanov , cited above, § 80). The Court takes note in that regard of the legal safeguards against unlawful and arbitrary deportation envisaged in the new Foreigners and International Protection Act, which were not in force at the time of his previous deportations in 2005 and 2006 (see Babajanov , cited above, §§ 69 ‑ 81 for further details on the relevant legal safeguards).

24. In those circumstances, the Court considers that the applicant cannot be considered as a victim within the meaning of Article 34 of the Convention in relation to his complaints concerning his threatened deportation from Turkey.

It follows that those complaints are incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4.

25. The Court stresses that the above finding is without prejudice to any examination that it might carry out regarding the application of the provisions of Law no. 6458 in the future, and does not prevent the applicant from lodging a new application with the Court and making use of the available procedures, including Rule 39 of the Rules of Court, in respect of any new circumstances that may arise, in compliance with the requirements of Articles 34 and 35 of the Convention (see Babajanov , cited above, § 83, and the cases referred to therein).

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 2 March 2017 .

Hasan Bakırcı NebojÅ¡a Vučinić              Deputy Registrar President