Op-Ed: Constitutional Court ruling in Turkey paves the way for ‘voluntary return’ plan 


May 10, 2022

In an important judicial precedent, the Constitutional Court of Turkey ruled against the security and migration directorates in Samsun province in April in favor of a Syrian refugee under temporary protection. The case was the first lawsuit filed by a Syrian refugee who felt that his legal right to “protection” was violated by the two directorates unfairly implementing the law outside of its intent. He resorted to Turkey’s highest judicial authority to seek redress, and received a ruling annulling the decision to deport him from the country five years ago. 

The young Syrian had been granted temporary protection in Turkey in 2015, but a deportation order was issued for him in 2017 after he was confused with another individual accused of “terrorism and threatening state security.” In the April ruling, the Constitutional Court overturned the decision. This step was important because it reversed an arbitrary deportation decision based on mere suspicion or confusion, with no conclusive evidence to condemn the deportee, who reentered Turkey “illegally” two weeks later. There was also no evidence indicating that the accusation was accurate, which points to how much recklessness and indifference exists towards the psychological and social impacts of deportation decisions. 

The case is also important because it broke the barrier of keeping quiet and avoiding appealing to the judiciary, which is the approach most Syrians take in the hope of living in peace without problems. It also encourages anyone subjected to injustice or abuse in the implementation of the law to follow the same approach and defend their rights, or what they believe are their rights. 

But on the contrary, in another case the same month, the Constitutional Court rejected a group of individual claims filed by Syrians who challenged their deportation decisions on a single basis: their fear of mistreatment if deported. The Court held that the plaintiffs did not provide proof that they would in fact face mistreatment in Syria. 

From a legal perspective, the plaintiffs themselves made a mistake by, from the outset, establishing their cases on the point of the fear of mistreatment if deported. Instead, they should have tried to undermine the content of the deportation decision itself, the grounds it was based on and its consistency with the Temporary Protection Regulation to which Syrians are subject. That law identifies limited causes that allow Turkish government authorities to deport those to whom one or more applies. Merely submitting inconclusive or unstable claims of the possibility of mistreatment if returned to Syria will neither save the plaintiffs from deportation nor undermine the decision being appealed, according to the content of the Constitutional Court’s April ruling.

Before considering the implications and impacts of these decisions, it is important to point out two issues. First, the conditions stipulated in the Temporary Protection Regulation that allow for the authorities to terminate protection status and deport individualsare limited and may not be expanded or exceeded in citing them or drawing analogies from them. The conditions are as follows: 

  • Leaders, members or supporters of a terrorist or for-profit criminal organization. 
  • Whoever uses false information and forged documents in Turkish entry procedures, visas and residence permits. 
  • Individuals who make a living by illegal means while residing in Turkey. 
  • Individuals who, without an acceptable justification, have overstayed their visa or visa exemption by more than ten days or whose visa has been canceled.
  • Individuals whose residence permit has been canceled and whose applications to extend their residence have been rejected and who have not left Turkey within ten days. 
  • Individuals found to be working without a permit. 
  • Whoever violates the legal provisions of entry and exit from Turkey. 
  • Individuals found to have come to Turkey despite being banned from entry. 

The second issue is that the Temporary Protection Regulation stipulates that refoulement is not permissible, as stated in Article 6: “No one within the scope of this Regulation shall be returned to a place where he or she may be subjected to torture, inhuman or degrading punishment or treatment, or where his/her life or freedom would be threatened on account of his/her race, religion, nationality, membership of a particular social group or political opinion.”

Here, it should be noted that deporting Syrian refugees to their country violates not only the Temporary Protection Regulation, but also Article 33 of the United Nations Convention Relating to the Status of Refugees and Article 4 of the Convention’s 1967 Protocol, which are part of the Turkish state’s legal obligations as it has adopted these conventions and agreements.  

Returning to the Constitutional Court’s recent decision, the plaintiffs’ failure to establish their claims on a correct legal basis does not mean the Court’s ruling is correct. The Court placed the burden of proving possible mistreatment if deported on the plaintiffs’ shoulders. This interpretation wholly contradicts and threatens the concept of temporary protection—which is what provides the legal status for all Syrian refugees in Turkey. It is based on the assumption that the places people will be deported to are safe for them, as evidenced by them being required to present evidence to the contrary. This, despite the fact that all international human rights reports acknowledge that there is no safe place for refugees in Syria’s various regions. 

In this context, it is legitimate to question whether this decision sets the stage for the implementation of the Turkish government’s recently announced plan for the “voluntary return” of one million refugees in Turkey to some areas in northwestern Syria. I believe that this is only a first stage, and that return operations will continue to include, in my estimate, more than three million Syrians. 

So, does the recent ruling by Turkey’s Constitutional Court pave the way for a “voluntary return” plan? My response: Yes, it does. It is true that it is entirely a judicial decision, but it establishes the notion that these areas are safe until proven otherwise in relation to an individual’s situation. This undermines the foundations of the concept of temporary protection in its entirety, even though the reasons and circumstances that necessitated granting that protection have not disappeared. 

 

This article was originally published in Arabic and translated into English by Mateo Nelson. 

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