MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1419/H46-22

2 December 2021

1419th meeting, 30 November – 2 December 2021 (DH) Human rights   H46-22 Ozdil and Others v. Republic of Moldova (Application No. 42305/18) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2021)977, DH-DD(2021)1085, CM/Del/Dec(2021)1398/H46-15

 

Application	Case	Judgment of	Final on	Indicator for the classification
42305/18	OZDIL AND OTHERS	11/06/2019	11/09/2019	Complex problem

Case description

In the present case, the Court found violations of Articles 5 § 1 and 8 of the Convention on account of the extra-legal transfer of all five applicants^[1] from the Republic of Moldova to Turkey in September 2018, which circumvented all guarantees offered to them by domestic and international law.

In particular, the Court noted that the Moldovan authorities had not only failed to give the applicants a choice of jurisdiction to be expelled to but had deliberately transferred them directly to the Turkish authorities. The facts of the case indicate that the operation was conceived and organised in such a manner as to take the applicants by surprise so that they would have no time and possibility to defend themselves. The Court found that the applicants’ deprivation of liberty on 6 September 2018 was neither lawful, necessary nor devoid of arbitrariness.

As concerns the violation of Article 8, the Court considered that by excluding the applicants from the Republic of Moldova, where they had been lawful residents, had been employed and had families with children, the authorities disrupted their private and family lives. The Court attached weight to the fact that the domestic courts refused to examine the applicants’ court actions against the decisions rejecting their asylum applications and declaring them undesirable persons on very formalistic grounds. The Court noted that the domestic courts would in any event have been unable to examine the real motives behind the expulsion because domestic law did not provide that the note of the secret service which had served as grounds for the applicants’ expulsion could be made available to the judges. It found therefore that the forcible transfer of the applicants lacked sufficient legal basis and that they did not enjoy the minimum degree of protection against arbitrariness.

Status of execution

The Committee of Ministers examined this case at its DH meetings in September 2020 and March 2021.

As regards individual measures, the Committee noted with satisfaction the decision of the Chișinău Court of Appeal ordering the Bureau for Migration and Asylum (BMA) to grant refugee status to one of the applicants and invited the authorities to provide information on the outcome of the proceedings pending in respect of another two applicants and on whether the courts had access to the classified materials. It also strongly encouraged the authorities to initiate proprio motu the revision proceedings concerning the entry ban and invited them to continue to obtain detailed information from the Turkish authorities on the current situation of the applicants in Turkey.

As regards the investigation and criminal proceedings against those responsible for the violations, the Committee strongly encouraged the authorities to fully investigate the possible involvement of any higher-level actors. It also welcomed the publication of an extract from the classified judgment but regretted that it offers only minimal information about the proceedings. It thus invited the authorities to provide further information which will allow the Committee to form its view on the adequacy of the sanction applied as well as on the outcome of the appeal proceedings.

As regards other general measures, the Committee invited the authorities to provide information on the legislative amendments which should follow the judgment of the Constitutional Court of 13 November 2020 declaring unconstitutional several provisions related to the expulsion of aliens on national security grounds; encouraged them to strengthen the message of the President of the State underlining the inadmissibility of an improper influence on the intelligence services by an unequivocal call as to the absolute unacceptability of, and zero tolerance towards, arbitrary detention and extra-legal transfers. Further, it firmly reiterated its call to start without delay a reflection on the existing oversight and accountability mechanism over the actions and powers of the secret services and invited the authorities to provide information on whether de-classifying the materials related to the inquiry of Parliamentary Committee is being considered.

In response to the Committee’ decision, on 5 October 2021 the authorities submitted an updated action plan (see DH-DD(2021)977), which can be summarised as follows: 

Individual measures:

As concerns the applicants' asylum applications, the Security and Intelligence Service (the SIS) filed an appeal on points of law against the decision of the Chișinău Court of Appeal of 9 December 2020 ordering the BMA to grant refugee status to the applicant Müjdat Çelebi. The SIS argued that the court did not consider the classified materials which allegedly prove that the applicant is a threat to the national security. On 17 March 2021, the Supreme Court admitted the appeal, quashed the decision of the Chișinău Court of Appeal and sent the case for a new examination. It held, with reference to the European Court’s judgment, that the appellate instance failed to request and study the classified materials, which served as basis for the applicant’s expulsion, and issued a hasty decision when accepting the applicant’s action. The case is pending at the Chișinău Court of Appeal.

The actions contesting the BMA decisions rejecting the applications for asylum lodged in respect of the applicants Mehmet Feridun Tüfekçi and Riza Doğan were rejected by the first instance court in July 2020 and are pending examination of appeal at the Chișinău Court of Appeal.

The Moldovan authorities have inquired with the Turkish authorities about the current situation of the applicants in Turkey, notably on the outcome of the appeal proceedings in their criminal cases and on the possibility to receive family visits while in detention. Information from the Turkish authorities is awaited by the Moldovan authorities.

General measures:

1)     Criminal investigation into the events and related proceedings

The appeal lodged by the wife of the applicant Mehmet Feridun Tüfekçi seeking a harsher criminal punishment for the former head of the SIS is still pending at the Chișinău Court of Appeal in the preparatory phase. Thus far the parties have not requested the examination of the case in camera.

2)     Legislative developments 

Following the Constitutional Court judgment of 13 November 2020 declaring unconstitutional several provisions of the Law on the Status of Aliens and of the Administrative Code,legislative amendments have been prepared to implement this judgment. The proposed amendments provide, in particular, that the decision declaring a person undesirable should include a summary of the reasons underlying that decision, to the extent that is compatible with the protection of confidentiality of that information and that a person whose life could be threatened in the country of destination or who could be subjected to ill-treatment cannot be removed from the Republic of Moldova, even if he/she represents a threat to the public order or to national security. In addition, the draft amendments expressly provide that the domestic courts are competent to conduct a control of the proportionality of the individual and normative administrative acts in situations related, inter alia, to the national security issues. The draft law is currently pending approval by the Government.

3)     Parliamentary control over the SIS

Following the parliamentary elections of July 2021, the Chairperson and members of the Parliamentary Subcommittee exercising control over the SIS should be elected. The subcommittee might then consider conducting a thorough analysis on the oversight and accountability mechanism of the SIS.

On 7 September 2021, the Chairman of the Parliamentary Committee on National Security, Defence and Public Order addressed an official letter to the SIS, requesting the de-classification to the general public of the materials on the applicants’ expulsion to Turkey. The authorities are currently reflecting on this matter.

Communication under Rule 9:

On 12 October 2021, a joint communication was received from the Legal Resource Centre of the Republic of Moldova and the Promo-Lex Association (DH-DD(2021)1085), which notes inter alia that the applicants have not been notified about the first instance court judgment against the former head of the SIS and that in the appeal proceedings the appellant (the wife of the applicant Mehmet Feridun Tüfekçi) was refused access to the case file until she obtains an approval from the agency in charge of state secrets, i.e. the SIS. Her request to obtain such approval is currently pending. The NGOs also point to the fact that the draft legislation elaborated following the judgment of the Constitutional Court of 13 November 2020 has not been proposed so far for public consultation and that the outcome of the inquiry into the events conducted by the Parliamentary Committee is not yet clear.     

Analysis by the Secretariat

Individual measures:

At the outset the Committee might wish to note that the consequences of Article 8 violation in the present case continue to persist and that the State’s obligations under Article 46 of the Convention require it to put an end to the violation and to adopt individual measures with a view to ensuring, as far as possible, restitutio in integrum. Given the nature of the violation and the circumstances in the instant case, restitutio in integrum requires that measures are taken to minimise the disruption to the applicants’ private and family lives, which occurred as a result of their extra-legal transfer from the Republic of Moldova to Turkey.

 

As concerns court proceedings related to the asylum applications, the authorities are strongly encouraged to ensure that these proceedings fully comply with the requirements of the European Convention on Human Rights and the European Court’s case-law, including the requirements of proportionality with the legitimate aim pursued and for respect for family life, as well as the Republic of Moldova’s other international human rights obligations. In this context, the authorities are invited to provide information on the first instance courts’ reasoning when dismissing Riza Doğan’s and Mehmed Feridun Tüfekçi’s appeals against the BMA decision to reject their asylum applications and on the outcome of the appeal proceedings in all three cases. In addition, it would be useful if the authorities could inform the Committee on whether the applicants were notified of the summary of the reasons for which they were declared undesirable persons and removed from the country, in line with the provisional rules set out by the Constitutional Court in its judgment of 13 November 2020.[2]

Finally, the Committee might wish to reiterate that the Moldovan authorities should continue their efforts in obtaining detailed information from the Turkish authorities on the applicants' current situation in Turkey, including on the outcome of the appeal proceedings in their criminal cases, the family visits to the applicants and the possible application of the Council of Europe Convention on the Transfer of Sentenced Persons, to allow the applicants’ transfer to Moldova to serve their sentences.

General measures:

1)     Investigation and criminal proceedings against those responsible for the violation

No response was provided to the Committee’s call to fully investigate the possible involvement in the events of any higher-level actors. Also, no information was provided to allow the Committee to form its view on the adequacy of the fine applied as a sanction to the former head of the SIS. The Committee’s might thus wish to reiterate its previous call to provide this information without further delay. 

Based on the information provided in the NGOs communication, it is noted that the applicants have not been notified about the first instance court judgment against the former head of the SIS and that in appeal proceedings the appellant representing one of the applicants was refused access to the materials of the case file until she obtains an approval from the agency in charge of state secrets, i.e. the SIS. It can be noted in this context that, in cases such as the one at hand, the authorities should ensure that the victims may participate in the proceedings to the extent necessary to safeguard their legitimate interests. Accordingly, the authorities could be encouraged to ensure that the applicants and their representatives have access to the information of relevance for their case and necessary for the protection of their interest and exercise of their rights. Adequate procedural safeguards should be established by the authorities in this respect. Information on the outcome of the appeal proceedings is awaited.  

2)     Other general measures

The request by the Parliamentary Committee on National Security, Defence and Public Order to declassify and thus make public the materials related to the expulsion of the applicants is an important step towards ensuring the necessary public scrutiny and can be welcomed. Information on the outcome of this request is awaited.

It can be regretted that so far, three years after the events in this case and two years after the Court’s judgment, no reflections have started on the existing oversight and accountability mechanism over the actions and powers of the secret services despite the Committee’s previous calls. The Committee may therefore wish to strongly reiterate yet again its call and urge the authorities to undertake without further delay the necessary assessment on whether sufficient checks and balances exist within the system and whether appropriate safeguards exist in law and practice against human rights abuses committed by the intelligence services.

The authorities remained silent on whether any actions are envisaged to send a clear message to the intelligence services from the highest political level as to the policy of zero tolerance towards arbitrary detention and extra-legal transfers, underlining at the same time the importance of ensuring that international co-operation, including with foreign secret services, is consistent with overarching human rights obligations under the European Convention on Human Rights. The authorities could be strongly encouraged to adopt the requested measures.  

Finally, information is awaited on the progress in the adoption of the amendments to the Law on the Statute of Aliens and to the Administrative Code.

Financing assured: YES