Administrative detention decision is an administrative measure that can be decided against foreigners who have been given a deportation decision or applied for international protection, under the conditions of the law, and that causes them to be deprived of their freedom by being held in removal centers.
In my article, I first examined the legal nature of the administrative detention decision, its characteristics and the reasons for the decision. Afterwards, I talked about who made the decision on administrative detention, how long it can last, what alternative measures are available to administrative detention, and removal centres. In the second part, I explained how to appeal the administrative detention decision.
Administrative Detention Desicion
I. Legal Nature of the Administrative Detention Decision
Administrative detention is an administrative measure regarding the deprivation of liberty and detention of foreigners who pose a threat to public order, security or health, or who are likely to pose a threat, according to the periods determined by law, and in places determined by law.
The purpose of administrative detention is to fulfill the requirements of the deportation process, to collect information about the applicant in the application for international protection, to protect public order or public health. A person is deprived of his liberty by the decision of administrative detention. A person placed under administrative detention cannot leave the place of his/her own will. Administrative detention decision is an administrative act.
II. Reasons for Administrative Detention Decision
Administrative detention can be applied to foreigners to be deported or to applicants who have applied for international protection and whose application has not been finalized. The situations in which a decision can be taken are regulated in the Law on Foreigners and International Protection.
1) Administrative Detention Decision Regarding Foreigners to be Deported
A deportation decision is made for foreigners in the situations in Article 54 of the Law on Foreigners and International Protection. In the second paragraph of Article 55 of the Law on Foreigners and International Protection; “From those for whom a deportation decision was taken; Administrative detention decision is taken by the governorship about those who are at risk of escaping and disappearing, who violate the rules of entry or exit to Turkey, who use fake or unfounded documents, who do not leave Turkey within the given time without an acceptable excuse, who pose a threat to public order, public security or public health. In accordance with Article 57/A, alternative obligations may be brought to administrative detention. Foreigners for whom an administrative detention decision has been taken are taken to the removal centers within forty-eight hours by the law enforcement unit that made the arrest.”
If there is a foreigner for whom a deportation decision has been taken, an administrative detention decision may be issued for these seven reasons listed in Article 55. The administrative detention decision is made if there is a risk of disappearance or escaping, if the entry-exit rules to Turkey are violated, if the foreigner has used fake and unfounded documents, if he has not left Turkey without an excuse, if he has not left the foreign country within the required time, if there is a foreign threat in terms of public order, public security or health.
2) Administrative Detention Decision Regarding International Protection Applicants
Administrative detention decision to be given about the applicants, Article 68 of the Law on Foreigners and International Protection; “Applicants cannot be placed under administrative detention just because they have applied for international protection. Administrative detention of applicants is an exceptional procedure. The applicant can only be placed under administrative detention in the following cases:
- a) For the purpose of determining this information, if there is serious doubt about the accuracy of his identity or citizenship information,
- b) For the purpose of preventing him from entering the country unlawfully at the border gates
- c) In case he is not placed under administrative detention, the elements that form the basis of his application cannot be determined.
- ç) If it poses a serious threat to public order or public security. Whether administrative detention is necessary or not is evaluated on an individual basis. In the cases specified in the second paragraph; Before being detained, it is primarily evaluated whether the residence requirement and notification obligation specified in Article 71 will be sufficient. Governorate may determine other procedures instead of administrative detention. If these measures are not sufficient, administrative detention is applied.”
According to the Law on Foreigners and International Protection, the applicant can be placed under administrative detention only in the presence of the reasons stated in Article 68. In the absence of the reasons written in the law, it is illegal to put the applicant under administrative detention. Only in case of conflicting statements regarding identity and citizenship information, and in case of conflict between the statements written in the document and the statements of the applicant, in case of existence of identity document, it can be mentioned that there is a serious suspicion and he/she may be placed under administrative detention. The administrative detention period of the applicant can be maximum thirty days.
III. Authorities Competent to Take the Decision
The administrative detention decision is made by the governorship of the province where the foreigner resides. It has legal consequences without the consent of the person concerned. It is a unilateral act of administration. When the administration decides on administrative detention, it takes this decision itself, puts it into practice, and does not need the consent of the relevant parties or the intervention of the judge while carrying out the decision. The administrative detention decision has an executive nature and is executed ex officio. Administrative detention is considered lawful until it is proven by a court decision that the decision is unlawful.
IV. Implementation Period of the Decision
According to Article 53 of the Foreigners and International Protection Law Regulation, the administrative detention decision must be taken within forty-eight hours at the latest. Since a deportation decision is also required for the administrative detention decision, the foreigner cannot be detained if the deportation decision is not taken within the forty-eight hour period. The duration of the foreigner’s stay in administrative detention is in the third paragraph of Article 55 of the Law on Foreigners and International Protection; “The period of administrative detention in removal centers cannot exceed six months. However, this period can be extended for a maximum of six months if the deportation process cannot be completed due to the foreigner’s failure to cooperate or provide correct information or documents about his/her country.” Administrative detention can last for a maximum of one year, with an extension.
V. Removal Centers
In article 58 of the Foreigners and International Law; “Foreigners taken into administrative detention are kept in removal centres. Removal centers are operated by the Ministry. Ministry, public institutions and organizations, Turkish Red Crescent Association or public benefit associations who have expertise in the field of migration can have these centers run by making a protocol.” Foreigners, for whom an administrative detention decision has been made, remain in the removal center during the period of administrative detention. In removal centres, foreigners have the right to shelter and nutrition, health, education, communication and visit, and to see a lawyer and notary public. But they are not allowed to leave the removal centre.
VI. Alternative Measures to Administrative Detention Decision
Other alternative obligations may be decided by the administration instead of administrative detention. These obligations are regulated in Article 57/A of the Law on Foreigners and International Protection. These obligations can also be applied to foreigners who have been taken into administrative detention and whose period has expired. If the administrative detention or alternative measures have been decided based on the deportation decision, these measures will be removed with the removal of the deportation decision.
In article 57/A of the Law on Foreigners and International Protection; “Alternative obligations to the following administrative detention may be imposed on foreigners listed in the second paragraph of Article 57 or on foreigners whose administrative detention has been terminated:
- a) Residence at a specific address
- b) Notification
- c) Family-based return
- d) Return counseling
- d) On a voluntary basis in public interest services
- e) Collateral
- f) Electronic monitoring. In case one or more of the obligations in the first paragraph are brought to the foreigner, this period cannot exceed twenty-four months. It is obligatory to impose one or more of the obligations listed in the first paragraph of this article to foreigners who are within the scope of the second paragraph of Article 57 and are not placed under administrative detention.”
Alternative measures; Residency at a specific address, reporting, family-based repatriation, return counseling, volunteering in public interest services, collateral and electronic monitoring. If there is a situation where an administrative detention decision is required for the foreigner and it has not been taken, one of these measures is ordered. Alternative obligations may apply to the foreigner for up to 24 months. Several of these measures can be applied to the foreigner at the same time.
Appeal Against The Administrative Detention Desicion
I. Inspection of Administrative Detention Decision
The person for whom an administrative detention decision has been made should be informed about the reasons for administrative detention and legal remedies. There is the right to be brought before a judge, to a fair trial and to an effective application. Administrative detention conditions should be of humanitarian standards. The administrative detention decision should be reviewed periodically.
In the fourth and fifth paragraphs of Article 57 of the Law on Foreigners and International Protection; “Whether there is a necessity for the continuation of administrative detention is regularly evaluated by the governorship every month. When deemed necessary, a thirty-day period is not expected. Administrative detention is terminated immediately for foreigners who are not deemed necessary during the continuation of administrative detention. Alternative obligations to administrative detention are brought to these foreigners in accordance with Article 57/A. The administrative detention decision, the extension of the administrative detention period and the results of the monthly evaluations are notified to the foreigner or his/her legal representative or lawyer together with the reason.”
In which cases there is no necessity for the continuation of the administrative detention measure, in Article 61 of the Regulation on the Implementation of the Law on Foreigners and International Protection; There is no necessity to continue the administrative detention if it is understood that the foreigner cannot be deported within 6 months, it is understood that the foreigner is one of the persons for whom a deportation decision cannot be taken, the risk of escape and disappearance disappears and the foreigner applies for voluntary return support,. The results of the inspection carried out by the governorship on the administrative detention decision; Deciding on the continuation of the administrative detention, ending the administrative detention and giving the foreigner complete freedom, and ending the administrative detention and deciding on alternative measures.
II. Objection to Administrative Detention Decision
Administrative detention decision can be appealed. In the sixth, seventh and eighth paragraphs of Article 57 of the Law on Foreigners and International Protection; “The person under administrative detention or his legal representative or lawyer may apply to the criminal judge of peace against the administrative detention decision. The application does not stop the administrative detention. In case the petition is submitted to the administration, the petition is immediately delivered to the authorized criminal judge of the peace. The peace judge concludes the examination within five days. The decision of the magistrate is final. The person placed under administrative detention or his/her legal representative or lawyer may apply to the magistrate again with the allegation that the conditions of administrative detention have disappeared or changed. Advocacy services are provided to those who apply to the judiciary against administrative detention and cannot afford to pay their attorney’s fees, upon their request, in accordance with the provisions of the Attorneyship Law No. 1136, dated 19/3/1969. Electronic and communication devices can be examined in order to determine the nationality of foreigners under administrative detention. The data obtained as a result of the examination shall not be used other than for this purpose.”
The objection can be made to the criminal judgeship of peace in the place where the administrative detention decision was taken or where the foreigner is kept under administrative detention. With the decision of the High Council of Judges and Prosecutors, dated 26.11.2015 and numbered 1860, the 2nd Criminal Judgeship of Peace in each province is responsible for objections on this matter. Since there is no deadline for the application, the person will always be able to apply during the period of administrative detention. The person placed under administrative detention can make the objection application by his lawyer or legal representative. No other person or their relatives can do it. When the administrative detention decision is appealed, the administrative detention does not stop and the foreigner remains in the removal center until the criminal court of peace announces its decision. The decision period of the magistrate is 5 days. It is not clear when it will start, as it is not regulated in the law and regulation when the five-day period will start. After an appeal is made against the administrative detention decision, the administration that has made the administrative detention decision is expected to give an answer regarding the reasons for this decision. Therefore, in practice, the time starts from the response of the administration.
Regarding the objection to the administrative detention of the applicants in the seventh paragraph of Article 68 of the Law on Foreigners and International Protection; “The person under administrative detention or his legal representative or lawyer may apply to the criminal judge of peace against administrative detention. The application does not stop the administrative detention. In case the petition is submitted to the administration, the petition is immediately delivered to the authorized criminal judge of the peace. The peace judge concludes the examination within five days. The decision of the magistrate is final. The person under administrative detention or his legal representative or lawyer may apply to the criminal judge of peace again with the allegation that the conditions of administrative detention have disappeared or changed.”
Pursuant to the fourth paragraph of Article 59 of the Regulation, the application of the person who has been taken into administrative detention due to the deportation decision to the administrative court against the deportation decision does not stop the administrative detention, it only stops the deportation process. Administrative detention continues until the deportation decision is made by the administrative court.
The Criminal Judgeship of Peace evaluates whether the administrative detention decision was established in accordance with the first paragraph of Article 38 of the Constitution and the form and conditions determined in the Law, and makes its decision. The person for whom an administrative detention decision has been taken must be based on one of the reasons for administrative detention in Articles 57 or 68 of the Law on Foreigners and International Protection, and this reason must actually exist in the concrete case. If the reasons based on the administrative detention decision do not reflect the truth, the criminal judgeship of peace should cancel the administrative detention decision.
As a result of the examination, the peace judge may decide to continue or terminate the administrative detention. When a decision is made regarding the continuation of administrative detention, the person under administrative detention, his legal representative or lawyer may apply to the magistrate again with the allegation that the conditions of administrative detention have disappeared or have changed. When the decision regarding the termination of the administrative detention is made, this decision is notified to the General Directorate and the residence obligation and notification obligation or other obligations may be imposed on the foreigner whose administrative detention application has been terminated.
In the Law, it is regulated that the administrative detention period in Article 68 cannot exceed thirty days, and the administrative detention decision made in accordance with Article 57 cannot exceed one year. However, since there is no provision stating that the administrative detention will automatically end if the thirty days expire, the administration or the magistrate must decide to end the administrative detention due to the expiry of the maximum period stipulated for the administrative detention. If the administration does not make such a decision, it is necessary to appeal to the criminal judge of the peace.
Istanbul 2nd Criminal Court of Peace stated in its decisions that there is no risk of escape and disappearance due to the fixed address of the foreigner for whom an administrative detention order has been issued, and decided to terminate the administrative detention imposed on the objector. In addition, according to the judge, the fact that the foreigner has real estate registered in Turkey shows that there is no risk of escape or disappearance.
According to the Istanbul 2nd Criminal Court of Peace; “It is not possible for the person to personally apply to the authorities for a long-term residence permit, therefore it is not possible to pose a threat to the public” According to the judgeship; The fact that the person makes a false statement about his identity information to prevent the execution of the deportation decision and acts in violation of the obligation to reside at a certain address and notify without a valid excuse indicates the existence of the risk of escape and disappearance. According to the judge, trying to leave the country using someone else’s passport does not always lead to administrative detention.
According to the Istanbul 2nd Criminal Court of Peace, if there is an investigation regarding a terrorist organization, if the defense of the foreigner as a suspect is applied, the evidence should be examined. Applying for his defense alone is not sufficient for the existence of a reason for administrative detention. But in another decision, Istanbul 2nd Criminal Court of Peace; “Considering the dangerous situation of the applicant according to the evidence reflected in the file, it is also taken into account that the administrative detention period of about five months may lead to the victimization of the applicant, that alternative administrative detention measures can be applied, that the objector has an accessible address in the Zeytinburnu district, and in this sense, there is no risk of escaping or getting lost. with the acceptance of ..” and stated that alternative measures could be ordered.
According to the decisions of the Criminal Judgeship of Peace, the existence of restriction codes on general security alone can make administrative detention legal. In the presence of the G-87 and G-82 restriction codes, it was deemed sufficient to prove that the foreigner posed a threat to public security, and it was not deemed necessary to be an additional evidence.
If a deportation decision is taken for a foreigner whose residence permit has not been granted or canceled, he may be placed under administrative detention only if it is understood that he used false documents in the application or if it poses a threat to public order, public security or public health. Administrative detention decision cannot be taken on the grounds that there is a risk of escaping or disappearing about the foreigner. If received, it must be accepted when appealed.
Since the decisions made by the peace judge are final, no legal action can be taken against this decision. However, there is a possibility of individual application to the Constitutional Court and to the European Court of Human Rights.
III. Application to the Constitutional Court
Article 45 of the Law on the Establishment and Proceedings of the Constitutional Court; “Anyone can apply to the Constitutional Court with the claim that any of the fundamental rights and freedoms guaranteed in the Constitution, within the scope of the European Convention on Human Rights and additional protocols to which Turkey is a party, have been violated by the public force.” Since the right of individual application to the Constitutional Court is not only a right granted to Turkish citizens, foreigners who have been given an administrative detention decision can also make an individual application to the Constitutional Court.
Since the ordinary legal remedy has been exhausted by applying to the criminal judge of peace during administrative detention and the decision by the judge, the person can make an individual application after this decision. Administrative detention is an administrative action regarding the right to personal security, which is protected under Article 19 of the Constitution and Article 5 of the European Convention on Human Rights. It is within the scope of individual application to the Constitutional Court. An individual application may also be filed, stating that the right to an effective application in Article 13 of the European Convention on Human Rights has been violated, due to the closure of the judicial remedy against the decisions of the peace judgeships. An application to the Constitutional Court must be made within thirty days. According to the decisions of the Constitutional Court, the 30-day period starts from the moment the person is released at the latest.
As a result of the examination of the application on the merits, the Constitutional Court decides whether the right of the applicant has been violated. If a violation decision is made, the Constitutional Court also decides what needs to be done to eliminate the result. If a violation decision is not made in the individual application of the person who has been given an administrative detention decision, he can apply to the European Court of Human Rights.
According to the decisions of the Constitutional Court, issuing an administrative detention decision in accordance with the law does not entitle the administration to apply this measure without restriction. The administration is obliged to continue the implementation in accordance with the procedure clearly stated by the law. For this reason, the reasons for the administrative detention are not notified to the person, the evaluations are made sloppy by the Governorship or it is not clear whether these evaluations are made, the result is not notified to the relevant person, the decisions made by the peace judgeships are based only on the claims of the administration and the objection is made without examining the merits, and the reasons for the extension of the six-month period are not clear. Failure to do so is an indication that the administration did not act in accordance with the necessary diligence criteria while carrying out this process. In these cases, there is a violation. According to the Constitutional Court, if the deportation or extradition proceedings are not carried out with due diligence, it is no longer possible to talk about personal freedom and the legitimacy of deprivation.
According to the Constitutional Court, since administrative detention is in the nature of an administrative action, if this action is unjustified, an administrative judicial remedy can be applied for compensation for the damage caused by this action. In addition, the person deprived of his liberty without an administrative detention decision may apply to a full remedy action in the administrative court against unfair detention.
IV. Application to the European Court of Human Rights
Individual application to the European Court of Human Rights is regulated in Article 34 of the European Convention on Human Rights. Anyone who claims that one or more of the rights set forth in the European Convention on Human Rights and its additional protocols has been violated by the Contracting State can apply to the court. Foreigners who have been given an administrative detention order may also apply to the court, as the applicant does not have to be a national of the State party being sued. The applicant may apply to the European Court of Human Rights within 6 months from the notification of the decision of the Constitutional Court.
An application can be made to the European Court of Human Rights due to a violation of Article 5 due to the restriction of personal freedom by administrative detention, a violation of Article 13 due to the fact that it is only possible to apply to criminal judgeships of peace, and Article 3 due to administrative detention conditions.
According to the European Court of Human Rights, administrative detention must be for the purpose of carrying out the deportation process and the period of detention must not exceed the period necessary for the realization of the purpose. Moreover, according to the European Court of Human Rights, there must be an effective domestic remedy for compensation for damage resulting from unjustified detention.
In its assessment of whether domestic law provides adequate procedural safeguards against arbitrariness, the European Court of Human Rights considers whether there is a time limit for the period of detention and whether a remedy is available against detention. However, subparagraph f of the first paragraph of Article 5 of the Convention does not impose on states the obligation to set a maximum period of detention under the provisions of this article and to ensure that the detention is automatically subject to judicial review. According to the Court, compliance with domestic time limits or the existence of automatic judicial review alone do not guarantee that the system of immigration detention is contractually compliant.
V. Termination of Administrative Detention
Administrative detention ends in cases where the deportation decision is annulled by the judicial authorities, the decision to terminate the administrative detention, the expiry of the administrative detention period, and the foreigner’s request for return.
In the third paragraph of Article 57 of the Foreigners and International Protection Law Implementation Regulation; “The deportation and, if any, administrative detention decisions of foreigners whose deportation decision is canceled by the judicial authorities are terminated. Necessary studies are carried out regarding their legal stay in our country.” In the fourth paragraph; “When a decision is made by the governor’s office or the magistrate to terminate the administrative detention, the foreigner’s administrative detention is immediately terminated and he is invited to leave Turkey, provided that there is no court decision preventing him from going abroad.” provision is included. During the administrative detention of the foreigner, the governor’s office should regularly assess whether the administrative detention should be continued or not, and for foreigners who are not required to continue the administrative detention, the administrative detention should be terminated immediately.
In the seventh paragraph of Article 59 of the Foreigners and International Protection Law Implementation Regulation; “… Administrative detention of foreigners who cannot be deported within the stipulated periods for administrative detention is immediately terminated by imposing
certain administrative obligations.”
In Article 87 of the Law on Foreigners and International Protection; “From applicants and persons with international protection status who want to return voluntarily, financial and in-kind support can be provided.”. In the second paragraph of Article 63 of the Foreigners and International Protection Law Implementation Regulation; “Foreigners who request voluntary return while in the removal center are taken to the border gate by the general law enforcement under the coordination of the provincial directorate. Deportation and administrative detention decisions regarding them are terminated when they are transferred to the border gate, and exit procedures are recorded as “voluntary return” or “voluntary departure.” When the foreigner requests return based on these articles, the administrative detention ends and he can leave the foreign country.
Conclusion
Since the administrative detention decision restricts the freedom of the foreigner, it is very important to take a decision in accordance with the Law on Foreigners and International Protection, the Constitution and the European Convention on Human Rights, and to carefully evaluate the reasons for the administrative detention decision. If this measure, which deprives a person of his liberty, is not implemented in accordance with the law, it may violate the rights of many people. Foreigners must be informed about the deportation decision and administrative detention decision and the legal remedies should be explained to them. If the decision of the administration is thought to be unlawful, it is of great importance to appeal and liberate the foreigner. If there is an unlawful situation in order to protect the rights of foreigners for whom an administrative detention decision has been made, they should definitely appeal by consulting a lawyer attorney at law.
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