What is the Principle of Non-Refoulement? Its Place in Turkish Law (LFIP Art. 4)

Introduction:

The principle of "non-refoulement," one of the cornerstones of international refugee law and human rights law, is a peremptory rule of law (jus cogens) prohibiting a person from being sent to a country where they would be subjected to torture, inhuman or degrading treatment, or mortal danger. This principle constitutes one of the most fundamental responsibilities of states towards asylum seekers and refugees. The Republic of Turkey has also explicitly incorporated this universal principle into its domestic law with Article 4 of Law No. 6458 on Foreigners and International Protection (LFIP) and has introduced safeguards for its implementation. This article will examine in detail what non-refoulement means, its place in international law, and how it is regulated in Turkish law within the framework of Article 4 of the LFIP.

1. What is the Principle of Non-Refoulement?

In its most general definition, the principle of non-refoulement is the obligation of no state to return or extradite a person in any manner whatsoever to the frontiers of territories where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion, or where they would be in danger of being subjected to torture or other serious human rights violations. This principle provides absolute protection if certain risks exist, regardless of whether the person has refugee status.

Foundations in International Law:

• 1951 Geneva Convention (Convention Relating to the Status of Refugees): Article 33/1 states that no Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
• United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Article 3 stipulates that no State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
• European Convention on Human Rights (ECHR): It is a principle developed through the case-law of the European Court of Human Rights (ECtHR) under Article 3 (prohibition of torture). The ECtHR has ruled that returning a person to a country where there is a risk of treatment contrary to Article 3 would violate the Convention.

2. The Principle of Non-Refoulement in Turkish Law (LFIP Art. 4)

Article 4 of the LFIP, located in the "Fundamental Principles" section, regulates the principle of non-refoulement as follows:

"ARTICLE 4 – (1) No one within the scope of this Law shall be sent to a place where he or she would be subjected to torture, inhuman or degrading treatment or punishment, or where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinions."

Scope and Importance of LFIP Article 4:

• Broad Scope: The phrase "No one within the scope of this Law" covers not only refugees or international protection applicants but all foreigners in Turkey кто (who) are at risk of deportation.
• Absolute Prohibition: The article unequivocally prohibits sending if the listed risks exist. This is an important safeguard limiting the administration's discretionary power.
• Two Main Risk Categories:
  • Risk of Torture, Inhuman or Degrading Treatment or Punishment: This refers to serious threats to a person's physical or mental integrity.
  • Threat to Life or Freedom (Geneva Convention Criteria): Situations where a person's life or freedom would be endangered due to race, religion, nationality, membership of a particular social group, or political opinions.
• Areas of Application: This principle must be taken into account in all administrative and judicial processes, such as the assessment of international protection applications (especially within the scope of subsidiary protection), the issuance of deportation orders, and extradition of criminals.
• Relation to LFIP Article 55: LFIP Article 55 (Foreigners Who Shall Not Be Subject to a Deportation Order) largely concretizes the principle of non-refoulement in Article 4.

3. What Can Be Done in Case of Violation of the Non-Refoulement Principle?

If a foreigner is sent or faces the danger of being sent to a country with serious risks, contrary to Article 4 of the LFIP, various legal remedies can be pursued:

• Annulment Lawsuit in an Administrative Court: An annulment lawsuit can be filed against a deportation order, alleging that the principle of non-refoulement would be violated (LFIP Art. 53).
• Individual Application to the Constitutional Court: An individual application can be made to the Constitutional Court, alleging that fundamental rights such as the right to life or the prohibition of torture would be violated, after domestic remedies have been exhausted.
• Application to the European Court of Human Rights: After domestic remedies have been exhausted, an application can be made to the ECtHR under Article 3 (prohibition of torture) and, in conjunction, Article 13 (right to an effective remedy) of the ECHR. In urgent cases, the ECtHR can issue an "interim measure" to halt the deportation process.

4. Are There Exceptions to the Principle of Non-Refoulement?

Article 33/2 of the 1951 Geneva Convention allows for exceptions to the non-refoulement principle for certain refugees considered a danger to national security or public order. However, the non-refoulement principle based on the prohibition of torture (under UN Convention against Torture Article 3 and ECHR Article 3) is absolute and has no exceptions. This means that if a person is at risk of being subjected to torture in the country to which they would be sent, they cannot be returned, even on grounds of national security or public order. The wording of LFIP Article 4 also supports this absolute protection.

Conclusion and Legal Assistance:

The principle of non-refoulement is a universal principle that plays a critical role in protecting human dignity and fundamental rights. As a foreigner in Turkey, if you believe you face the risk of torture, inhuman treatment, or mortal danger in your country of origin or another country to which you might be sent, this principle is your most important legal safeguard. In the event of such a risk, it is vital to seek immediate assistance from an expert lawyer in foreigners' law to prevent your deportation and to apply for protection.

As SKF VISION LAW, we provide comprehensive legal consultancy and representation services to our clients regarding allegations of violation of the non-refoulement principle, annulment lawsuits against deportation orders, international protection applications, and applications to the Constitutional Court and the European Court of Human Rights. If you believe your life or freedom is in danger, contact us without delay to protect your rights.