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COMPARATIVE STUDY OF CRIMINAL JUSTICE SYSTEM FOR THE REFUGEES IN INDIA AND TURKEY BY : - SWARNAV BISWAS & ANTARA MANDAL
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COMPARATIVE STUDY OF CRIMINAL JUSTICE
SYSTEM FOR THE REFUGEES IN INDIA AND TURKEY
Author: - SWARNAV BISWAS,
1st Year, B.A.LL.B.H, Christ (Deemed
To Be University), Delhi Ncr
No.+91-8274802270
Co-Author:- ANTARA MANDAL
,1st Year, B.A.LLB.H, Christ (Deemed
To Be University), Delhi Ncr
No.+91-7894958659
Abstract: -
Turkey hosts world’s largest number of refugees with almost
3.7 million people. The major reasons behind turkey’s such a huge number of
refugees the political and armed conflicts in the neighboring countries. Most
of the population consists of Syrians where almost 320,000 are asylum-seekers
under international protection. According to UN Refugee Agency, Turkey is
making considerable efforts to provide relief and basic needs such as providing
Healthcare and education through its Temporary Protection Regulation. In other
hand, India has refugee crisis since the partition of India in 1947 alike
Turkey. The reasons behind consistent growth of refugees per year is same with
the reason of Turkey. Both the countries are facing the refugee crisis in the
matter of justice of the crimes upon them. The impact of crimes done by
immigrants is a heated debate. Turkey’s crime rate by refugees is obscure and
not many ground reports or statistical reports are available. The research
would be focusing on the comparative analysis of the Rights provided by the
government of Turkey and The Government of India to the refugees and the It
would also revolve around the type of criminal activities and the nature of the
crimes done by the refugees and what are the judicial provisions for the same.
The Research paper will discuss what are the procedural laws for aliens for
seeking justice in both the countries As The research will conclude by
criticizing and identifying the demerits of the refugee laws in both country
and try to put a value towards society.
Keywords- Refugees, Refugee Justice System, Refugee Crisis,
Criminal Justice, Constitutional protection, 1951 Convention, Human Rights,
Principle of Non-refoulment
Introduction
The world in the recent past years has undergone major
political catastrophic events and has seen an increasing number of refugees
population all over the world. What needs to be noted is that not just
political disturbances and war trigger the refugee counts but also climatic
change and economy play a vital role. The major factors behind migration remain
armed conflicts, political tensions, ethnic intolerance, climate change, economic
depression and religious intolerance and for all this reason, the World is
facing humanitarian crisis even in the twenty-first century, era or
globalization. Even now there is a Refugee influx in world. The Goal of the
UN’s 1951 Refugee Convention has not been achieved yet as after the World War,
there may be no war held further but there is massive refugee burden all over
the world for some separative country.
Scope of the Comparative study of
Refugee Justice System in Turkey and in India: -
The trend shows us that the refugee burden is usually
more towards tolerant and resourceful countries. The world is evident that
India and Turkey have received enormous number of refugees in the recent times
and even in past repetitively. India has long history regarding acceptance of
refugees. The refugee influx started since Independence and the partition in
1947. Whereas Turkey’s refugee’s influx started since the declination of
Ottoman empire, in around the 18th century. Turkey has been the
world’s largest refugees holding host country since the past eight years and at
present holds around 4 million people (about twice the population of New
Mexico) from different countries. Turkey’s refugee response is based on the Law
on Foreigners and International Protection (LFIP) and the Temporary Protection
Regulation. Under these laws the refugees from Syria and stateless persons have
been granted with temporary protection since 2011. Refugees apart from Syria
must apply for international protection applicants and must go through
individual status determination. India was not part of UN’s 1951 Refugee
Convention but bounded by the principle of non-refoulment of recent
International Law whereas Turkey is a part of the 1951 Refugee Convention and
most of the laws there are in accordance with its guidelines.
Turkey is situated along a path for mixed migrant
flows that also includes those who require international protection like India.
Some of those who were intercepted and detained may require international
protection in Turkey and in India both including unaccompanied minors, victims
of human trafficking, and other vulnerable individuals. Although the borders
are strictly controlled. large ongoing international conflicts and crisis like
Taliban aggression in Afghanistan, Syria, Russia-Ukraine War, in the Arunachal
Pradesh and China border conflict, and even Rohingya Muslim crisis could lead
to new population flows. The socio-political conflicts raise the vulnerability
in the situation in Afghanistan, Pakistan, Tibet, Bangladesh, SriLankan and
India.
People in Turkey are becoming more tolerant of
refugees rather than being hospitable toward them. They are expressing their
exhaustion at having migrants live in their neighborhood more frequently. There
is a rising belief that the presence of immigrants is taxing the country's
meagre services and resources, raising competition for jobs, and encouraging
antisocial behavior. Facing the similar
problems, India has formulated Citizenship Amendment Act, 2019 and NRC as a
refugee policy. These policies are criticized in international forums till date
as they are inclined towards the religious majority in India as India is Hindu
Majority Country with secular in nature for its constitution. Refugee crisis in
Turkey is similar with the Refugee Crisis in India by the nature. As like
Turkey, India is an attractive and a safe shelter for the asylum seekers so
internal security and the job market security for the natives is in question.
Comparative
Analysis of Refugee Crisis in
Turkey
and India: -
Refugee Crisis in Turkey
Refugee
Crisis in India
India has start witnessing of coming enormous number
of refugees from its neighboring countries since 1947, time of Independence of
India and the partition of India held in that very year. By the year 2010,
India has hosted nearly 4.5 lacs refugees from the international territories.
India was neither a part of 1951’s UN’s Refugee Convention nor of 1967 Refugee
protocol to repute refugees. But Refugee laws and refugee rights are matter of
human rights and humanitarian laws. The main sources of refugees in India are
from Bangladesh, Pakistan, Tibet, Myanmar and Afghanistan. In the war with Pakistan in 1948, The
partition refugees were served with refugee camps as the home of temporary
shelter but after Independence, the partition refugees get citizenship of India
automatically without any discrimination. The newly formed government of
Independent India had faced problem regarding rehabilitation of partition
refugees from East and West Pakistan. The next massive refugee influx started
in the year 1959. Political persecution of Dalai Lama by China Government led the
Tibetan community of 1,00,000 to flee from Tibet and seeking political asylum
in India led by the great spiritual and political leader of Tibetan Community,
Dalai Lama. The seat of Dalai Lama was settled at Dharamsala and the refugees
from Tibet and Himachal Pradesh were settled across northern and north-eastern
India states. The Tibetan refugees were basically followers of Buddhism, so
they love to love with peace and harmony with other social and cultural
communities of India. Another scenario of refugee influx was from Bangladesh
during 1971’s Bangladesh war of Independence. In 1971 War of Independence in
Bangladesh forced approximately 10 million Bangladeshi Refugee to leave
Bangladesh and settled in the north-eastern states, as Assam, Tripura and Manipur.
Another remarkable refugee influx was during the Sri
Lankan Civil War where more than 1.34 lakhs of Sri Lankan Tamil Refugee took
shelter in India in between the period of 1983-1987. Tamil refugees from Sri
Lankan were settled in the southern part of India. In the contemporary time of
Sri Lankan Civil war, Soviet invasion in Afghanistan was occurred in
Afghanistan, for that reason only number of Afghan Refugees took shelter in
India, and they kept coming in India for settlement even in subsequent years.
Most of them have settled in Delhi. There is another heated debate existing yet
about Rohingya Muslims since 2018. There are approximately 40,000 Rohingya
Muslims who sought asylum from India[2],
but India is cold shouldered to Rohingya Muslims as India is concerned about
its internal security as India is suspecting the link between terrorist
organizations and Rohingya Muslims. So, for that reason India has requested
Myanmar Government to take back all the Rohingya back to their country as India
would not accept the Rohingya Muslims and would not give them shelter in India.
Comparative Analysis of Legal
Frameworks for Refugee protection in Turkey and India: -
Refugee laws in Turkey
Turkey is a party to the 1951 Refugee Convention and
the 1967 Protocol. The country has been making considerable efforts by passing
legislative and institutional reforms to build an effective national asylum
system in compliance with international standards. In April 2013, the country
took its very first initiative to address the issue, Law on Foreign and
International Protection, endorsed from 11th April 2014, established
the Directorate General of Migration Management (DGMM). The DGMM is one of the
main entities of policy making and proceedings for foreigners and refugees in
Turkey. The Temporary Protection
Regulation was passed on 22nd October 2014 to provide temporary
protection for refugees as mentioned above it provided protection to the Syrian
refugees of the Syrian civil war. Considerable efforts have been made by the
government of Turkey to provide relief under different provisions.
As of 31st December 2022, around 3.6
million Syrian have fled to Turkey to seek asylum. [3]
Turkey being a party to the 1951 convention it has a geographical limitation
only to the people originating from Europe. Despite this limitation, it
provides temporary sanctuary and protection to non-European refugees, to which
it is not obliged to[4].
Prior to the implementation of the Law on Foreigners and International
Protection3 (LFIP) in 2014, Regulation No 1994/6169 on the Procedures and
Principles linked to Possible Population Movements and Aliens Arriving in
Turkey mostly governed asylum-related proceedings in Turkey. [5]
The 1994 Regulation had plenty of shortcomings and failed to provide adequate
relief, it instead added to the hardships of the asylum seekers. There were no
allusions to the fundamental human rights of asylum seekers and refugees in
this regulation, which imposed a highly severe deadline for filing applications
for international protection.[6] In
addition, the 1994 Regulation made no reference to the non-refoulement
principle and offered no protections against the extended detention of refugees
and asylum seekers. In a series of instances involving the deportation,
custody, and treatment of asylum seekers and refugees, the European Court of
Human Rights (ECtHR) has determined that Turkey has violated articles 3, 5, and
13 of the European Convention on Human Rights (ECHR).[7]
Subsequently, Turkey adopted its first law on asylum seekers and refugees that
is the Law on Foreign and International Protection (LFIP). The Parliament
passed Law No. 6458 on Foreigners and International Protection (LFIP) in 2013
(Official Gazette 11 April 2013-28615) that went into effect on April 11, 2014.
This law was passed in response to the surge in the number of asylum applicants
from Syria beginning in 2011. The asylum laws in Turkey today are based on this
statute.
The LFIP introduces "international
protection" for aliens and stateless persons who are not eligible for
refugee or conditional refugee status but have a justifiable fear of returning
to their country of origin or country of [former] habitual residence to comply
with EU legislation in addition to refugee and conditional refugee status (Art 63).
The LFIP's non-refoulement principle gives foreigners a measure of protection
when it comes to issues with admission into Turkey under article 8.
In April 2013, the Law on Foreigners and International
Protection (LFIP) was adopted, which prepared the path for increased access to
justice for those seeking asylum, those given temporary protection, and
safeguarding in Turkey. This included having access to legal representation
during appeals for refugees and others seeking international protection, as well
as having recourse to judicial review by the Administrative Court and the
Criminal Court of Peace. Other pieces of legislation that offer the right to
legal assistance to Turkish citizens seeking international protection
supplement this provision.
Criminal Justice System:-
As a result of the almost seven-year-old civil
conflict in Syria, immigrants from that country fight to enter other nations
illegally to either save their own lives or seek a better social and economic
existence. These initiatives not only subject immigrants to catastrophes that
can never be repaired in terms of their lives and dignity, but also leave the
countries dealing with immigrant issues that are unmanageable.
This issue naturally affects the countries who share a
border with Syria, particularly Turkey, but it has grown to be a significant
issue in even transnational nations like Europe.
The assessment of the Turkish Legal System on Migrant
Smuggling Crimes is a crucial matter because of the drastic changes in national
laws pertaining to migrant smuggling, including international agreements, such
as readmission agreements, and updates to immigration policy. Turkish Law No.
4771 and Turkish Penal Code No. 765, with the extra regulation issued in
Article 201/a dating back to 03.08.2002 via "Protocol," introduced
the crime of smuggling migrants for the first time.
Based on the "United Nations Convention Against
Transnational Organized Crime" convention, the "Action Against
Smuggling of Immigrants by Land, Sea, and Air" initiative. Before this
arrangement, the Turkish Penal Code No. 765's article 313 was used to
determine guilt of creating an organization to commit crimes in the case that
the activities relating to migrant smuggling were carried out as part of
criminal activity. If there was no organizational structure involved in the
smuggling of immigrants, Article 36 of the Passport Law was followed to
create the procedure for dealing with the offender (Canceled: 4.4.2013-6458 /
124)13 14.
With slight modifications to the regulation under
article 201/a of the Turkish Penal Code No. 765, the present crime of migrant
smuggling is covered in the section on "international crimes" in
Article 79 of the Turkish Penal Code numbered 5237.
Constitutional Protection for
Refugees in Turkey: -
The concept of non-refoulement and the right to asylum
are not explicitly recognized by the 1982 Constitution. However, we may
discover a constitutional justification for the non-refoulement concept as well
as other rights of asylum seekers.
·
Everyone
has the right to life, as well as the freedom to safeguard and develop both
their physical and spiritual selves, according to Article 17.1.
·
However,
no one shall be made to endure torture, cruel treatment, or punishment that is
incompatible with treating people with dignity (Art. 17.3).
·
Additionally,
Article 5 places a duty on the state to remove all barriers to the exercise of
individual rights and to create the conditions necessary for the development of
the person's material and spiritual existence.
·
According
to Article 10 of the Constitution, everyone is entitled to equal protection
under the law without being subjected to any kind of discrimination based on
their language, race, color, sex, sexual orientation, political beliefs,
philosophical views, religion, or any other factor.
·
However,
the Constitution makes no distinction between citizens and non-citizens when it
comes to certain rights and freedoms, such as life, liberty, and security. As a
result, under Article 10 of the 1982 Constitution, alienage in and of itself is
not a justification for preferential treatment.
·
However,
the Constitution also specifies certain specific restrictions for foreigners.
Some essential freedoms and rights, primarily political rights, that are
specifically reserved for citizens are not recognized by the Constitution as
belonging to foreigners. Additionally, aliens are granted various rights with
some restrictions, such as the ability to petition (Art 74).
·
However,
Article 16 of the Constitution offers a special guarantee for foreigners.
Therefore, laws may limit the fundamental liberties and rights of foreigners in
a way that is compliant with international law. Because "international
law" is mentioned in Article 16,
·
it
is important to quickly clarify where it stands in Turkish domestic law. The
Constitution's Article 90.5 states that foreign agreements that have been
properly implemented have legal validity.
If there are conflicting provisions between an
international agreement and a domestic legislation on the same subject, this
paragraph also provides that properly implemented international accords
regarding fundamental rights and freedoms have precedence over domestic law.
The international human rights systems include Turkey. It ratified important
international human rights treaties such as the European Convention on Human
Rights (ECHR), the 1951 Convention, and its 1967 Protocol with territorial
restriction. Considering this, along with Article 16, we may assert that
Article 90.5 of the Constitution offers a major constitutional guarantee for
anyone seeking asylum or shelter.
Comparison of refugee rights in
Turkey with 1951’s UN’s Refugee Convention: -
The concept of non-refoulement is unqualifiedly
recognized in Article 4 of the LFIP. In contrast to the 1951 Convention,
Article 4's non-refoulement clause includes both refugees and non-refugees who
need international protection as well as other foreigners who entered Turkey
lawfully or unlawfully. But Article 4 does not have an exception provision, in
contrast to the 1951 Convention. Consequently, the LFIP fulfils the
requirements set forth by the ECTHR for procedural guarantees.
The protection system in Turkey has been significantly
influenced by the Refugee Convention. According to the Refugee Convention and
the privileges that come with that status, those who fit the criteria of a
refugee and are from Europe may be granted refugee status in Turkey.
Contrarily, under Turkish law, persons who meet this description but are not
natives of Europe may be granted "conditional refugee" status.
Although the conditional refugee status is only transitory in principle, it is
not in actuality. In other words, the creation of an exceptional protected
status in Turkey with very few rights attached is the result of the Refugee
Convention and the geographical restriction authorized by it[8].
Without lifting the geographical restriction to the
1951 Convention, Turkey has established an asylum system that is legally
capable of providing international protection to all those in need in
accordance with the international standards set out in the 1951 Convention and
reflected in the EU acquis.
Refuge Laws in India
The Refugee Laws and the definition of Refugee was
come into existence only after the 1951’s Un’s Refugee convention to negate
humanitarian crisis further after conclusion of World War II. Despite of having
refugee crisis in South Asian countries, no country from that region was
signatory to the 1951’s Convention. Even India didn’t take part in that
convention as a signatory as India thought that the Un’s refugee convention was
basically Eurocentric. According to the Refugee convention 1951 and 1967’s
refugee protocol defines who is refugee and what are the duties of the hosting
countries who are signatories to the 1951’s convention. But as India was
non-signatory to this convention there is no legal boundaries for taking
refugees or not. So, there is no domestic legal system in India which describes
the refugee laws and refugee rights. Despite not being a signatory to the
convention, India has provided relief to massive number of refugees from its
neighboring countries like Bangladesh, Pakistan, Tibet, Sri-Lanka and
Afghanistan. It is quite impossible to ratify the terms and conditions of
1951’s refugee convention for its geo-political location and its diversity in
population. India had hosted refugee crisis before the refugee convention
itself.
But India is bound by non-refoulment policy of
international law which secure the human rights and interest of refugee.
According to the non-refoulment customary principle, No Country shall deport,
export or forcefully return the refugee back to his original territory against
his will or if there is a reasonable threat to his life, liberty and freedom.
The definition is not absolute as the countries have the authorization to
scrutinize the matter of national security and national interest. India has
long practice of the principle of non-refoulment as customary international
law. Despite of not ratifying the principles of 1951’s convention, India
ratifies the legal framework of many international conventions like UN
Declaration Territorial Asylum (1967), Universal Declaration of Human Rights
(1948) and many more. The treaties impose the legal obligations in India for
refugee protection.
Constitutional Protection for
Refugees in India: -
There is no statute particularly which deals with
refugee law and refugee protections but some of the statutes in India deals
with the protection of refugee and its interest. India has regarded refugees as
foreigner under the municipal laws and govern them under Foreigners Act, 1939,
Passport (Entry to India) Act, 1920, Passport Act,1967 and the Extradition Act,
1962. Refugees are entitled to have the fundamental rights under Constitution
of India, 1950.
·
Article
14 guarantees equality before law and equal protection of law to all citizens
and eradicates all the discrimination between refugee and a citizen of Country.
·
Article
21 defines that everyone in this country has right to life and right to life
with dignity, so The Supreme Court had reinterpreted the wide scope of Article
21 and 14 in the matter of Refugee Protection.
·
These
reinterpretations of Article 21 and 14 opens a vacuum for implementing other
fundamental rights protected by Constitution of India for refugee and
immigrants also along with citizens of India. Article 20 of Constitution deals
with Ex post facto Law which is a right against self-incrimination and right
against double jeopardy.
·
Any
refugee or immigrant can claim his right against arrest and detention under
Article 22 and it also secures the rights under Article 32 and 226 where right
to seek justice to higher and apex Court of the land against any unjust arrest
or detention by state. By Article 32, Supreme Court has authority to enforce
the fundamental rights and special rights to the refugee.
·
Any
refugee from any other international territory can profess his/her practice
religion and they got freedom of conscience under Article 25-28.
Comparison of refugee rights in India
with 1951’s UN’s Refugee Convention: - As India was not party to the 1951’s
Refugee Convention, India don’t ratify any laws or policy of the convention.
India don’t have any domestic legal framework specifically for refugee protection
either, but as abovementioned constitutional rights are available to the
refugees which are like the policies of the UN’s Refugee Convention 1951 and
Refugee Protocol of 1967. The Comparisons are like this convention. India don’t
have any domestic legal framework specifically for refugee protection either,
but as abovementioned constitutional rights are available to the refugees which
are like the policies of the UN’s Refugee Convention 1951 and Refugee Protocol
of 1967.
The Comparisons are like this --
·
Article 7 as India provides refugees the same
treatment as all aliens.
·
Article 3 as India applies a policy of
non-discrimination.
·
Article 3A as no penalty is imposed on illegal
entry.
·
Article 4 where religious freedom is
guaranteed.
·
Article
16 as free access to the courts is provided.
·
Article
21 allows freedom of housing and refugees need not stay in camps.
·
Article
27 and 28 provides identity and travel cards to refugees.
·
Article 33 provides the principle of
non-refoulement[9].
As demerits, Passport Acts makes no difference between
a refugee and a foreigner so there is a loophole which opens the wide scope or
risk to arrest refugees as illegal immigrant and deport them back as they don’t
have the valid passport. It can be used as a mechanism to abuse a particular
community arbitrarily. The recent Citizenship Amendment Act 2019 deals with ad
hoc administrative decisions regarding protection of refugees in absence of
domestic legal framework for refugees. According to the CAA, it offers
citizenships to Hindus, Parsis, Jain, Buddhist, Sikhs and Christians from
Bangladesh, Pakistan, and Afghanistan. This clearly show the thick
discrimination to the Muslims as India is not providing citizenships only to
the Muslims who are coming from any country before 2019.
Comparative Study of Crimes against
Refugees in Turkey and India: Crimes against Refugees in Turkey
After the civil Arab Spring upheavals, Syrians began
to flee, and Turkey welcomed its first Syrian migrants in April 2011. The
Turkish Disaster and Emergency Management Authority (TDEMA) was initially
charged by the government with providing humanitarian assistance and emergency
response, including establishing camps for the refugees. As the number of
refugees mounted, many began fleeing the camps and settling in cities. The
Turkish Directorate General for Migration Management (TDGMM), which was formed
by the Turkish government in October 2014, is now in charge of registering
refugees and coordinating all policies pertaining to them. The Syrian refugees'
rights to access public health care, public education, and social security were
specified under the Temporary Protection Regime that the Turkish government
approved at the same time. Syrians have free access to public health and
education services, according to this.
The data put forward by the Turkish Statistical
Institute (TURKSTAT) states that majority of the crime done by Syrians are
uneducated and poor. TURKSTAT provides a brief data on crimes categorically-
assault, homicide, murder, theft, production and supply of drugs etc.
Let alone not just the Syrian refugees but also the
citizens and public servants have been reported of doing crimes against the
refugees.[10] Reports
from reputed international media houses have given a ground reality check on
how the Turkish authorities have been treating the asylum-seekers. A
documentary on the Syrian refugees and their forceful detention by Al Jazeera
clearly showcase how the refugees are thrown into miserable situations.[11]
Individual NGOs in assistance with International Fund Raisers provide education
and job opportunities to the Syrian refugees in Turkey.
Crimes
against Refugees in India
Most of the refugees from the source countries belong
to marginalized class who are living in poverty, so education and a life of
minimum quality is a daydream for them. They can be easily manipulated and
dominated by the elite or higher class of the society. There are many cases
reported and many cases remained unreported in India which are of commencing
unjust crimes against refugees. That will show the cruelty of the state towards
refugee.
According to a news report of an online portal named
India Spend, Noor Banoo, a Rohingya Refugee, 40-year-old lady witnessed the
detention of her family including her husband Mohammad Sultan, 43, sons Nazrul
(20), Rizwan (19) and Amir (12) for illegally entering the Indian Territory
from Bangladesh as they didn’t have valid passport in April 2017. They were
arrested from Thakur Nagar railway station nearby Kolkata for travelling in
train to Delhi. As Noor Banoo missed the train so she was not arrested along
with her family.
Noor Banoo had tried her best for seeking justice and
let their family free from the police. The lawyers demanded 1 lakh rupees for
the case which was impossible for her. She run pillar to every post for
collecting the lawyer’s fee for the court case[12].
The Crimes were mostly against the predominantly Rohingya Muslims, who are
mostly religiously persecuted minority in the world. The Only Cause for
constant growth to the refugee crisis for Rohingya Muslims is ethnic cleansing
by the Myanmar Government. Most of the Rohingya Muslims has fled away from
Myanmar only for ethnic cleansing and took shelter in Bangladesh’s Cox Bazar. “On March 21, 2022, the US Department of State
determined that members of the Burmese military committed genocide and crimes
against humanity against Rohingya”, It is reported in India Spend.[13]
Despite of being a
secular country, the cruelty by Indian Government towards specifically Muslim
refugees from irrespective of source countries shows the islamophobia of Indian
Governance. The repetitive detention of such illegal immigrants is human rights
violation. The detention is being made to all refugees from Rohingya Muslims
Communities irrespective of age including minor child. The Juvenile Justice
Act, 2015 is contradictory with India’s deportation policies of illegal
immigrants who are recognized as refugees as the policies make conflict with
present legal framework of the Constitution and other potential safeguards or
the rights under statutes like Juvenile Justice Act, 2015.
Women from the
Sri-Lankan Tamil Refugee community had witnessed the sexual and gender-based
violence and additional hardships after coming India. Women were sexually and physically
abused in the refugee camps. Alcoholism by men spoils the family with mental
depression. The quality of life was not tolerant. The History of sexual and
gender-based violence was existed in not only in Tamil Refugee Community but
also, there are other communities like partitions immigrants in 1947 from
Bangladesh and Pakistan.
Comparative Analysis of Judicial
Justice System in Turkey and India:-
Judicial Justice System for refugees
in Turkey
The LFIP has made it easier for the refugees and
asylum-seekers access justice in Turkey. There are provisions of legal aid and
access to judicial review by the Administrative Court and Criminal Court of
Peace. In addition, the right to legal aid for persons seeking international
protection in Turkey acts as a checkpoint and an umbrella protection for the
refugees. The asylum seekers, refugees and persons having temporary protection
in Turkey have their Constitutional Rights and Human Rights as guaranteed in
the Constitution Court of Turkey and European Convention of Human Rights
respectively. The refugees have all the right to challenge the fundamental
rights in the court of law and seek justice.
Access to justice for refugees, capacity development
of judges and lawyers (training in international refugee law, sharing of Its
origin’s information with courts and the Union of Turkish Bar Associations
(UTBA), and creation of a case law database on refugee law), networking with
and sensitizing the judiciary, supporting the judiciary, and supporting the
judiciary are all included in UNHCR Turkey's strategy, which is in line with
the UNHCR Judicial Engagement priorities. In the future, the UNHCR will improve
coordination and collaboration with the UNDP on issues pertaining to access to
justice.
The individual who is the subject of a deportation
order is given important procedural protections under Article 53 of the
Constitution of Turkey. As a result, pending the outcome of the appeal
processes and without limiting the alien's permission, the immigrant may not be
removed during the judicial appeal term. We may argue that this clause offers
more protection than the Constitution does around asylum. In fact, a court may
order a stay of execution only in cases where the adoption of an administrative
act would entail damages that would be difficult or impossible to compensate
for and the act itself would be obviously unconstitutional, as stated in the
Constitution (Article 125.5)[14].
Principle of Non-refoulment and
validation to refugee status: -
In this era of mass migration, where most of the
countries are dealing with the issue of asylum seekers and providing them with
basic human rights, it has become necessary to amend the laws of the land and
bring provisions in the Constitution for this regard. The Right to seek asylum
is an important right and acts as an umbrella right which covers all the basic
rights such as right to life, right to liberty and security in an absolute
manner. The principle of non-refoulment prohibits forced removal of refugees
from a country.
Several international human rights treaties written
after World War II acknowledge the right to seek refuge and the idea of
non-refoulement, including the 1951 Convention Relating to the Status of
Refugees (Article 33) and its 1967 Protocol (Art 1.1). The ECHR neither
specifically mentions non-refoulement nor enshrines a right to asylum, a right
to remain in the contracting state, or a right to subsidiary protection.
However, the ECtHR has repeatedly held that the ban of torture and cruel or
degrading treatment or punishment is implicit in Article 3 of the ECHR ever
since the case of Soering v. the United Kingdom.
Judicial
Justice System for refugees in India
As India has not any domestic legal framework for
refugee administration so Indian Judiciary has relied on the rights contained
under the international treaties which describes the refugee rights, and which
is authorized by our Constitution of India in Article 253. But The Supreme
Court has not authoritatively determined whether the refugee rights according
to the UNHRC are judicially enforceable under the rights given by Constitution.
Principle of Non-refoulment and
validation to refugee status: -
In the case of Ktaer Abbas, the Gujrat High Court
observed that the principle of non-refoulment is guaranteed by the Article 21,
so no authority has right to deport him back to his own country until he feels
safe at his own country[15].
There are many such examples where Indian Judiciary takes the humanitarian
ground for adjudicating the case regarding Refugee like Malavika Karlekar v.
Union of India, 1992, The Supreme Court directed a stay order on the
deportation of Burmese Refugees in Andaman and Nicobar Island[16].
The prima facie of the case is whether the determination of refugee status of
those people is determined. In the case of NHRC v. State of Arunachal Pradesh,
(1996),[17]
The Supreme Court held that for protection of refugee that where the refugees
had been in this country for long time, they can’t be deported back to their
own country until their cases are determined under Government Policy.
Right not to be deported back and
right not to be repatriated forcefully: -
There is another remarkable case Bogyi v. Union of
India, 1989, where Guwahati High Court granted the rights of seeking asylum and
the rights not to be deported back to their country to Burmese Refugees, which
status is determined by UNHRC.[18]
In the interest of the refugees like right not to be forcibly repatriated was
held by the Supreme Court in the Case of P. Nedumaran v. Union of India, WP Nos.
12298 and 12343 of 1992 and Gurunathan v. Union of India, WP Nos. 6708 and 7916
of 1992. In This case Supreme Court gave a precedent for further cases where
any refugee can be repatriated that Repatriation was not taken as valid until
UNHRC found the repatriation is voluntarily done by the refugee. Justice
Bhagwati guided the law drafting committee of NHRC for making a model law for
refugees in India in 2000.
Right to life with dignity with basic
amenities: -
As we all know refugees faced many socio-political-economical
obstacles in the host countries. Refugees who have been living here since their
coming period, they still faced challenges and discrimination in society
economically. We know there are Sri-Lankan refugees in the southern part of
India where they had faced many difficulties for continuing their bread and
butter.
In the case of Digvijay Mote v. Government of India[19],
An NGO filed a public interest litigation as they had difficulties to run a
school for Sri-Lankan refugee students in Karnataka. The Petition was taken
into cognizance and Government was directed to assist the refugee students in
the matter of economical help in study. After that Ministry of Women and Social
Welfare of Government of Karnataka provide financial assistance to run the
school.
Conclusion:
-
Both the countries India and Turkey are
geo-politically attractive for being a host country for refugee influx. The
Comparative analysis of the domestic and Judicial justice system for sake of
asylum seekers from many from their neighboring countries for various reason
shows us the administrative grey area of both nations matter of refugee rights.
But Turkey has ratified the policies of 1951’s UN’s Refugee convention and
1967’s Refugee protocol. UNHRC has reported that Turkey has provided enormous
number of privileges to the asylum seekers from Syria. We can conclude that
both countries have different ideological governance which is key factor for
the policy making regarding domestic refugee laws and both the countries have
entertained large number of refugees according to their national interest.
[2] From, Puneet Pathak, International Humanitarian and Refugee
Law | 10. Refugee Protection in India
https://www-ebcreader-com-christuniversityncr.knimbus.com/share/990975572_26_5312-5449
[3] UNHCR, ‘Syria Regional Refugee Response’, Last Updated 31
December 2022, <
https://data2.unhcr.org/en/situations/syria/location/113>
[5] Turkey, Regulation No. 1994/6169 on the Procedures and
Principles related to Possible Population Movements and Aliens Arriving in
Turkey either as Individuals or in Groups Wishing to Seek Asylum either from
Turkey
https://www.refworld.org/docid/49746cc62.html
[6] B Frelick, ‘Barriers to Protection: Turkey’s Asylum
Regulations’ (1997) 9 (1) International Journal of Refugee Law 8-34, 12; C
Soykan, ‘The new draft law on foreigners and international protection in
Turkey’ (2012) 2(2) Oxford Monitor of Forced Migration 38-47
[7] Jabari v Turkey App No 40035/98 (ECtHR, 11 November 2000);
Abdolkhani and Karimnia v Turkey App No 30471/08 (ECtHR, 22 September 2009);
ZNS v Turkey App No 21896/08 (ECtHR, 19 January 2010).
[9] Abhipsha Gochhayat, Protection of Refugees in India,
Pg: -7, 9 Nov 2011
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1957146
[10] How killing of
Syrian refugee marks an alarming trend in Turkey https://www.aljazeera.com/news/2022/1/12/turkey-news-log-jan-12
[11] Syrian refugees in
Turkey fear deportation
https://www.youtube.com/watch?v=gR_T-XMM9M4
[12] Shreehari
paliath Children Separated From Mothers: Rohingyas in India Fear Detention,
Deportation, 19 April 2022
(https://www.indiaspend.com/welfare/children-separated-from-mothers-rohingyas-in-india-fear-detention-deportation-813642)
[13] Shreehari
paliath Children Separated From Mothers: Rohingyas in India Fear Detention,
Deportation, 19 April 2022 (https://www.indiaspend.com/welfare/children-separated-from-mothers-rohingyas-in-india-fear-detention-deportation-813642)
b.
Abdolkhani ve Karimnia v. Turkey App. 30471/08, 22 September 2009
c. M.B.
and Others v. Turkey, Appl.36009/08, 15 June 2010
d. Dbouba
v. Turkey, Appl. 15916/09, [fin] 13 October 2010
e. Ghorbanov
and Others v. Turkey, Appl. 28127/09, [fin] 3 March 2014
Article Information
COMPARATIVE STUDY OF CRIMINAL JUSTICE SYSTEM FOR THE REFUGEES IN INDIA AND TURKEY BY : - SWARNAV BISWAS & ANTARA MANDAL
Authors: SWARNAV BISWAS, ANTARA MANDAL
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/04/11
- Volume 2
- Issue 7
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International Journal for Legal Research and Analysis
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- ISSN 2582-6433
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