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SECOND
SECTION
CASE OF Z.N.S. v. TURKEY
(Application
no. 21896/08)
JUDGMENT
STRASBOURG
19
January 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Z.N.S. v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Nona Tsotsoria,
Işıl
Karakaş, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 15 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 21896/08) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by an Iranian national, Ms Z.N.S. (“the
applicant”), on 8 May 2008. The President of the Chamber
acceded to the applicant's request not to have her name disclosed
(Rule 47 § 3 of the Rules of Court).
- The
applicant was represented by Mr S. Efe, a lawyer practising in
Ankara. The Turkish Government (“the Government”) were
represented by their Agent.
- On
9 May 2008 the President of the Fourth Section decided, in the
interests of the parties and the proper conduct of the proceedings
before the Court, to indicate to the Government of Turkey, under Rule
39 of the Rules of Court, that the applicant should not be deported
to Iran until 27 May 2008. On 26 May 2008 the President of the
Second Section decided to extend until further notice the interim
measure indicated under Rule 39 of the Rules of Court.
- On
24 September 2008 the President of the Second Section decided to give
notice of the application to the Government. It
was also decided that the admissibility and merits of the application
would be examined together (Article 29 § 3) and that the
case would be given priority (Rule 41).
- The
applicant and the Government each submitted written observations on
the admissibility and merits of the application.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1967 and is currently held in the Kırklareli
Foreigners' Admission and Accommodation Centre, in Turkey.
A. Deportation proceedings and the applicant's
placement in the Kırklareli Foreigners' Admission and
Accommodation Centre
- The
applicant first entered Turkey on 24 September 2002 using a false
passport. She began living and working in Istanbul without informing
the Turkish authorities or the United Nations High Commissioner for
Refugees (“the UNHCR”).
- On
22 October 2003 the applicant applied to the UNHCR and asked to be
recognised as a refugee. On an unspecified date in 2004 she was
detained by the Turkish authorities and deported to Iran, where she
claims to have been imprisoned for nine months and subjected to
ill treatment.
- Following
her release from prison in Iran, the applicant re entered Turkey
illegally on 3 February 2005. She learned that her case before
the UNHCR had been closed in her absence.
- In
June 2006 the applicant was diagnosed with myomatosis of the uterus
and operated in a private hospital on 5 June 2006. The medical
reports, in particular the pathology results, revealed that there
were no cancerous cells.
- In
the meantime, she became interested in Christianity and began
attending Bible classes. On 7 September 2007 the applicant was
baptised in a Protestant church in Istanbul. On an unspecified date
the applicant's son, who was attending the Iranian Consulate School
in Istanbul, was expelled on the ground of “conduct against the
school's faith”. Some time within a year of that incident the
applicant applied to the Iranian Consulate in Istanbul for a
passport. While there, she was asked to complete a form stating that
she was a Christian.
- On
an unspecified date at the end of 2007, the applicant applied to the
UNHCR and requested that her case be re-examined.
- On
3 May 2008 the applicant went to the Fatih police headquarters in
Istanbul in order to make statements as a witness regarding a
criminal offence committed by third persons. As she was found to have
identity documents with different names on them, an investigation was
initiated into this and she was arrested. On an unspecified date she
was released.
- On
9 May 2008 the applicant was rearrested on suspicion of infringement
of visa requirements and forging official documents. According to a
letter sent by the Istanbul police to the Department responsible for
foreigners, borders and asylum attached to the General Police
Headquarters on the same day, the applicant had stated that she did
not wish to live in Iran and that she had come to Turkey in order to
apply to the UNHCR. The same letter stated that the applicant had
been placed in the Foreigners' Department of the Istanbul police
headquarters with a view to her deportation from Turkey.
- On
13 May 2008 the director of the department responsible for
foreigners, borders and asylum attached to the General Police
Headquarters requested the Istanbul police headquarters to obtain
statements from the applicant regarding a number of issues, including
her failure to apply to the Turkish authorities when she had applied
to the UNHCR, the reason why she had made multiple entries and exits
between Iran and Turkey and why she was staying illegally in Turkey.
The director also requested that the possible security risks that the
applicant may pose in Turkey be determined.
- On
16 May 2008 the applicant sent another letter to the Ministry of the
Interior. Referring to her medical condition, she requested urgent
treatment and asked to be released and issued with a temporary
residence permit pending the proceedings before the UNHCR and the
Court.
- On
the same day the applicant was questioned by a police officer at the
Istanbul police headquarters. She maintained, inter alia, that
she had initially entered Turkey with a false passport and that she
had been deported to Iran where she had spent nine months in prison.
She contended that when she re-entered Turkish territory on 3
February 2005 she had immediately re-applied to the UNHCR. She noted
that she was against the present government in Iran and that she and
her family members had been oppressed when they lived in Iran. The
applicant mentioned that she had left and re entered Turkish
territory as that was the only way to renew her visa. She further
contended that she had not applied to the Turkish authorities earlier
as her case had been closed by the UNHCR.
- On
20 May 2008 the applicant's statements were sent to the General
Police Headquarters by the Istanbul police.
- On
6 and 16 May and 2 June 2008, the applicant's representative lodged
petitions with the Istanbul Police Headquarters and requested that
his client be released and given a residence permit pending the
outcome of her application to the UNHCR.
- By
a letter dated 10 June 2008, the deputy director of the Istanbul
police headquarters informed the Kırklareli police headquarters
that the applicant did not wish to return to her country, but wished
to seek asylum, and had applied to the Court. The director reiterated
that she had been held in the Istanbul police headquarters with a
view to her deportation. He further maintained that the applicant
should be held in the Kırklareli Foreigners' Admission and
Accommodation Centre pending the outcome of the proceedings before
the Court. On the same day the applicant was transferred to that
facility.
- On
18 July 2008 the Ministry of the Interior informed the applicant that
her case before the Turkish authorities was suspended pending the
proceedings before the Court.
- On
29 December 2008 the applicant and her son were recognised as
refugees, under the UNHCR's mandate, on religious grounds.
- On
14 April 2009 the applicant's representative lodged a case with the
Ankara Administrative Court. He requested the
court to annul the decision of the Ministry not to release his client
and to order a stay of execution of that decision pending the
proceedings.
- On
28 May 2009 the Ankara Administrative Court rejected the applicant's
request for a stay of execution.
- The
applicant's representative appealed. On 24 June 2009 the Ankara
Regional Administrative Court dismissed the appeal.
B. Conditions in the
Kırklareli Foreigners' Admission and Accommodation Centre,
alleged lack of medical assistance available to
the applicant and her alleged ill-treatment
1. The applicant's account
- In
his submissions to the Court dated 16 May 2008 the
applicant's representative contended that, although the applicant was
suffering from serious consequences of the operation she underwent in
June 2006, she did not have access to a
doctor in the Kırklareli Foreigners'
Admission and Accommodation Centre. On 18 June 2008 he informed the
Court that the applicant had been examined by a doctor, who had
ordered a further medical examination. Despite this, the Ministry of
the Interior did not authorise a further examination and the
applicant's health was deteriorating.
- On
27 August 2008 the applicant, with four other persons, started a
“fast to the death” to protest about her placement and
the physical conditions in the Centre.
- Before the Court, the applicant
maintained that the physical conditions in the Kırklareli
Centre were below the minimum standards set by the European Committee
for the Prevention of Torture (the “CPT”). In support of
her submissions the applicant provided a number of photographs
containing images of several parts of the Centre. In one room there
were two bunk beds on which there were pillows and blankets. There
was no bed linen on the beds. In another room there were two beds
with bed linen, pillows and blankets. The photographs of the kitchen
sinks and stoves showed that the latter were unusable. Another
photograph showed that there were four sinks in the bathroom. Inside,
the toilets were partially covered with some kind of dark substance.
Photographs of the cleaning products that had
labels in the Cyrillic alphabet showed that their dates had expired
nine to ten years ago.
- The
applicant finally alleged that the officers who worked at the
Kırklareli Centre did not treat the detainees well. In
particular, she had been insulted and
threatened by a police officer.
2. The Government's account
- The
Government replied that the applicant was subjected to a series of
medical examinations during July 2008 at the Kırklareli State
Hospital According to the documents submitted, blood tests, an
abdomino-pelvic ultrasound examination and an abdominal tomography
were performed on the applicant. The doctors found no pathological
signs as a result of these examinations.
- The
Government denied the applicant's allegation that the physical
conditions at the Kırklareli Foreigners' Admission and
Accommodation Centre did not comply with the minimum standards
established by the CPT. Noting that the Centre in question was not a
detention facility, the Government provided photographs of a birthday
party and an engagement party, both organised in the common room of
the Kırklareli Centre. They further submitted photographs of an
Islamic celebration (Festival of Sacrifice) organised in the garden
of the Centre.
- In
their submissions dated 9 September 2009, the Government maintained
that an investigation had been initiated into the actions of the
police officer who had allegedly insulted the applicant in relation
to the latter's complaint of ill-treatment.
II. RELEVANT LAW AND PRACTICE
A. Domestic law and practice
- A
description of the relevant domestic law and practice may be found in
the case of Abdolkhani and Karimnia v. Turkey
(no. 30471/08, §§ 29-44, 22 September 2009).
B. International and national material
- The
standards of the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment concerning the
conditions of detention of foreign nationals (see the CPT standards,
document no. CPT/Inf/E (2002) 1- Rev. 2006, page 41) provide, in so
far as relevant, as follows:
“... In the view of the CPT ... where it is deemed
necessary to deprive persons of their liberty for an extended period
under aliens' legislation, they should be accommodated in centres
specifically designed for that purpose...
Obviously, such centres should provide accommodation
which is adequately furnished, clean and in a good state of
repair, and which offers sufficient living space for the numbers
involved. Further, care should be taken in the design and layout of
the premises to avoid as far as possible any impression of a carceral
environment. As regards regime activities, they should include
outdoor exercise, access to a day room and to radio/television and
newspapers/magazines, as well as other appropriate means of
recreation (e.g. board games, table tennis). The longer the period
for which persons are detained, the more developed should be the
activities which are offered to them. ...”
- In
June 2008 Human Rights Watch visited three Admission and
Accommodation Centres in Turkey, including the Centre in Kırklareli.
The relevant extracts from the report entitled “Stuck in a
Revolving Door”, published by Human Rights Watch on 6 November
2008, read as follows:
“... The Kırklareli Gaziosmanpaşa
Refugee Camp (hereafter Kırklareli) has had a long history as an
actual refugee camp. In 1989 it was a safe haven for ethnic Turks
fleeing Bulgaria; in 1992, a shelter for refugees from Bosnia; and in
1999, a place of refuge for Kosovar Albanians. It can no longer be
described, truthfully, as a refugee camp, however. It is rather a
detention centre for migrants, some of whom may indeed be refugees,
but not refugees being protected from persecution, but rather
refugees that Turkey is seeking to remove.
At the time of Human Rights Watch's visit, Kırklareli
held 174 detainees, including four women and the four-year-old child
of one of the women.
Although the men are locked away in a long barracks
building, they were freely wandering around the outdoor grounds of
the fenced-in facility during the Human Rights Watch visit. They
appeared to be allowed to go outside the barracks during the
afternoons. The facility is surrounded by a chain-link fence topped
with barbed wire. Signs of its history as a former refugee camp are
abundant in the form of old unused shelters with faded UNHCR logos
and an overgrown soccer field that have not been used in many years,
despite a rather comical attempt by the Kırklareli administrator
to give Human Rights a guided tour intended to show that old
classrooms and recreational facilities are still being used by the
detainees.
The women and child were housed in a separate building
that the women told Human Rights Watch they had recently been asked
to clean prior to a visit by another delegation. The administrator
showed Human Rights Watch a large-screen television set in one of the
women's private rooms, but failed to note that the TV was not plugged
in and didn't work at all. Although the men are allowed to leave
their barracks during most afternoons, the guards tell the women that
they are not allowed to leave their building. "The door is kept
open to allow the child to come and go, but we are not allowed to
walk out the door," said a 25-year-old Iranian woman.
Both men and women at Kırklareli complained about
the poor quality and small quantity of food. A man claiming to be
Burmese said, "The food is not good. It is not fit for humans,
and it is not enough. Nothing happens if we complain. The guards say,
'If you don't like the food, go to the market and buy your own.'"
The main complaint, however, is that the detainees are
not informed how long they will remain in detention. Human Rights
Watch spoke privately with a man who appeared to be an informal
leader of the "Burmese" at Kırklareli. He said that
the Burmese numbered 160 of the 174 detainees in the camp and that
most, including him, had already been held there for nine months and
had no idea how much longer they would stay there. "Just tell us
what to do," he said. "Give us a sentence. If they let us
leave, we will work and feed our families. Let us leave or kill us.”
Even though the conditions at Kırklareli did not
appear to be nearly as bad as at Edirne, tensions between detainees
and guards were very high. The camp administrator told Human Rights
Watch, "Despite the good conditions here, there is an enmity
towards us."
On the night of the day after the Human Rights Watch
visit there was a riot at Kırklareli. The causes of the riot and
the response of the security forces were under investigation when
Human Rights Watch left the country. In the course of putting down
the disturbance, Turkish security forces shot and killed one of the
detainees, a young man of unknown nationality who Human Rights Watch
had talked to at length. ...”
- On
11 June 2008 around midnight a riot started in
the Kırklareli Foreigners' Admission and Accommodation Centre.
During the riot an asylum seeker died and another asylum seeker and
two police officers were wounded. Subsequent to the riot, the
Organisation for Human Rights and Solidarity for Oppressed People
(Mazlum-Der), a human rights organisation based in Turkey, made a
visit to the Centre in order to assess the situation there. During
this visit, the Mazlum-Der interviewed persons held in the Centre,
the Kırklareli governor, the director of the Kırklareli
Centre and one of the officers who had been injured. The governor
stated, inter alia, that the authorities were doing their best
to meet the needs of the persons held in the Centre. The director
also stated that they maintained good standards of living in the
Centre.
- Following
the initiation of the “fast to the death” by the five
persons held in the Kırklareli Foreigners' Admission and
Accommodation Centre, including the applicant, on 3 September 2008
the Mazlum-Der made a second visit to the Centre in order to
interview the persons on hunger strike and to observe the living
conditions in the Centre. According to the report published by
Mazlum-Der, they were not allowed to visit the inside of the Centre
where foreign nationals were held. They could however interview the
applicant and the other four persons, who maintained that there had
been problems regarding the quality of food provided by the
administration of the Centre, the Centre's hygiene, access to medical
care and common living space.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION
IN RELATION TO THE DEPORTATION PROCEEDINGS
- The
applicant complained under Articles 2 and 3 of the Convention that
her removal to Iran would expose her to a real
risk of death or ill treatment.
- The
Court finds it is more appropriate to examine the applicant's
complaint from the standpoint of Article 3 of the Convention alone
(see Abdolkhani and Karimnia, cited above, § 62; N.A.
v. the United Kingdom, no. 25904/07, § 95, 17 July
2008; and Said v. the Netherlands, no. 2345/02, § 37,
ECHR 2005 VI).
A. Admissibility
- The
Government submitted that no deportation order had been issued in
respect of the applicant. They further noted that the applicant had
infringed visa and passport requirements and that, according to the
national legislation, she would be deported from Turkey. That did not
necessarily mean that she would be sent to Iran. She could go to a
third country so long as she had a visa. The Government further
maintained that the applicant had failed to
exhaust the domestic remedies available to her, within the meaning of
Article 35 § 1 of the Convention. They contended that the
applicant had failed to make a temporary asylum request to the
relevant authorities. They noted that the applicant could have
applied to the administrative courts if the authorities had refused
such a request. In support of their submissions, the Government
provided a number of judgments of the administrative courts in which
those courts had annulled deportation decisions.
- The
applicant submitted that, according to the official documents, she
had been placed in the Foreigners' Department of the Istanbul
police headquarters on 3 May 2008 with a view
to her deportation. She further contended that she had told the
police officer who questioned her on 16 May 2008 that she was
against the present Iranian government and she did not wish to return
to her home country. She did not however inform the police officer
that she had been involved in anti-regime activities in Iran, for
fear that she might be deported in the context of an agreement
between Turkey and Iran on the “exchange of terrorists”.
- The
Court observes that, according to the documents dated 9 May 2008
and 10 June 2008, the applicant was placed in the Istanbul police
headquarters with a view to her deportation. Therefore it cannot
accept the Government's argument that no deportation decision had
been taken in her case. The Court further observes that the applicant
had explicitly stated her position vis-à-vis the
Iranian Government in her statement of 16 May 2008. However, the
Ministry of the Interior informed the applicant's representative that
the procedure regarding the applicant had been suspended pending the
outcome of the proceedings before the Court. What is more, the
respondent Government became aware of the applicant's refugee status
under the UNHCR's mandate on the ground of her religion when the
UNHCR refugee certificate submitted to the Court by the applicant was
sent to them on 27 March 2009. In these circumstances and in the
absence of any response by the national authorities regarding the
applicant's allegations, the Court is of the view that the applicant
did everything that could be expected of her.
- As
to the Government's argument that the applicant could have applied to
the administrative courts, the Court reiterates that under Turkish
law seeking the annulment of a deportation decision does not have
automatic suspensive effect and, therefore, the applicant was not
required to apply to the administrative courts in order to exhaust
such domestic remedies, within the meaning of
Article 35 § 1 of the Convention (see Abdolkhani and
Karimnia, cited above, § 59). The Court accordingly rejects
the Government's objections.
- The
Court observes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government maintained that the applicant did not have a well founded
fear of persecution as she had not been subjected to any
ill treatment in Iran. They further noted that neither the
applicant, nor her representative on her behalf, had claimed asylum
with the national authorities.
- The
applicant alleged that she had been deported once to Iran without
having been given the opportunity to object to her removal. She
further contended that she feared being deported again and that that
was reason why she had not mentioned her political activities in Iran
to the police. The applicant maintained that, if removed to Iran, she
would be exposed to a clear risk of death or
ill-treatment, given that she had been involved in anti-regime
activities in Iran prior to her arrival in Turkey and that she had
become a Christian, a fact known by the Iranian authorities. In this
connection, she stressed that she had been recognised as a refugee by
the UNHCR.
- The
Court observes at the outset that the applicant was arrested on 3 May
2008 and that, when she made statements to the police on 16 May
2008, she had mentioned that she did not wish to return to Iran and
that she had come to Turkey in order to apply to the UNHCR. However,
according to the documents dated 9 May and 10 June 2008, the national
authorities planned her deportation without an examination of her
statements. Furthermore, her case before the Turkish authorities was
suspended pending the proceedings before the Court (see paragraphs 21
and 42 above). In these circumstances the Court is not persuaded that
the national authorities conducted any meaningful assessment of the
applicant's claim. It fell to the branch office of the UNHCR to
interview the applicant when she was being held in the Kırklareli
Foreigners' Admission and Accommodation Centre
about the background to her asylum request and to evaluate the risk
to which she would be exposed on the ground of her religion.
- The Court for its part must give due weight to the
UNHCR's conclusion on the applicant's claim regarding the risk which
she would face if she were to be removed to Iran (see Jabari v.
Turkey, no. 40035/98, § 41, ECHR 2000 VIII; N.A.
v. the United Kingdom, cited above, § 122; and
Abdolkhani and Karimnia, cited above, § 82). The Court
observes in this connection that, when the UNHCR interviewed the
applicant, it had the opportunity to test the credibility of her
fears and the veracity of her account of the circumstances in her
home country. Following this interview, it found that the applicant
risked being subjected to persecution in her country of origin.
- In
the light of the UNHCR's assessment, the Court finds that there are
substantial grounds for accepting that the applicant risks a
violation of her right under Article 3, on account of her religion,
if returned to Iran.
- Consequently,
the Court concludes that there would be a violation of Article 3
of the Convention if the applicant were to be removed to Iran.
II. ALLEGED VIOLATION OF ARTICLE 5 §§ 1, 3 AND 4
AND ARTICLES 6 AND 13 OF THE CONVENTION
- Relying
on Article 5 §§ 1, 3 and 4 and
Articles 6 and 13 of the Convention, the applicant complained that
she had been unlawfully detained without the opportunity to challenge
the lawfulness of her detention.
- The
Court considers that it is more appropriate to examine these
complaints from the standpoint of Article 5 §§ 1 and 4 of
the Convention.
A. Admissibility
- The
Court notes that this part of the application
is not manifestly ill founded within the meaning of Article 35 §
3 of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
1. Existence of a deprivation of liberty and compliance
with Article 5 § 1
- The
Government maintained that the applicant was not detained
but accommodated in the Kırklareli Foreigners' Admission and
Accommodation Centre. The reason for the applicant's placement in
this centre, which could not be defined as detention or custody, was
the authorities' need for the surveillance of aliens pending
deportation proceedings. The Government contended that this practice
was based on section 23 of Law no. 5683 and section 4 of Law no.
5682.
- The
applicant submitted that she was detained and that her detention did
not have a sufficient legal basis in domestic law. Nor had it been
ordered by a court.
- The
Court reiterates that it has already examined the same
grievance in the case of Abdolkhani and Karimnia (cited above,
§§ 125-135). It found that the placement of the applicants
in the Kırklareli Foreigners' Admission
and Accommodation Centre in that case constituted
a deprivation of liberty and concluded that, in
the absence of clear legal provisions establishing the procedure for
ordering and extending detention with a view to deportation and
setting time-limits for such detention, the deprivation of liberty to
which the applicants were subjected was not “lawful” for
the purposes of Article 5 of the Convention.
- The Court has examined
the present case and finds no particular circumstances which would
require it to depart from its findings in the aforementioned
Abdolkhani and Karimnia judgment. There has therefore been a
violation of Article 5 § 1 of the Convention.
2. Compliance with Article 5 § 4
- The
Government submitted that an application to administrative courts for
the annulment of the decisions to place individuals in foreigners'
admission and accommodation centres was an effective remedy within
the meaning of Article 5 § 4 of the Convention.
- The
applicant submitted, at first, that she could not apply to
administrative courts as she was unable to appoint an advocate
in the absence of any valid identity documents. In her submissions
dated 16 April 2009 she contended that, following her
recognition as a refugee under the UNHCR's mandate, she could now
empower an advocate to take proceedings on behalf of her with a
notarised power of attorney. Accordingly, her advocate applied to
Ankara Administrative Court and requested her release. In her
submissions made in May and June 2009, the applicant maintained that
the proceedings in question were not sufficiently speedy.
- The Court reiterates that the purpose of Article 5 §
4 is to guarantee to persons who are arrested and detained the right
to the judicial supervision of the lawfulness of the measure to which
they are thereby subjected (see, mutatis mutandis, De
Wilde, Ooms and Versyp v. Belgium, 18 June 1971,
§ 76, Series A no. 12). A remedy must be made available
during a person's detention to allow that person to obtain a speedy
judicial review of its lawfulness. That review should be capable of
leading, where appropriate, to release. The existence of the remedy
required by Article 5 § 4 must be sufficiently certain, not only
in theory but also in practice, failing which it will lack the
accessibility and effectiveness required for the purposes of that
provision (see, mutatis mutandis, Stoichkov v. Bulgaria,
no. 9808/02, § 66 in fine, 24 March 2005; and Vachev
v. Bulgaria, no. 42987/98, § 71, ECHR 2004 VIII).
- The
Court first observes that the applicant's representative lodged a
case with the Ankara Administrative Court on 14 April 2009,
requesting the
annulment of the decision of the Ministry not to release his client
and to order a stay of execution of that decision pending the
proceedings. The request was refused and the subsequent appeal
was dismissed on 24 June 2009. Moreover, according to the
information in the case file, the proceedings are still pending
before that court. The initial review by the administrative courts
thus lasted two months and ten days.
- The
Court refers to its findings under Article 5 § 1 of the
Convention about the lack of legal provisions governing the procedure
for detention in Turkey pending deportation. The proceedings in issue
did not raise a complex issue. The Court considers that the Ankara
Administrative Court was in an even better position than the Court to
observe the lack of a sufficient legal basis for the applicant's
detention. The Court therefore finds that the judicial review in the
present case cannot be regarded as a “speedy” reply to
the applicant's petition (see Khudyakova v. Russia,
no. 13476/04, § 99, 8 January 2009; and Kadem
v. Malta, no. 55263/00, §§ 43 45,
9 January 2003, where the Court held that periods of 54 and
17 days, respectively, for examining an appeal against detention
pending extradition proceedings had been too long).
- Accordingly,
the Court concludes that Turkish legal system did not provide the
applicant with a remedy whereby she could obtain speedy judicial
review of the lawfulness of her detention, within the meaning of
Article 5 § 4 of the Convention (see S.D. v. Greece,
no. 53541/07, § 76, 11 June 2009; and Abdolkhani
and Karimnia, cited above, § 142).
There
has therefore been a violation of Article 5 § 4 of the
Convention.
III. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
WITHIN THE CONTEXT OF THE APPLICANT'S DETENTION
- Relying
on Article 3 of the Convention, the applicant complained about the
material conditions in the Kırklareli Foreigners' Admission and
Accommodation Centre and alleged that medical assistance was not
provided there. In her submissions dated 22 June 2009, she also
complained under the same head that she had been insulted and
threatened by A.A., a police officer at the Centre.
1. The alleged ill-treatment of the applicant by A.A.
- The
Government maintained that an investigation had been initiated into
the applicant's allegations of ill-treatment, which was pending.
- The
applicant did not make further submissions on this point.
- The
Court reiterates that a criminal investigation constitutes, in
principle, an effective remedy in respect of allegations of
ill-treatment. Having regard to the fact that an investigation into
the actions of the police officer who had allegedly insulted the
applicant is currently pending, the Court considers that this part of
the application must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
2. Medical assistance
- The
Government submitted that the applicant did not raise her complaint
regarding the alleged lack of medical assistance before the national
authorities. They contended that she had failed to exhaust the
domestic remedies available to her in respect of this part of the
application.
- The
applicant reiterated her allegations.
- The
Court does not consider it necessary to determine whether the
applicant has exhausted domestic remedies, as this part of the
application is manifestly ill-founded for the following reasons.
- The
Court reiterates that Article 3 requires that the health and
well-being of detained persons should be adequately secured by, among
other things, providing them with the requisite medical assistance
(see, mutatis mutandis, Kudła v. Poland [GC], no.
30210/96, § 94, ECHR 2000 XI). In the present case, the
Court observes that in May 2008 the applicant's representative asked
the authorities to conduct a medical examination of the applicant,
noting that she was suffering from a serious illness. Subsequently,
in June and July 2008 the applicant underwent a number of medical
examinations in relation to her past medical operation. As a result
of these examinations, the doctors observed that the applicant was
not suffering from any illness. Given that the authorities secured
sufficiently detailed medical examinations of the applicant and her
medical history rapidly after her representative's request, the Court
concludes that the applicant did have access to adequate medical
assistance. It therefore concludes that this part of the application
is manifestly ill-founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
3. Material conditions
a. Admissibility
- The
Government submitted that this part of the application should be
rejected for failure to exhaust domestic remedies, as required by
Article 35 § 1 of the Convention, because the
applicant had failed to lodge a complaint with the national
authorities.
- The
applicant replied that she had not been able to raise her allegations
regarding the conditions of detention since she feared the negative
consequences of a complaint.
- The
Court reiterates that the purpose of Article 35 § 1 of the
Convention is to afford the Contracting States the opportunity of
preventing or putting right the violations alleged against them
before those allegations are submitted to the Court. Consequently,
States are dispensed from answering for their acts before an
international body before they have had the opportunity to put
matters right through their own legal systems. However, the only
remedies which must be tried under Article 35 § 1 of the
Convention are those that relate to the breaches alleged and which at
the same time are available and adequate. The existence of such
remedies must be sufficiently certain not only in theory but also in
practice, failing which they lack the requisite accessibility and
effectiveness (see, among many others, Kalashnikov v. Russia
(dec.), no. 47095/99, 18 September 2001).
- Furthermore,
the Court reiterates that, in the area of exhaustion of domestic
remedies, the burden of proof is on the Government to satisfy the
Court that the remedy was an effective one, available in theory and
in practice at the relevant time, that is to say, that it was
accessible, was one which was capable of providing redress in respect
of the applicant's complaints and offered reasonable prospects of
success. Once this burden of proof is satisfied, it falls to the
applicant to show that the remedy advanced by the Government was in
fact exhausted, or was for some reason inadequate and ineffective in
the particular circumstances of the case, or that there existed
special circumstances absolving him or her from the requirement (see
Kalashnikov, cited above).
- In
the present case, the Court observes at the outset that the applicant
asked the administrative authorities to be released several times.
She lodged a case with the Ankara Administrative Court to that end
although she did not explicitly raise the issue of her detention
conditions before that court. Moreover, the applicant started a
“death fast” in protest against her detention and the
allegedly poor conditions of detention in the Kırklareli
Foreigners' Admission and Accommodation Centre.
- The
Court further observes that Mazlum-Der published a report containing
interviews with a number of persons detained in the Kırklareli
Foreigners' Admission and Accommodation Centre, including the
applicant, who complained about the poor detention facilities, as
well as the director of the Centre and the Kırklareli Governor.
According to this report, both the director of the Centre and the
Governor were aware of the allegations concerning the conditions of
detention. The Court therefore considers that the administrative
authorities had the opportunity to examine the conditions of the
applicant's detention and, if necessary, to offer redress.
- Furthermore,
while it is true that the applicant did not lodge a complaint with
the national authorities, the Government have not demonstrated which
remedies existed and what kind of redress could have been afforded to
the applicant. Nor did they point to examples of cases where
conditions of detention were improved following a complaint or an
application to domestic courts. The Court is therefore led to
conclude, in the particular circumstances of the present case, that
it is not established with sufficient certainty that there existed
domestic remedies capable of affording redress to the applicant in
relation to her complaint concerning the conditions of detention. It
accordingly dismisses the Government's objection.
b. Merits
- The
Government submitted that the applicant's allegations concerning the
conditions of detention in the Kırklareli Foreigners' Admission
and Accommodation Centre had been baseless. They contended that the
rooms in the Centre were never locked. The persons who were held
there had common areas where they watched television and dined. The
Government maintained that they were even allowed to hold
celebrations.
- The
applicant submitted that the hygiene and quality of food served to
detainees were poor in the Centre and that therefore the detainees
had to buy food from the canteen, which was expensive. She maintained
that the drinking water was extremely chalky. She further contended
that the detainees were allowed to go out of the building for only
four hours per day and there was no facility for exercising. She also
noted that she was only allowed to go into the open air for one hour
a day when she was on the “death fast”.
- The Court reiterates that, under Article 3 of the
Convention, the State must ensure that a person is detained in
conditions which are compatible with respect for his or her human
dignity, that the manner and method of the execution of the measure
do not subject the detainee to distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in detention
and that the individual's health and well-being are adequately
secured. When assessing conditions of detention, account has to be
taken of the cumulative effects of those conditions and the duration
of the detention (see Dougoz v. Greece,
no. 40907/98, § 46, ECHR 2001 II; and Kalashnikov v.
Russia, no. 47095/99, § 102, ECHR 2002 VI).
- In
the present case, the Court observes at the outset that the
applicant's and other detainees' access to food is provided by the
Centre's management (see paragraph 37 above). Therefore, the Court
assumes that the kitchen, photographs of which were submitted to the
Court, was not being used by the applicant and other detainees. Thus,
in the Court's view, access to places in the Centre, which are not in
use, such as the kitchen in question, should be restricted. The Court
further considers that although the applicant complained about the
quality of food and drinking water in the Kırklareli Foreigners'
Admission and Accommodation Centre, she failed to demonstrate how the
chalky water had affected her health and to prove her allegations
regarding the quality of food with appropriate arguments and
evidence.
- As
regards the applicant's allegations that she was not allowed to go
into the open air for more than four hours per day (and for one hour
when she was on the “death fast”) and that she did not
have any facilities for physical exercise, the Court refers to the
European Committee for the Prevention of Torture's (CPT) standard
that foreign nationals detained within the immigration context should
be allowed to exercise in the open air on a daily basis. Given that
the applicant did not allege that she was continuously kept indoors,
the Court does not consider that an issue arises under Article 3 in
the circumstances of the present case.
- The
Court further notes that the photographs of the rooms and the
corridor in the Kırklareli Foreigners' Admission and
Accommodation Centre demonstrate that the rooms enjoyed natural light
and had large windows, making it possible to have access to fresh
air. While it is true that some beds did not have bed linen, given
that the other beds had clean bedding on them, the Court cannot reach
the conclusion that the management of the Kırklareli Centre did
not provide bed linen to the applicant.
- The
Court observes that on the basis of the photographs submitted by the
applicant there may be two shortcomings which call for criticism in
terms of hygiene in the Kırklareli Foreigners' Admission and
Accommodation Centre. The first point is the state of the toilets
(see paragraph 28 above), which should be replaced, and the
second is the presence in the Centre of the cleaning products whose
labels were in the Cyrillic alphabet and whose expiry dates had
passed nine to ten years ago, although it cannot be determined
whether they were actually being used by the detainees.
- The
Court is also mindful that the applicant has been detained in the
Kırklareli Foreigners' Admission and Accommodation Centre for
more than sixteen months and that her detention may continue for an
indeterminate period of time in the absence of a procedure in
domestic law setting time limits for such detention, a fact
which has led the Court to find a violation of Article 5 § 1 of
the Convention (see paragraph 56 above). The Court accepts that this
uncertainty may cause a feeling of anxiety. The Court is further
aware that the Government failed to make detailed submissions as to
the living conditions in the Kırklareli Foreigners' Admission
and Accommodation Centre, or to submit photographs or a video of the
parts of the Centre where the detainees were held. Nevertheless, in
the Court's view, it has not been established that the material
conditions in the Kırklareli Foreigners' Admission and
Accommodation Centre are so severe as to bring them within the scope
of Article 3 of the Convention, despite the shortcomings identified
in paragraph 85 above, and the possible feeling of anxiety that the
indefinite term of the applicant's detention may cause.
- Accordingly,
there has been no violation of Article 3 on account of the conditions
of detention in the Kırklareli Foreigners' Admission and
Accommodation Centre.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 20,000 euros (EUR) in respect of non pecuniary
damage suffered as a result of the violations of her Convention
rights. She further claimed EUR 4,000 for pecuniary damage, claiming
that she would spend (sic) EUR 400 per month if she were not
detained.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it considers that the applicant must have suffered
non pecuniary damage which cannot be compensated solely by the
finding of violations. Having regard to the gravity of the violations
and to equitable considerations, it awards the applicant her claim in
full.
B. Costs and expenses
- The
applicant also claimed EUR 3,100 for the costs and expenses incurred
before the Court. Referring to the Istanbul Bar Association's scale
of fees, she claimed EUR 3,000 for her legal representation. She
further claimed EUR 100 for translation, telephone and fax
expenditure. She also submitted that her representative had carried
out thirty-five hours of legal work.
- The
Government contested this claim, noting that only costs actually
incurred could be reimbursed.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case the applicant has not
substantiated that she actually incurred the costs claimed.
Accordingly, the Court makes no award under this head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares admissible the complaints under Article
3 of the Convention (concerning the applicant's possible deportation
to Iran and the material conditions of her detention) and the
complaints under Article 5 of the Convention;
- Declares the remainder of the application
inadmissible;
- Holds that the applicant's deportation to Iran
would be in violation of Article 3 of the Convention;
- Holds that there has been a violation of Article
5 §§ 1 and 4 of the Convention;
- Holds that there has been no violation of
Article 3 of the Convention on account of the material conditions of
detention in the Kırklareli Foreigners' Admission and
Accommodation Centre;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 20,000 (twenty
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into Turkish liras at the rate
applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 19 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
