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SECOND SECTION

Application no. 75476/10
Yowhans Tesfamichael TESFALDET and Finan Kibrom FRE
against Turkey
lodged on 23 December 2010

STATEMENT OF FACTS

THE FACTS

The applicants, Mr Yowhans Tesfamichael Tesfaldet and Finan Kibrom Fre, are Eritrean nationals who were both born in 1992. They currently reside in Bilecik with temporary residence permits. The applicants are represented before the Court by Ms S. Uludag, a lawyer practising in Istanbul.

A.  Facts concerning the events before the applicants’ arrival to Turkey, as submitted by them

The applicants were conscripts in the Eritrean army for a period of two years. In 2009 and 2008 respectively, they fled from Eritrea and went to Sudan with the help of their families.

Subsequently, they left Sudan on account of fear of being deported back to Eritrea and of persecution by the authorities of that country for having fled.

B.  Facts concerning the events after the applicants’ arrival in Turkey, as submitted by both parties

On 22 December 2010 the applicants arrived in Turkey, on their way to Germany. They carried forged passports and were arrested upon their arrival at the Istanbul Atatürk Airport under the “inadmissible person” (INAD) procedure pursuant to the Covenant on International Civil Aviation.

On 23 December 2010 the applicants got in touch with UNHCR officials and informed them of their situation in a telephone conversation. According to their submissions, they subsequently asked leave to submit asylum requests but this was refused by the airport authorities.

Meanwhile, the UNCHR contacted the applicants’ representative, indicating that the applicants were being held at the international transit zone of the Istanbul Atatürk Airport. However, the UNHCR did not have access to the said zone. The applicants’ representative was also informed by the UNHCR that the national asylum procedure was not implemented at the airports and that therefore it was not possible to assess the applicants’ asylum requests.

Following the application of an interim measure by the Court under Rule 39 of the Rules of Court on 24 December 2010, the INAD procedure was stopped by the authorities and the applicants were kept in the transit zone.

On 3 January 2011 a lawyer representing the applicants, Ms Bahtiyaroglu, went to the Istanbul Atatürk Airport to meet them in person. However, the request was refused by the airport authorities.

The following day, 4 January 2011, the applicants submitted their written requests for asylum to the authorities.

On 6 January 2011 Ms Bahtiyaroglu requested once more to have direct access to the applicants and was refused again.

On 12 January 2011 the Ministry of Interior decided to allow the applicants’ entry into Turkey. Subsequently, on 17 January 2011 they were transferred to the Kumkapi Foreigners’ Admission and Accommodation Centre.

They had a face-to-face meeting with their representative for the first time on 19 January 2011.

On 28 January 2011 the Head of the Foreigners’ Office informed the Ministry of Foreign Affairs and the Bilecik Governorship that upon a decision of the Ministry of Interior, the applicants would reside in Bilecik as asylum seekers, with temporary residence permits.

On 4 February 2011 the applicants were released and were directed to Bilecik, where they would reside while the Ministry of Foreign Affairs evaluated their asylum requests.

C.  Procedure before the Court

On 23 December 2010 the applicants’ representative lodged the present application with the Court, claiming that the applicants were to be deported to Sudan and requesting the Court to stop their deportation under Rule 39 of the Rules of Court.

The next day, on 24 December 2010, the applicants’ representative informed the Court that she had contacted the applicants by telephone and had learnt that they were to be deported to Sudan that evening. She also indicated that she had no direct access to the applicants.

On the same day the President of the Chamber to which the case had been allocated decided to indicate to the Government, under Rule 39, that the applicants should not be deported to Eritrea (via Sudan) until further notice. The application was also given priority under Rule 41.

On 14 January 2011 the Government were invited to provide the applicants with access to their representative, having regard to the duty of the parties to cooperate fully with the Court in the conduct of the proceedings, pursuant to Rule 44A of the Rules of Court and Article 34 of the Convention.

On 20 January 2011 the Government submitted information as regards the applicants’ situation. They indicated that the applicants were to be returned to Sudan under the INAD procedure when the application of Rule 39 was communicated to them. In this respect, they argued that such application of the Rule encouraged persons who aimed to migrate illegally to European countries.

On 3 February 2011 the applicants’ representative submitted the authority forms to the Court, stating that she was able to obtain the applicants’ signatures only after they had been transferred to the Kumkapi Foreigners’ Admission and Accommodation Centre.

The Government submitted further information on 14 February 2011. They maintained that the legislation governing the asylum procedure did not restrict the applicants’ access to their lawyer and that the applicants were able to assign a representative and to meet the UNHCR officials. In this respect, the Government submitted the forms by which the applicants had requested asylum.

By a letter dated 1 March 2011, the applicants’ representative indicated that following the applicants’ release, she had conducted detailed interviews with them, with the assistance of a Tigrinia interpreter. To date, the Court has not been informed about the content of these interviews.

D.  Relevant domestic law and practice

The relevant domestic law and practice are outlined in the Abdolkhani and Karimnia v. Turkey judgment (no. 30471/08, §§ 29-51, 22 September 2009).

COMPLAINTS

The applicants argue under Articles 2 and 3 of the Convention that their removal to Eritrea would expose them to a real risk of death or ill-treatment. They maintain that the same risk applies to their removal to Sudan in that they would either be deported to Eritrea or would be imprisoned by the Sudanese authorities.

They invoke Article 13 of the Convention, claiming that there is no effective domestic remedy available to them whereby they could have their allegations under Articles 2 and 3 examined.

Relying upon Article 5 §§ 1 and 2 of the Convention, the applicants complain that they were held in detention at the Istanbul Atatürk Airport and the Kumkapi Foreigners’ Admission and Accommodation Centre without there being any legal basis and that they were not informed of the reasons for their detention. They maintain under Article 5 §§ 4 and 5 that they did not have access to any domestic remedy to request their release, challenge the lawfulness of their detention or claim compensation for the unlawful deprivation of liberty.

The applicants maintain under Article 34 of the Convention that they were denied direct access to their representative during the period they were held at the international transit zone of the Istanbul Ataturk Airport. They submit therefore that the effective exercise of their right to individual application was hindered by the authorities as they could neither provide their lawyer with authority forms nor substantiate their application with more detailed statements.

QUESTIONS TO THE PARTIES

1.  Would the applicants’ removal to Sudan or Eritrea give rise to a real risk that they would be subjected to treatment in violation of Articles 2 or 3 of the Convention?

The parties are requested to inform the Court about the outcome of the asylum procedure and the applicants’ current situation.

2.  Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 2 and 3 of the Convention, as required by Article 13 of the Convention? In particular, have the authorities taken the requirements of Articles 2 and 3 of the Convention into account when considering the applicants’ requests for asylum?

3.

a.  Has a deportation order to send the applicants to Sudan or Eritrea been issued? If not, with reference to the complaint raised under Article 5 of the Convention, what was the reason for their detention at the international transit zone of the Istanbul Atatürk Airport and the Kumkapi Foreigners’ Admission and Accommodation Centre?

b.  Did the applicants’ detention comply with the requirements of deprived of his liberty Article 5 § 1 of the Convention? In particular, does did the deprivation of liberty fall within paragraph (f) of this provision?

c.  Were the applicants informed promptly, in a language which they understood, of the reasons for their deprivation of liberty, as required by Article 5 § 2 of the Convention, when they were detained?

d.  Did the applicants have at their disposal an effective remedy by which they can could challenge the lawfulness of their deprivation of liberty, as required by Article 5 § 4 of the Convention? What is the applicable law and practice in Turkey for the governing judicial review of the lawfulness and length of detention of foreigners who were arrested under the “inadmissible person” procedure?

e.  Did the applicants have an effective and enforceable right to compensation for their detention in alleged contravention of Article 5 §§ 1, 2 and 4, as required by Article 5 § 5 of the Convention?

4.  Were the applicants’ lawyers prevented from meeting with them and obtaining a power of attorney during the time they were kept at the international transit zone of the Istanbul Atatürk Airport? If so, can the authorities’ refusal be considered as hindering the effective exercise of the applicants’ right of individual petition, guaranteed by Article 34 of the Convention (Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 129, ECHR 2005-I; Shtukaturov v. Russia, no. 44009/05, §§ 138-149, 27 March 2008; and D.B. v. Turkey, no. 33526/08, §§ 66-67, 13 July 2010)?