Communicated on 6 December 2016
SECOND SECTION
Application no. 16026/12
Samat AMERKHANOV
against Turkey
lodged on 12 March 2012
STATEMENT OF FACTS
The applicant, Mr Samat Amerkhanov, is a Kazakhstani national who was born in 1989 and is detained in Atyrau Prison in Kazakhstan. He is represented before the Court by Mr A. Yılmaz and Ms S.N. Yılmaz, lawyers practising in Istanbul.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant lived in Atyrau, Kazakhstan until 2010. In January 2010 he was asked to go to a police station as a friend of his had informed the police that the applicant had witnessed a fight between him and another friend of the applicant. On that day his statement was taken by the police. The next day he was once again invited to the police station, where, this time, he was beaten by the police. He was subjected to ill-treatment because he was an observant Muslim who worshipped and who wore a beard. Between January and November 2010 the applicant was constantly harassed by the police, taken into police custody and ill-treated again on account of his religious identity. On 27 November 2010 the applicant left Kazakhstan and arrived in Turkey on a tourist visa.
On 9 June 2011 with a view to requesting a residence permit in Turkey, the applicant went to the Istanbul police headquarters, where he was arrested. On the same day he was transferred to the Kumkapı Foreigners’ Removal Centre.
On unspecified dates the applicant applied to the national authorities and to the United Nations High Commissioner for Refugees (UNHCR) and asked to be recognised as a refugee.
On 28 June 2011 the applicant was notified by the police that his asylum request had been rejected.
On 29 June 2011 UNHCR issued an asylum-seeker certificate to the applicant.
On 5 July 2011 the applicant’s lawyer lodged a petition with the police department responsible for foreigners, borders and asylum attached to the Istanbul police headquarters objecting to the decision to reject the applicant’s asylum request. The lawyer asked the authorities to review their decision and to conduct a second interview with the applicant.
On 11 July 2011 the applicant’s lawyer lodged a petition with the Istanbul Magistrates’ Court, requesting his client’s release. The applicant’s lawyer also stressed that the applicant was being kept in poor detention conditions. He received no reply to his request.
On 16 August 2011 the police conducted a second interview with the applicant.
On 22 and 25 August 2011 the applicant’s lawyer filed two further petitions with the police and asked that his client be released.
On 13 September 2011 the applicant was released from the Kumkapı Foreigners’ Removal Centre, as the asylum proceedings were pending. The applicant was ordered to go and live in the province of Sakarya.
As regards the conditions of his detention at the Kumkapı Foreigners’ Removal Centre between 9 June and 13 September 2011, the applicant submits that he was not offered the opportunity to take any outdoor exercise while he was in detention. Moreover, the Centre was overcrowded, and because of that overcrowding, the hygiene conditions at the Centre were poor.
On 29 September 2011 the applicant went to Sakarya, where he lived until 15 March 2012.
On 24 October 2011 the applicant was granted a residence permit, valid until 20 May 2012.
On 15 March 2012 the applicant was served a document informing him that his asylum request had been rejected on 2 March 2012 and that he could not benefit from subsidiary protection either. The document informed him that he was banned from entering Turkish territory. On the same day the applicant was detained.
On 16 and 19 March 2012 the applicant’s lawyer filed two petitions with the Ministry of the Interior requesting that his client be released. The lawyer noted that he had received a phone call from the applicant, who had stated that he would be deported to Kazakhstan, where he would be subjected to torture.
On 22 March 2012 the applicant’s lawyer lodged a case the Ankara Administrative Court, requesting that the court annul the decisions of the Ministry to reject the applicant’s asylum request and to deport the applicant from Turkey. He requested a stay of execution of the decision to deport the applicant pending the proceedings. In support of his petition, the applicant’s lawyer submitted a number of documents to the Ankara Administrative Court, including a document downloaded from the Atyrau police department website, according to which an arrest warrant had been issued in respect of the applicant. The document, which was also submitted to the Court, contained the applicant’s name, photograph and the charge brought against him (hooliganism, under Article 257 § 3 of the Kazakhstan Criminal Code). He also submitted a copy of a page of a newspaper published in Kazakhstan in April 2011 according to which an arrest warrant had been issued in respect of the applicant.
On 11 May 2012 the Ankara Administrative Court rejected the request for a stay of execution of the deportation decision.
Meanwhile, on 19 March 2012 the applicant was deported to Kazakhstan.
On 13 February 2013 the Ankara Administrative Court dismissed the case brought by the applicant on 22 March 2012. In its judgment, the administrative court noted that according to information obtained from the National Intelligence Organisation (Milli İstihbarat Teşkilatı), the applicant was involved in international terrorism and had carried out terrorist activities when he had been in Turkey. The Ankara Administrative Court further noted that on the basis of the documents in the case file, the applicant could not be considered to have met the conditions for being considered a refugee and concluded that the administrative decisions to reject the applicant’s asylum request and to deport the applicant from Turkey had been lawful.
According to information obtained by the Registry of the Court from the website of the Supreme Administrative Court, on 27 April 2016 the Supreme Administrative Court upheld the judgment of 13 February 2013.
According to a letter dated 27 May 2013 sent to the Court by the applicant’s lawyer, the applicant was transferred to the custody of Kazakhstan’s security forces upon his return to Kazakhstan and was then remanded on custody in Atyrau Prison. The lawyer stated that he did not have information supported by any document as to whether the applicant had been subjected to ill-treatment in Kazakhstan.
PROCEDURE BEFORE THE COURT
On 19 March 2012 at 4.22 p.m. the applicant’s lawyer sent a fax message to the Court and, relying on Rule 39 of the Rules of Court, asked the Court to suspend the applicant’s deportation to Kazakhstan, which was scheduled to take place at 7.45 p.m. the same day.
On the same day at 6.51 p.m. the applicant’s lawyer was informed that due to due to its late submission, the Court was not in a position to consider his request.
COMPLAINTS
The applicant complains under Articles 3 and 13 of the Convention that he was deported to Kazakhstan without an assessment of his claim that he ran the risk of being subjected to torture and other ill-treatment if returned to his country.
The applicant complains under Articles 3 and 13 of the Convention about the conditions of detention at the Kumkapı Foreigners’ Removal Centre and about the absence of any effective domestic remedy whereby he could raise his allegations concerning the conditions of his detention.
The applicant alleges under Article 5 § 1 of the Convention that he was unlawfully deprived of his liberty at the Kumkapı Foreigners’ Removal Centre for fourteen days as there was no legal basis in domestic law for his detention.
The applicant further contends under Article 5 § 2 of the Convention that he was not informed of the reasons for his detention at the Kumkapı Foreigners’ Removal Centre.
The applicant further alleges under Article 5 § 4 of the Convention that he did not have an effective domestic remedy whereby he could challenge the lawfulness of his detention.
The applicant complains under Article 5 § 5 of the Convention that he did not have a remedy whereby he could claim compensation for his unlawful detention.
QUESTIONS TO THE PARTIES
1. Did the applicant’s removal to Kazakhstan on 19 March 2012 entail a real risk that he would be subjected to treatment in violation of Article 3 of the Convention? Was the presence of such a risk assessed prior to his deportation to Kazakhstan?
2. Were the conditions of the applicant’s detention at the Kumkapı Foreigners’ Removal Centre compatible with Article 3 of the Convention?
The Government are invited to submit information and supporting documents regarding the conditions at the Kumkapı Foreigners’ Removal Centre, in particular the capacity of the rooms and the number of occupants held in them between 9 June and 13 September 2012, the opportunities for fresh air and daily exercise, and the hygiene conditions.
3. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 of the Convention, as required by Article 13 of the Convention? In particular,
a. Was an official deportation decision taken in respect of the applicant’s deportation to Kazakhstan on 19 March 2012 and was the applicant notified of that decision?
b. Did the applicant have an effective remedy whereby he could have his allegations that he would be exposed to a real risk of treatment in violation of Article 3 examined by the national authorities prior to his deportation to Kazakhstan?
c. Did the applicant have an effective remedy whereby he could raise his allegations concerning the alleged poor conditions of detention at the Kumkapı Foreigners’ Removal Centre?
The Government are invited to submit the documents relevant to the applicant’s request for asylum, including the assessment made by the national authorities and the documents proving notification of the deportation, as well as a copy of the deportation decision.
4. Did the applicant’s detention comply with the requirements of Article 5 § 1 of the Convention?
5. Was the applicant informed promptly of the reasons for his detention, as required by Article 5 § 2 of the Convention?
6. Did the applicant have at his disposal a remedy by which he could challenge the lawfulness of his deprivation of liberty, as required by Article 5 § 4 of the Convention?
7. Did the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5, as required by Article 5 § 5 of the Convention?
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