Communicated on 12 December 2016
SECOND SECTION
Application no. 69929/12
Arman BATYRKHAIROV
against Turkey
lodged on 10 September 2012
STATEMENT OF FACTS
The applicant, Mr Arman Batyrkhairov, is a Kazakhstan national who was born in 1980 and is detained in Atyrau Prison in Kazakhstan. He is represented before the Court by Mr A. Yılmaz, a lawyer practising in Istanbul.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant left Kazakhstan in 2008 and lived in Saudi Arabia and Syria as a student until June 2011. He did not wish to return to his country as a number of people had been detained on charges of religious extremism in Kazakhstan and some of his friends had left the country after coming under pressure from the Kazakhstan government due to their political and religious identity.
In June 2011 the applicant arrived in Turkey, where he sought asylum on 4 November 2011.
On 28 November 2011 his asylum request was rejected. It should be noted that the applicant did not specify in his application form whether he objected to the decision of 28 November 2011.
On 18 January 2012 the applicant went to the Istanbul Security Headquarters, where he informed the authorities that he had been offered a visa to enter and live in Egypt and that he therefore wished to withdraw his asylum application. The applicant asked to be authorised to leave Turkey. On the same day the police authorised the applicant to leave the country.
On 19 January 2012, while he was waiting at the Istanbul Atatürk Airport to take a flight to Egypt, the applicant was taken into police custody on the basis of an extradition request submitted to the Turkish authorities by the Kazakhstan government. According to a document dated 6 January 2012 sent by the Deputy Director of the General Police Headquarters to a number of police authorities, on 4 January 2012 the Kazakhstan ambassador in Ankara requested the Interior Minister to extradite Kazakhstan nationals who had been involved in terrorist acts and in respect of whom Kazakhstan had issued a wanted notice (“Red Notice”) via Interpol.
On 23 January 2012 the Police’s Interpol-Europol department attached to the General Police Headquarters informed the Ministry of Justice and a number of security departments that a Red Notice had been issued by Kazakhstan via Interpol in respect of the applicant on the basis of terrorism‑related offences.
On 24 January 2012 the Bakırköy Magistrates’ Court ordered the applicant’s detention within the context of the extradition proceedings for a period of forty days.
On 25 January 2012 the applicant lodged a petition with the Bakırköy Assize Court challenging the extradition request and his detention. In his petition, he stated, inter alia, that a person who would be subjected to torture or other forms of ill-treatment in his country of origin should not be extradited to the country in question.
On an unspecified date the applicant’s petition was dismissed.
On 28 February 2012 the Bakırköy Assize Court rejected the extradition request. According to the reasoning contained in the court’s decision, in his defence submissions the applicant had contended that he had been wrongly accused of being a member of al‑Qaeda or Islamic Jihad and had asked the court not to extradite him to Kazakhstan. The Bakırköy Assize Court held that the applicant could not be extradited to Kazakhstan because his extradition had been requested on the ground that he had been a member of a terrorist organisation in Kazakhstan and since the charge fell within the scope of one of the offence categories listed in Article 18 § 1 (b) of the Criminal Code, as in force at the material time (that is to say speech offences, political offences and military offences). The court also ordered the applicant’s release from detention. The decision of 28 February 2012 became final as no appeal was lodged against it with the Court of Cassation.
On the same day the applicant was released from prison but was subsequently transferred to the Kumkapı Foreigners’ Removal Centre in Istanbul.
On 7 March 2012 the Deputy Director of General Security ordered the Istanbul Police Headquarters to deport the applicant.
On 21 March 2012, when he went to the Kumkapı Foreigners’ Removal Centre to meet the applicant, the applicant’s lawyer was orally informed by officers at the centre that the applicant had been deported to Kazakhstan on 12 March 2012.
Upon a request by the applicant’s lawyer, on 31 May 2012 the Istanbul Police Headquarters sent a letter to the applicant’s lawyer informing him that the applicant had been deported to Kazakhstan on 12 March 2012.
According to a letter dated 10 May 2014 sent to the Court by the applicant’s representative, upon his return to Kazakhstan the applicant was remanded in custody and placed in Atyrau Prison. The lawyer stated that he did not have information as to whether the applicant had been subject to ill‑treatment in Kazakhstan given that the applicant’s family members had refrained from answering his questions regarding that matter during their telephone conversations with him.
As regards the conditions of his detention at the Kumkapı Foreigners’ Removal Centre between 28 February and 12 March 2012, the applicant submits that he had not been offered the opportunity to take any outdoor exercise while in detention. Moreover, the centre had been overcrowded, and because of that overcrowding, the hygiene conditions at the centre had been poor.
B. Relevant domestic law and practice
The relevant parts of Article 18 § 1 (b) of the Criminal Code, as in force at the material time, read as follows:
“A foreign national accused ... of a criminal offence allegedly committed in a foreign country may be returned upon request to that country for prosecution ... However, an extradition request shall be rejected ...
...
b) If the act [in question] is in the nature of a speech offence, a political offence or a military offense ...”
COMPLAINTS
The applicant complains under Articles 3 and 13 of the Convention that he was deported to Kazakhstan despite the Bakırköy Assize Court’s decision of 28 February 2012 and without any assessment of his claim that he ran the risk of being subjected to torture and other ill-treatment if returned to his country, even though such a risk existed at the time in question.
The applicant complains under Articles 3 and 13 of the Convention about the conditions of detention at the Kumkapı Foreigners’ Removal Centre and of 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 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 have challenged 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 12 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 on the conditions at the Kumkapı Foreigners’ Removal Centre, in particular the capacity of the rooms and the number of occupants held in them between 28 February and 12 March 2012, the availability of 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 12 March 2012 and was the applicant notified of that decision?
b. Did the applicant have access to a lawyer, with a view to challenging the deportation decision before the national courts?
c. Did the applicant have an effective remedy whereby he could have had 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?
d. Did the applicant have an effective remedy whereby he could have raised 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 documents proving the notification of the deportation, as well as a copy of the deportation order.
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?
Full & Egal Universal Law Academy