Communicated on 27 May 2015
SECOND SECTION
Application no. 4633/15
Gezel BIIMURZAEVA and others
against Turkey
lodged on 22 January 2015
STATEMENT OF FACTS
1. The applicants, Ms Gezel Biimurzaeva, Ms Amina Timurlan Idikova, Mr Muaz Zubairov and Ms Khadidzha Zubairova, are Russian nationals, who were born in 1986, 2008, 2012 and 2013 and live in Gaziantep. The first applicant is the mother of the second, third and fourth applicants. They are represented before the Court by Mr A. Yılmaz and Mr F. Amca, lawyers practising in Istanbul.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The applicants’ detention, the asylum procedure and the proceedings brought by the applicants
2. On an unspecified date the applicants arrived in Turkey with a valid visa.
3. On 18 October 2014 the first applicant was arrested in the province of Kilis, when she and her children were in the vicinity of the Turkish-Syrian border. According to the official documents in the case file, the applicants arrived in Turkey on 17 October 2014 and the next day they were taken into the custody of gendarmerie as they had attempted to cross the border illegally.
4. The applicants were subsequently placed in administrative detention in Kilis until 22 October 2014, the date on which they were transferred to the Kumkapı Foreigners’ Removal Centre.
5. On 22 November 2014 the Istanbul governor’s office decided to deport the applicants.
6. On 3 December 2014 the applicants’ representative filed a case with the Istanbul Administrative Court against the decision of 22 November 2014. The case is currently pending.
7. In the meantime, on 19 November 2014 the first applicant sent a petition to the Istanbul governor’s office in which she sought asylum in Turkey for her and her children.
8. On 17 December 2014 the applicants’ request for asylum was rejected by the Directorate General of Migration Management attached to the Ministry of the Interior.
9. On 22 December 2014 the decision of 17 December 2014 was notified to one of the applicants’ lawyers.
10. On 6 January 2015 the applicants lodged a case with the Ankara Administrative Court and requested the annulment of the decision of 17 December 2014. The proceedings are currently pending.
11. Meanwhile, between 11 November 2014 and 6 January 2015 the applicants lodged six petitions with the Istanbul Magistrates’ Court and requested to be released. In their petitions, the applicants stated that they had requested asylum and that administrative detention should therefore have been the last resort in their respect. They contended that the reasons for their detention had not been specified in the decision to detain them. Besides, no official decision was taken in respect of the second, third and fourth applicants. The applicants also stated, referring to the Court’s judgment in the case of Yarashonen v. Turkey (no. 72710/11, 24 June 2014), that the conditions of detention at the Kumkapı Removal Centre constituted inhuman treatment and were in particular not suitable for children.
12. By decisions dated 21 November 2014, 2 and 9 December 2014 and 12 and 29 January 2015 the Istanbul Magistrates’ Court dismissed the applicants’ requests for their release. In its decision dated 21 November 2014 the Magistrates Court noted that the first applicant had been taken into the custody of the gendarmerie when she had attempted to enter the Syrian territory illegally and that a decision to expel and to detain her had been issued. The court also noted that there was no decision for the administration detention for the other applicants. The court held that the first applicant’s detention was in accordance with law. In its other decisions, the Magistrates’ Court also took into consideration the submissions of the Istanbul Governor’s office, according to which the decisions to expel and detain the first applicant had been taken pursuant to Articles 54 and 57 of the Law on Foreigners and International Protection (Law no. 6458). In its decision of 9 December 2014 the court further observed that the first applicant had not been in possession of a valid visa when she was apprehended and that she had been taken into custody as she had been suspected of endangering public security and attempting to cross the border illegally. In the decision dated 12 January 2015 the Magistrates’ Court noted that a deportation decision had been taken in respect of the first applicant pursuant to Section 54(1)(d) of the Foreigners and International Protection Act (Law no. 6458).
13. On 22 January 2015 the applicants were transferred to the Gaziantep Removal Centre.
14. On 30 January 2015 the applicants lodged a petition with the Gaziantep Magistrates’ Court and requested to be released. They contended that there was no decision taken in respect of the second, third and fourth applicants and that there was no reason to keep them in administrative detention as they had claimed asylum. The applicants noted that the cases that they had lodged against the deportation decision and the rejection of their asylum claim were pending and that therefore they could not be deported. The applicants also noted that the conditions of detention in the removal centre were not suitable for children.
15. On 5 February 2015 the Gaziantep Magistrates’ Court admitted the applicants’ objection. The court noted that the applicants had been detained for more than three months. The court stressed that three of the applicants were 2, 3 and 7 years’ old and given their ages, they could not pose any threat to public order, public security or public health. The court further noted the state of health of the children in its decision. The Gaziantep Magistrates’ Court further observed that the decision taken in respect of the first applicant did not contain any concrete reason for her detention and that she could not be deported as the judicial proceedings were ongoing. As a result, the court ordered the applicants’ release from the Gaziantep Removal Centre if the expulsion could not be carried out immediately.
16. On 10 February 2015 the applicants lodged a petition with the Directorate General of Migration Management and requested that the decisions of the Gaziantep Magistrates’ Court of 5 February 2015 and the European Court of Human Rights of 23 January 2015 (see below) be executed and they be released.
On the same day the applicants were released from the removal centre on the conditions of residing in Gaziantep and reporting to a police station three times a week.
2. The conditions of detention at the Kumkapı and Gaziantep Foreigners’ Removal Centres
17. The applicants claim that the Kumkapı Removal Centre was severely overcrowded at the time of their detention between 22 October 2014 and 22 January 2015. The centre had an overall capacity of 300 people at the relevant time, but accommodated around 600 people. The overcrowding of the centre led to problems of hygiene. The building was infested with insects. The first applicant claimed that her children were bitten by insects and bedbugs. On an unspecified date the applicants’ room was disinfected. Yet, the officers did not let the children leave the room during the process of disinfection.
18. The applicants further submit that the centre was not sufficiently heated and ventilated and that they were exposed to tobacco smoke as other detainees smoked indoors.
19. The quality and quantity of the food provided was also poor. In particular, they did not meet the nutritional needs of the children. The applicants’ lawyers had to take them baby food, milk, fruits. The applicants’ other needs, such as diapers, baby creams, clothes and toys, were also provided by their lawyers when the latter could visit them.
20. The physical conditions of the centre were also not suitable for children. The third applicant who was two years’ old at the time fell from the bunk bed in the room where the applicants stayed, hit his head on the radiators and had to be hospitalised. Besides, children were not provided a play area or special activities for children and there was no regular provision for outdoor exercise.
21. The applicants finally submit that in January 2015 the third and the fourth applicants were not provided medical care although they suffered from bronchitis and an allergy respectively and requested medical treatment.
22. On 22 January 2015 the applicants were transferred to the Gaziantep Removal Centre, where they were held until 10 February 2015. According to their account, the conditions at this centre were even worse than those at Kumkapı: they were held in a room of 10 sq. m. together with three other women and one child. There were people who slept in the corridors of the centre. The problems concerning the quality of food, the hygiene, the lack of outdoor exercise and the absence of a play area for children also existed at this centre. The applicants were given milk, fruits, and winter clothes by their lawyers. The second, third and fourth applicants were provided medical care only after the applicants’ lawyer requested medical assistance for them although they suffered from high fever.
3. Application to the Constitutional Court
23. On 15 December 2014 the applicants lodged an individual application with the Constitutional Court. In their application they alleged that their conditions of detention constituted ill-treatment; that their detention was unlawful; that their detention breached their right to private and family life and that they did not have an effective remedy whereby they could challenge the unlawfulness and the conditions of their detention. The applicants also requested the Constitutional Court to apply an interim measure and to order their release from the removal centre. In their petition, the applicants referred to, inter alia, the Court’s judgments in the cases of Yarashonen v. Turkey (cited above), and Musaev v. Turkey, (no. 72754/11, 21 October 2014), the reports of the Council of Europe Commissioner for Human Rights, the United Nations Special Rapporteur on the Human Rights of Migrants, the Human Rights Institution of Turkey in support of their allegation that the conditions at the Kumkapı Removal Centre did not comply with the requirements of Article 3 of the Convention.
24. On 9 January 2015 the Constitutional Court rejected the applicants’ application for the interim measure. In its decision, the high court noted that the applicants had failed to lay the basis of an arguable claim that there was an immediate risk to their lives or their physical or moral integrity. The court considered that the applicants’ allegations concerning the problems of hygiene and the lack of adequate food and fresh air at the centre did not constitute an existing and personal risk for them. The Constitutional Court however noted that the State authorities were responsible to provide basic and urgent health services to the persons held in removal centres.
B. Relevant domestic law
25. On 11 April 2014 the Foreigners and International Protection Act (Law no. 6458) entered into force.
Sections 52-60 of the Act concern the procedure for the removal of foreign nationals from Turkey, the judicial review of removal orders and detention pending removal. The provisions relevant to the present case are as follows:
“Deportation
Section 52 - (1) Foreigners may be deported to their country of origin or a transit country or a third country by a deportation decision.
Deportation decision
Section 53 - (1) Deportation decision shall be issued upon the instructions of the Directorate General or ex officio by governors’ offices.
(2) The decision and the reasons on which it is based shall be notified to the foreigner, his or her legal representative or his or her lawyer. In case the person against whom a deportation order is issued is not represented by a lawyer, he or she or his or her legal representative shall be notified of the result of the decision as well as the procedures and time limits for appeal.
(3) The foreigner, his or her legal representative or his or her lawyer may appeal to the administrative court against the deportation decision within fifteen days as of the date of notification. The person who has appealed the decision shall also inform the authority that has issued the deportation decision about the appeal lodged to the court.
Applications to courts shall be concluded in fifteen days. Decisions of courts on the issue shall be final. Within the time-limit for bringing a case against the deportation decision or in case of an appeal, until the finalisation of the judgment, the foreigner shall not be deported, without prejudice to his or her consent.
Those against whom a deportation decision shall be issued
Section 54 - (1) A deportation decision may be issued against foreigners:
...
d) Who constitute a threat to public order and security or public health,
...
Administrative detention for deportation and its period
Section 57 - (1) When foreigners who fall into one of the categories listed in Section 54 of the present Law are apprehended by law-enforcement units, the governors’ offices shall be notified immediately for a decision to be taken in their respect. A deportation decision shall be issued by the governors’ offices for a foreigner in respect of whom such a decision is deemed necessary. The period for an assessment and taking a decision shall not exceed 48 hours.
(2) A foreigner in respect of whom a deportation decision has been issued shall be placed in administrative detention by a decision of the governor’s office if that person may abscond or disappear; violates rules for entry into and exit from Turkey; uses fraudulent or unfounded documents; does not leave Turkey in the granted period without an acceptable excuse; constitutes a threat to public order and security or public health. Those in respect of whom an administrative detention order is issued shall be transferred by the law-enforcement unit which has apprehended the foreigner to a removal centre within 48 hours.
(3) The period of administrative detention in removal centres shall not exceed six months. However, in case the deportation procedures cannot be completed due to the failure of the foreigner to co-operate or to misinformation or provision of false documents by the foreigner regarding his or her country, this period may be extended for a maximum of six additional months.
(4) The necessity to continue the administrative detention shall be re-assessed regularly every month by the governor’s office. When necessary, re-assessment can be conducted at an earlier period. In case administrative detention is no longer deemed to be necessary for the foreigner, it shall immediately be terminated. Foreigners who are released may be subject to obligations such as residence in a designated address and reporting to authorities in the form and periods requested.
(5) The administrative detention decision, the extension of the period of administrative detention and the results of the monthly assessments, along with the reasons on which the assessments are based, shall be notified to the foreigner, his or her legal representative or his or her lawyer. In case the person against whom a deportation order has been issued is not represented by a lawyer, he or she or his or her legal representative shall be notified of the result of the decision as well as the procedures and time limits for appeal.
(6) The person who has been placed in administrative detention, his or her legal representative or his or her lawyer may lodge an appeal against the administrative detention decision with the Magistrates’ Courts. The appeal shall not stay the execution of the administrative detention. In case the petition is submitted to the administration, it shall be conveyed to the competent Magistrates’ Court without delay. The Magistrates’ Court shall conclude the review within five days. The decision of the Magistrates’ Court shall be final. The person who has been taken under administrative detention or his or her legal representative or his or her lawyer may lodge other appeals with the Magistrates’ Courts, claiming that the conditions for administrative detention have ceased to exist or have changed.
(7) A foreigner who lodges an appeal against the detention order and who does not have the means to afford a lawyer, shall be provided legal aid upon demand, in accordance with the relevant provisions of the Attorneys Act (Law no. 1136) of 19 March 1969.
Removal centres
Section 58 - (1) Foreigners who are placed under administrative detention shall be accommodated in removal centres.”
Articles 68 and 71 of Law no. 6458 concern administrative detention of persons who seek international protection and their residence obligations and read, in so far as relevant, as follows:
“Administrative detention of applicants
Section 68 - (1) An applicant shall not be subject to administrative detention for the sole reason that he or she has applied for international protection.
(2) Administrative detention of applicants is an exceptional measure. The applicant may only be placed under administrative detention:
a) for the purpose of verification of identity documents and nationality in case there are serious doubts as to the accuracy of identity documents and nationality;
b) for the purpose of being withheld from irregular entry into the country at the border gates;
c) when it would not be possible to identify the main elements of the asylum application unless administrative detention is applied;
ç) when the person poses a serious danger to public order and security.
(3) The necessity of administrative detention is assessed on an individual basis. For circumstances mentioned in the second paragraph and prior to a decision on administrative detention, an assessment shall be made primarily as to whether the residence and notification obligation set forth in Section 71 of the present Law will suffice. Governor’s office may decide to apply other measures instead of an administrative detention. When such measures are not sufficient, administrative detention shall be executed.
(4) The decision for administrative detention, including the reasons on which the decision is based and duration of detention shall be notified to the person who has been placed in administrative detention, or to his or her legal representative or lawyer. In case the person who has been placed in administrative detention is not represented by a lawyer, the effect of the decision and the procedure for lodging an appeal against the decision shall be notified to him or her, or his or her legal representative.
(5) The period of administrative detention shall not exceed 30 days. The procedure in respect of those who are placed in administrative detention shall be completed in the soonest possible time. The administrative detention shall be terminated once the conditions for administrative detention cease to exist.
(6) The administrative detention may be lifted and fulfilment of obligations defined in Section 71 or other measures may be instructed by the decision making authority at any stage of administrative detention.
(7) Either the person subjected to administrative detention, or his or her legal representative or his or her lawyer may apply to Magistrates’ Courts for immediate release. The application shall not stay the execution of administrative detention. In case the petition is submitted to the administrative authorities, the petition shall be forwarded to the competent Magistrates’ Court without delay. The judge shall finalise the review within five days. The decision of the Magistrates’ Court shall be final. The person who has been placed in administrative detention or his or her legal representative or his or her lawyer may lodge further appeals with the Magistrates’ Courts and claim that the conditions for administrative detention have ceased to exist or changed.
(8) An applicant who is placed under administrative detention pursuant to provisions of the second paragraph shall be allowed to receive visitors, in accordance with the principles and procedures to be determined by a regulation. Access shall be provided to his or her legal representative, lawyer, a notary as well as representatives of United Nations High Commissioner for Refugees.
Obligation of residence and obligation of notification
Section 71 - (1) Administrative obligations such as residence in a designated reception and accommodation centre, location or province as well as reporting in the requested form and intervals may be imposed on the applicant.
(2) The applicant shall be obliged to register in the address registration system and notify his or her residence address to the governor’s office.”
PROCEDURE BEFORE THE COURT
26. On 22 January 2015, when the application was lodged, the applicants’ representatives requested that the Court adopt an interim measure, under Rule 39 of the Rules of Court, for the applicants’ release from the Kumkapı Foreigners’ Removal Centre.
27. On 23 January 2015 the Acting President of the Section to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court to indicate to the Government, under Rule 39 of the Rules of Court, that necessary measures should be taken to ensure that the detention conditions of the applicants are compatible with Article 3 of the Convention. The Government were further requested to inform the Court as to whether the conditions of the applicants’ detention at the Kumkapı Foreigners’ Removal Centre were compatible with Article 3 of the Convention and as to whether those conditions could be considered appropriate for the second, third and fourth applicants. The Government were also invited to submit information, documents and photographs/video footage indicating the conditions of detention at the Kumkapı Removal Centre.
28. On 4 February the respondent Government made submissions as regards the conditions of detention at the Kumkapı Foreigners’ Removal Centre. They also submitted a number of photographs and video recordings of the Kumkapı and Gaziantep Removal Centres in support of their replies.
29. As to the conditions at the Kumkapı Removal Centre, the Government submitted, in particular, that the applicants stayed in an area where children and their parents were held and which was not locked. According to the Government, the applicants and other detainees were provided meals three times a day. Each child was also given 500 ml of milk every day. The children had a play area. The applicants had access to a medical practitioner in cases of emergency. They could also make telephone calls whenever they wished. The Government submitted that the building was disinfected regularly and the rooms were heated. The applicants were also allowed to go outside the building during day time. The Government submitted three photographs in respect of the Kumkapı Centre in which a child is seen holding a puzzle with a woman who is described as the psychologist of the centre underneath the photograph. There are also five video recordings. In three of these video recordings a woman holding a baby and two boys are seen going downstairs inside the building. In the fourth video footage they are seen in an area with concrete ground next to the building where there are five vehicles walking towards a playground slide. The children then play on the slide. In the fifth video a woman is seen using a public phone and a boy stands next to her.
30. According to a letter dated 30 January 2015 sent to the Ministry of Justice by the Ministry of the Interior and submitted to the Court by the Government, at the Gaziantep Removal Centre the applicants were kept separately from other detainees and were provided meals three times a day as well as milk. They were given medical care when they fell ill and could go outside during the day. In respect of this centre, the Government submitted seven photographs. In two of these photographs a bunk bed is seen. A third photograph shows a room in which there are four armchairs, a television and a sofa. Three photographs show the toilets and a shower room and in the last photograph two park benches and a wooden table in an open‑air space are seen.
COMPLAINTS
31. The applicants complain under Articles 3 and 8 of the Convention about the conditions of detention at the Kumkapı and Gaziantep Foreigners’ Removal Centres.
32. The applicants allege under Article 5 § 1 of the Convention that their detention at the Kumkapı and Gaziantep Foreigners’ Removal Centre was unlawful. They contend, in particular, that there was no decision to detain the second, third and fourth applicants and that they were arbitrarily detained between 5 and 10 February 2015.
33. The applicants further contend under Article 5 § 2 of the Convention that they were not informed of the reasons for their detention at the removal centres.
34. The applicants maintain under Article 5 § 4 of the Convention that there was no effective remedy in Turkish domestic law whereby they could challenge the lawfulness of their detention.
35. The applicants further contend under Article 5 § 5 of the Convention that there was no effective remedy capable of ensuring their right to compensation.
36. The applicants complain under Article 13 of the Convention that they did not have an effective domestic remedy whereby they could raise their allegations under Articles 3 and 8 of the Convention.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
In particular:
(a) Is the individual application to the Constitutional Court an effective remedy within the meaning of Article 35 § 1 of the Convention in respect of the applicant’s complaints under Articles 3, 5 and 8 of the Convention? What is the relevance of the decision of the Constitutional Court dated 9 January 2015 in this respect?
(b) Is the remedy provided by Section 57(6) of Law no. 6458 an effective remedy within the meaning of Article 35 § 1 of the Convention in respect of the applicants’ complaints under Articles 3, 5 and 8 of the Convention?
2. Were the conditions of the applicants’ detention at the Kumkapı and Gaziantep Foreigners’ Removal Centres compatible with Article 3 of the Convention?
3. Has there been a violation of the applicants’ right to respect for their private and family life contrary to Article 8 of the Convention?
4. Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 3 and 8 of the Convention, as required by Article 13 of the Convention?
5. Did the applicants’ detention comply with the requirements of Article 5 § 1 of the Convention?
6. Has there been a violation of Article 5 § 1 of the Convention on account of the applicants’ detention between 5 February and 10 February 2015?
7. Were the applicants informed promptly of the reasons for their detention as required by Article 5 § 2 of the Convention?
8. Did the applicants have at their disposal a remedy by which they could challenge the lawfulness of their deprivation of liberty, as required by Article 5 § 4 of the Convention?
9. 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?
The Government are invited to submit information and supporting documents on the conditions at the Kumkapı and Gaziantep Foreigners’ Removal Centres, in particular the size and the capacity of the rooms where the applicants were held at these removal centres and the number of occupants held in those rooms between 22 October 2014 and 10 February 2015.
The Government are also invited to submit all documents relating to the applicants’ detention and their release.
The parties are requested to submit, within the same time-limit, reports or information documents regarding the conditions of detention at the Gaziantep Removal Centre from reliable sources.
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