CASE OF GHORBANOV AND OTHERS v. TURKEY

SECOND SECTION

CASE OF GHORBANOV AND OTHERS v. TURKEY

(Application no. 28127/09)

JUDGMENT

STRASBOURG

3 December 2013

FINAL

03/03/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Ghorbanov and Others v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Guido Raimondi, President,
Işıl Karakaş,
Peer Lorenzen,
András Sajó,
Nebojša Vučinić,
Paulo Pinto de Albuquerque,
Egidijus Kūris, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 12 November 2013,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 28127/09) 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 nineteen Uzbek nationals, Mr Anvar Ghorbanov, Ms Nasibeh Ghorbanov, Ms Nadereh Ghorbanov, Ms Omokolsoum Ghorbanov, Mr Mohammad Ghorbanov, Mr Ibrahim Ghorbanov, Mr Ologhbeig Rahmanov, Ms Tajkhan Rahmanov, Ms Ameneh Rahmanov, Mr Mohammadali Rahmanov, Ms Maryam Rahmanov, Ms Fatima Rahmanov, Ms Zehra Rahmanov, Mr Oktamjan Rahmanov, Ms Sedaghat Rahmanov, Ms Rahimeh Rahmanov, Ms Marziyeh Rahmanov, Mr Zaher Tordiev and Ms Maheireh Tordiev (“the applicants”), on 10 April 2009.

2. The applicants, who had been granted legal aid, were represented by Ms S. Yılmaz and Mr A. Yılmaz, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

3. On 24 August 2010 the application was declared partly inadmissible and the complaints concerning the applicants’ repeated deportation, the lack of an effective domestic remedy in that respect, the unlawfulness of depriving the applicants of their liberty, their right to be informed promptly of the reasons for their detention, and their right to institute proceedings to challenge the lawfulness of their detention were communicated to the Government. The Court also decided to rule on the admissibility and merits of the application at the same time (Article 29 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants are members of four families. Anvar Ghorbanov and Nasibeh Ghorbanov were born in 1970 and 1975 and are married. Nadereh Ghorbanov, Omokolsoum Ghorbanov, Mohammad Ghorbanov and Ibrahim Ghorbanov are their children who were born in 1994, 1996, 2001 and 2002 respectively. Ologhbeig Rahmanov and Tajkhan Rahmanov were born in 1969 and 1973 and are married. Ameneh Rahmanov, Mohammadali Rahmanov, Maryam Rahmanov, Fatima Rahmanov and Zehra Rahmanov are their children who were born in 1996, 1998, 2003, 2008 and 2008 respectively. Oktamjan Rahmanov and Sedaghat Rahmanov were born in 1973 and 1978 and are married. Rahimeh Rahmanov and Marziyeh Rahmanov are their children who were born in 1998 and 2000 respectively. Zaher Tordiev and Maheireh Tordiev are married and were born in 1980 and 1993 respectively. Maheireh Tordiev is the daughter of Ologhbeig Rahmanov and Tajkhan Rahmanov.

5. The applicants currently live in hiding in Turkey.

6. According to the applicants’ submissions, they were living in Andijan when they decided to leave Uzbekistan as a result of increasing State pressure on those who practised Islam. A number of their family members, friends or relatives had been questioned by the Uzbek authorities, imprisoned or even killed for practising their religion. Documents in the case file indicate that criminal proceedings are currently pending in Uzbekistan against seven of the eight adult applicants for attempting to change the constitutional order.

7. The four families left Uzbekistan separately on unspecified dates and eventually reunited in Tajikistan in 1997. They then fled to Afghanistan, Pakistan and Iran. Once in Iran, they initially settled in Zahedan, where they lived for three years from 2001. During that time they applied to the United Nations High Commissioner for Refugees (“the UNHCR”) for refugee status.

8. In August 2005 the applicants went to Tehran and applied to the foreigners’ police. They were settled in a refugee camp and some six months later they were granted refugee status by the UNHCR. While at the refugee camp the applicants requested that a school be set up within the camp for some thirty refugee children, including theirs. The applicants claim that their request was turned down by the Iranian authorities and they were threatened with deportation to Uzbekistan. Consequently, the applicants fled to Turkey on 21 September 2007.

9. Upon their arrival in Turkey the applicants applied to the UNHCR office in Van. On 5 January 2008 all the applicants (except Fatima Rahmanov and Zehra Rahmanov, who were not yet born) were given UNHCR refugee certificates. The applicants also applied to the Turkish authorities, which issued each of them with asylum-seeker cards. The applicants were given temporary residence permits until 24 September 2008 and told to report for signature three times a week. They were given food rations. They rented flats and sent their children to school.

10. The applicants claim that on 12 September 2008 the authorities invited all the Uzbek asylum seekers in Van to the police headquarters for distribution of food rations and school stationery. Some twenty-five Uzbek asylum seekers, who went to collect the items, including the applicants, were placed in detention. Police officers drove the group of asylum seekers to the border that same evening and forcibly deported them to Iran. The Government denied the veracity of the claim that the applicants had been tricked into going to the police headquarters, but they confirmed that the applicants had been deported to Iran on the same day. According to a document signed by two police officers and one military officer, submitted by the Government, twenty-nine Uzbek and Afghan nationals, including the applicants, were deported on 12 September 2008.

11. A week later the applicants re-entered Turkey illegally. They went back to Van and requested legal advice from the Van Bar Association, which, along with two non-governmental organisations (“NGOs”), published a report on 28 September 2008 regarding the applicants’ removal.

12. On 11 October 2008 police officers collected the applicants from their homes and took them to the police headquarters. The same evening, the applicants were deported to Iran once again.

13. According to the applicants’ submissions they had to walk between villages close to the Iranian-Turkish border for about ten days in winter conditions. They subsequently asked for help from the Iranian gendarmerie, who detained them for two days before deporting them back to Turkey.

14. The applicants’ deportations were brought to the attention of the national and international public through press releases from various NGOs and the UNHCR. Likewise, a Turkish parliamentarian issued a press release within the Parliament and criticised the removal of the applicants as well as the existing refugee protection system in Turkey.

15. On an unspecified date the applicants’ representative sent letters to, inter alia, the Human Rights Commission of the Parliament of Turkey, the Human Rights Commission of the Van Governor’s office and the Ministry of the Interior.

16. On 26 November 2008 the head of the Human Rights Commission of the Parliament of Turkey replied to the applicants’ representative that the Ministry of the Interior had informed the Parliament, in a letter dated 11 November 2008, that the applicants had been deported to Iran, a safe third country, in compliance with the legislation in force.

17. In his reply dated 22 April 2009, in his capacity as head of the Human Rights Commission of the Van Governor’s office, the deputy Governor of Van informed the applicants’ representative that the applicants had been deported to Iran in compliance with the legislation in force and that Iran was a safe third country where the applicants had lived between 2001 and 2007.

II. RELEVANT DOMESTIC LAW AND PRACTICE

18. A description of the relevant domestic law and practice at the material time can be found in Abdolkhani and Karimnia v. Turkey (no. 30471/08, §§ 29-43, ECHR2009-... (extracts)).

THE LAW

I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION

19. The applicants complained that their repeated summary deportation to Iran without a deportation order and, in the case of their first removal, whilst they had valid residence permits, had violated their rights guaranteed in Articles 3 and 13 of the Convention.

20. The Court considers that the applicants’ aforementioned complaints should be examined from the standpoint of Article 3 alone, which reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. Admissibility

21. The Government submitted that the applicants could and should have applied to the administrative courts in accordance with Article 125 of the Constitution. They argued that, under Turkish law, foreigners who are to be deported may apply to the administrative courts requesting the suspension of the deportation proceedings as well as the annulment of the administrative decisions. If the courts accept their request for a stay of execution, the administrative authorities suspend the deportation proceedings. The Government concluded that the applicants had failed to exhaust the domestic remedies available to them, within the meaning of Article 35 § 1 of the Convention.

22. The applicants maintained in reply that they had not been notified of the decision to deport them prior to their expulsion. They further contended that, even if they had been served with deportation orders, application to the administrative courts for the annulment of a deportation decision did not automatically have a suspensive effect and therefore did not constitute an effective remedy.

23. The Court reiterates that it has already examined and dismissed an identical objection by the respondent Government in the case of Abdolkhani and Karimnia (cited above, §§ 56-59). The Court finds no particular circumstances in the instant case which would require it to depart from this jurisprudence. The Court accordingly rejects the Government’s objections.

24. On the other hand, the Court observes that the applicants’ first removal to Iran took place on 12 September 2008. In the absence of an effective remedy whereby the applicants could challenge the deportation measure taken against them, the Court finds that the applicants’ complaints in so far as they concern their removal of 12 September 2008 were introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

25. The Court notes that the applicants’ complaints in so far as they concern the circumstances of their removal of 11 October 2008 are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

26. The Government submitted that the applicants were former members of an organisation called the Islamic Movement of Uzbekistan, which was listed as a terrorist organisation by the European Union and the United States of America. The decision to deport them was taken with a view to protecting public safety and national security. The Government further maintained that on 12 September 2008 the applicants had been deported in accordance with the domestic law to a safe third country, where they had lived for seven years before arriving in Turkey. However, they re-entered Turkish territory illegally and were deported again on 11 October 2008.

27. The applicants submitted that they had been deported twice without being served with deportation orders and that their deportations had been illegal under the domestic law. They further contended that the Turkish authorities had not obtained any guarantee from the Iranian authorities that they would be admitted to Iran. They were simply removed to Iranian territory by Turkish police officers, rather than handed over to the Iranian authorities. Moreover, the climate in that region of Iran was cold and snowy, and they had had nowhere to stay. The applicants submitted that on both occasions they had experienced fear for their lives and despair‑feelings which attained the threshold of torture, inhuman or degrading treatment.

28. The Court reiterates at the outset that in its partial decision in the present case, rendered on 24 August 2010, it declared the applicants’ complaint that they had risked deportation from Iran to Uzbekistan manifestly ill-founded, as the applicants were refugees recognised by the UNHCR and had lived in Iran prior to their arrival in Turkey. The Court notes that there is no dispute between the parties that the applicants in the present case were deported from Turkey to Iran twice: on 12 September and 11 October 2008. The Court has however declared the applicants’ complaints in so far as they concern the circumstances of their removal on 12 September 2008 inadmissible as they were introduced out of time (see paragraph 24 above). Therefore, the Court’s examination will be limited to ascertaining whether the circumstances in which the applicants were deported from Turkey to Iran on 11 October 2008 constituted a violation of Article 3 of the Convention.

29. The Court reiterates in this connection that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 of the Convention. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000‑XI).

30. Treatment has been held by the Court to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000‑IV). Treatment has been considered “degrading” when it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance or driving them to act against their will or conscience (see Jalloh v. Germany [GC], no. 54810/00, § 68, ECHR 2006‑IX). In this connection, the question whether such treatment was intended to humiliate or debase the victim is a factor to be taken into account, although the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (see Peers v. Greece, no. 28524/95, §§ 67, 68 and 74, ECHR 2001-III, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI).

31. Turning to the particular circumstances of the present case, the Court notes that the applicants were recognised as refugees by the UNHCR both in Iran and in Turkey, and that at the time of their first removal on 12 September 2008 they had valid residence permits in Turkey.

32. The Court further notes that the Government were explicitly requested to make submissions as to whether Iran had guaranteed admission of the applicants prior to their deportation; whether a deportation order had been issued for their deportation; and whether the applicants had been notified of such a deportation order. They were also asked to provide copies of the deportation order and notification form for the removal, but they failed to do so. The Government failed to respond to the Court’s aforementioned questions and there are no documents in the case file to show that a formal deportation order had been communicated to the applicants. Nor is there any proof that on 11 October 2008 the applicants were handed over to the Iranian authorities or that the latter guaranteed their admission to Iran. All of the above leads the Court to conclude that the applicants – refugees recognised by the UNHCR – were illegally deported to Iran, a non-member State of the Council of Europe, in the absence of a legal procedure providing safeguards against unlawful deportation, and without a guarantee from the Iranian authorities that the applicants would be admitted to Iran. The Court is particularly struck by the fact that the applicants’ removal on 11 October 2008 was not even officially recorded by the Turkish authorities. In this connection, the Court reiterates the absolute nature of Article 3 of the Convention. The fact that the national authorities considered some of the applicants to be dangerous for national security could not justify their removal in such circumstances (compare with, mutatis mutandis, Saadi v. Italy [GC], no. 37201/06, §§ 138-39, ECHR 2008).

33. Besides, the Court observes that twelve of the nineteen applicants were minors at the time of the events. The oldest of the children was fifteen years old in 2008 and two applicants were born a few months before the first deportation to Iran (see paragraph 4 above). The applicants were forcibly removed from Turkey and it appears that the authorities’ acts were premeditated and carried out without respect for either the applicants’ status as refugees, or for the personal circumstances of the applicants, most of whom were children who had a stable life in Turkey. The Court considers that the circumstances up until the time of their removal must have caused the adults feelings of despair and fear, as they were unable to take any step to prevent their removal in the absence of procedural safeguards and were being sent to an unknown area with their young children and babies.

34. Moreover, the applicants submitted that they had to spend approximately twelve days in Iran, in winter conditions and without a place to stay and the Government did not challenge the veracity of these submissions.

35. Bearing in mind the manner in which the applicants’ removal was carried out and taking into account the young age of the majority of them, the Court concludes that the applicants’ suffering must have been severe enough to be categorised as inhuman treatment within the meaning of Article 3.

There has accordingly been a violation of Article 3 of the Convention.

II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION

36. The applicants complained under Article 5 §§ 1, 2 and 4 of the Convention that their detention by the police prior to their removal on 12 September and 11 October 2008 had been unlawful, and that they had not been informed of the reasons for their deprivation of liberty in the course of their deportations and had no means of challenging its lawfulness.

A. As regards the applicants’ alleged deprivation of liberty on 12 September 2008

37. The Court observes that the alleged violations of Article 5 §§ 1, 2 and 4 of the Convention occurred on 12 September 2008, whereas the application was lodged with the Court on 10 April 2009, more than six months later.

38. It follows that the applicants’ complaints under Article 5 §§ 1, 2 and 4, in so far as they concern the events of 12 September 2008, have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see M.B. and Others v. Turkey, no. 36009/08, §§ 50 and 51, 15 June 2010).

B. As regards the applicants’ alleged deprivation of liberty on 11 October 2008

1. Admissibility

39. The Court notes that this part of the application is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

2. Alleged violation of Article 5 § 1 of the Convention

40. The Government submitted that the applicants had been deported on 11 October 2008 but that they had never been deprived of their liberty.

41. The applicants maintained their allegation that they had been deprived of their liberty on 11 October 2008.

42. The Court reiterates that it has already examined the same grievance in the case of Abdolkhani and Karimnia (cited above, §§ 125-35), in which it found that in the absence of clear legal provisions establishing the procedure for ordering detention with a view to deportation, the applicants’ detention had not been “lawful” for the purposes of Article 5 of the Convention.

43. In the instant case, the Court observes that it is not in dispute between the parties that the applicants were deported on 11 October 2008. Given that the applicants had to be detained by the national authorities in order to be removed to Iran, there are no particular circumstances which would require it to depart from its findings in the above-mentioned judgment. The fact that the applicants’ detention lasted for a brief period has no impact on its “unlawful” nature.

There has therefore been a violation of Article 5 § 1 of the Convention.

3. Alleged violation of Article 5 § 2 of the Convention

44. The Government did not submit any observations on this point.

45. The applicants reiterated their allegations.

46. The Court notes that the Government were explicitly requested to make submissions as to whether the applicants had been informed of the reasons for their detention and to provide the relevant documents in support of their response, but failed to do so. In the absence of a reply from the Government, the Court is led to conclude that the reasons for the applicants’ detention on 11 October 2008 were never communicated to them by the national authorities.

There has therefore been a violation of Article 5 § 2 of the Convention.

4. Alleged violation of Article 5 § 4 of the Convention

47. The Government did not submit any observations on this point.

48. The applicants reiterated their allegations.

49. The Court observes that the applicants were detained for a few hours before their removal to Iran on 11 October 2008. In the light of its case-law, according to which Article 5 § 4 does not deal with remedies which may serve to review the lawfulness of a short-term detention that has already ended, the Court does not find it necessary to determine the merits of the applicants’ complaints under Article 5 § 4 of the Convention (see M.B. and Others, cited above, § 45, and Slivenko v. Latvia [GC], no. 48321/99, §§ 158-159, ECHR 2003‑X).

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

50. 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. Pecuniary damage

51. The applicants claimed EUR 3,806.79 (euros) in respect of pecuniary damage. They alleged that the police had confiscated all their personal belongings when they had been arrested and had never returned their money and their mobile phones. They further submitted that they had had to pay a ransom to people smugglers when they were in Iran.

52. The Government contested those claims.

53. Since it has not been established that the applicants were in possession of the aforementioned items when they were detained or that they actually made any payment to people smugglers, the Court rejects this claim.

B. Non-pecuniary damage

54. The applicants claimed a total of EUR 621,000 in respect of non‑pecuniary damage.

55. The Government submitted that the applicants’ claims were unsubstantiated.

56. The Court considers that the applicants must have suffered non‑pecuniary damage which cannot be compensated for solely by the finding of violations. Having regard to equitable considerations, the Court awards the applicants EUR 10,000 each in respect of non-pecuniary damage.

C. Costs and expenses

57. The applicants also claimed EUR 6,734.84 for the costs and expenses incurred before the Court. In this connection, they submitted a timesheet showing that their legal representative had carried out sixty-four hours’ legal work, an agreement that they had concluded with their representative, and invoices for postal, stationery, translation and phone expenses.

58. The Government contested this claim, noting that only costs actually incurred could be reimbursed.

59. 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, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicants the sum of EUR 3,350 jointly for the proceedings before the Court. From this sum should be deducted the EUR 850 granted by way of legal aid under the Council of Europe’s legal-aid scheme.

D. Default interest

60. The Court considers it appropriate that the default interest rate 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

1. Declares the complaints concerning the applicants’ deportation on 11 October 2008, the alleged unlawfulness of their detention on 11 October 2008, the failure of the authorities to inform the applicants of the reasons for their detention and the alleged lack of a remedy whereby they could challenge the lawfulness of their detention, in so far as they concern their detention on 11 October 2008, admissible, and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 3 of the Convention;

3. Holds that there has been a violation of Article 5 § 1 of the Convention;

4. Holds that there has been a violation of Article 5 § 2 of the Convention;

5. Holds that there is no need to examine the complaint under Article 5 § 4 of the Convention;

6. Holds

(a) that the respondent State is to pay the applicants, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 10,000 (ten thousand euros) each, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,350 (three thousand three hundred and fifty euros), jointly in respect of costs and expenses, minus the EUR 850 (eight hundred and fifty euros), granted by way of legal aid, plus any tax that may be chargeable to the applicants;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7. Dismisses the remainder of the applicants’ claim for just satisfaction.

Done in English, and notified in writing on 3 December 2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Stanley NaismithGuido Raimondi
RegistrarPresident

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