SECOND SECTION
DECISION
Application no. 14877/11
Mansour Edin KESHMIRI
against Turkey
The European Court of Human Rights (Second Section), sitting on 12 March 2013 as a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
Dragoljub Popović,
Işıl Karakaş,
Nebojša Vučinić,
Paulo Pinto de Albuquerque, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 5 November 2010,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Mansour Edin Keshmiri, is an Iranian national, who was born in 1958 and lives in Kırklareli. He was represented before the Court by Ms Sinem Uludağ, a lawyer practising in Istanbul.
A. The circumstances of the case
On an unspecified date the applicant, a former member of the People’s Mojahedin Organisation of Iran (PMOI), arrived in Turkey on a false passport.
On 1 June 2008 he was arrested by the Turkish security forces while attempting to leave for Greece on a false passport.
On 1 August 2008 the applicant was transferred to the city of Van in eastern Turkey, apparently with a view to his deportation to Iran. On the same day he applied to the Court to stop his deportation (application no. 36370/08). The President of the Chamber to which the case was allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Turkey, under Rule 39 of the Rules of Court, that the applicant should not be deported to Iran until further notice.
On application of the interim measure under Rule 39 of the Rules of Court, the applicant was transferred to the Kırklareli Foreigners’ Removal Centre.
The applicant submitted that on 15 May 2010, during his detention in the Kırklareli Foreigners’ Removal Centre, he had felt a sharp pain in his right eye and had suddenly lost his sight. He claimed that between 15 and 24 May 2010 he had not been taken to a doctor or provided with the requisite health care despite repeated requests for treatment; however, he did not submit any documentary evidence of this to the Court.
On 24 May 2010 the applicant was escorted to the Kırklareli State Hospital. The applicant submitted that the doctors had informed him that he might permanently lose his sight and had asked the police officers who had escorted him there to take him to the Trakya University Hospital immediately.
On 25 and 26 May 2010 the applicant was examined by doctors at the Trakya University Hospital. An operation was scheduled for 1 June 2010.
On 26 May 2010 the applicant was released from the Kırklareli Foreigners’ Removal Centre and granted a residence permit for five months.
On 1 June 2010 the applicant went to the hospital for his operation but he was allegedly denied treatment on the grounds that he could not pay the costs of the operation himself and was not eligible for welfare assistance in this regard. The applicant explained that he was ineligible for such benefits because his residence permit was only valid for five months. He submitted, referring to a document obtained from the Ankara office of the United Nations High Commissioner for Refugees (UNHCR), that only persons who had residence permits valid for six months or more were eligible to have access to free health care. The applicant telephoned the authorities in charge of the Foreigners’ Removal Centre to enquire about whether they might be able to assist him in this regard but his request was refused. He then contacted his representative who informed the UNHCR about the applicant’s situation.
On 2 June 2010 the operation was carried out as the UNHCR had agreed to cover the applicant’s medical costs.
B. Relevant domestic law
Under section 13 of the Administrative Procedure Act (Law no. 2577 of 6 January 1982), persons who have suffered damage on account of a wrongful act by a State authority may bring a claim for compensation against the body in question within a year from the date on which they learned of the act in question and, in any event, within five years from the date the act was committed.
C. Procedure before the Court
On 22 April 2010 the applicant lodged a second application with the Court (application no. 22426/10) alleging a violation of Article 5 §§ 1 and 4 of the Convention. In a judgment dated 17 January 2012 the Court found that the applicant’s rights under these provisions had been violated (Keshmiri v. Turkey (no. 2), §§ 35 and 41, 17 January 2012).
During the course of those proceedings, in her submissions dated 5 November 2010, the applicant’s representative made further complaints on behalf of the applicant, alleging a violation of Article 3 on account of the authorities’ reluctance to provide him with medical assistance, and a violation of Article 5 §§ 2 and 5 and Article 13 on account of his detention.
Those complaints were assessed as a separate application and were registered under application no. 14877/11 (the present application).
On 7 April 2011 the Registry of the Court requested the applicant’s representative to submit a complete application form in relation to the aforementioned complaints together with supporting documentary evidence.
On 7 July 2011 she submitted an application form, in which she maintained that the applicant’s right enshrined in Article 3 of the Convention had been violated because the authorities had failed to provide him with medical assistance. She further stated that the applicant had not used any remedies under domestic law because the domestic authorities had refused to recognise that he had been deprived of his liberty. The applicant’s representative requested that the respondent Government be notified of the application in accordance with Rule 40 of the Rules of Court and that the case be given priority under Rule 41.
COMPLAINTS
In his submissions dated 5 November 2010, the applicant complained under Article 5 §§ 2 and 5 and Article 13 of the Convention that he had not been informed of the reasons for his detention and thus had been deprived of the opportunity to claim compensation for his unlawful detention.
In those submissions dated 5 November 2010 and in his application form of 7 July 2011, the applicant complained under Article 3 of the Convention that the authorities had failed to provide prompt medical treatment in response to the medical emergency he had encountered during his detention and that he should have been given access to free health care.
THE LAW
1. In his submissions dated 5 November 2010 the applicant submitted under Article 5 §§ 2 and 4 and Article 13 of the Convention that he had not been informed of the reasons for his detention and that therefore there was no remedy available to him under domestic law whereby he could claim compensation for his unlawful detention.
The Court observes that the applicant did not raise these allegations in the first application he lodged with the Court, which gave rise to the judgment of Keshmiri (no. 2), cited above, in which the Court found a violation of Article 5 §§ 1 and 4 of the Convention. The Court further observes that when the applicant raised these allegations he did not submit any supporting documentary evidence. What is more, the applicant did not maintain the allegations in his application form submitted to the Court on 7 July 2011 within the context of the present application. Therefore, the Court considers that the applicant did not have the intention to pursue these complaints before the Court. It therefore concludes that this part of the application should be struck out of the list.
2. The applicant complained under Article 3 of the Convention that the authorities had failed to provide prompt medical care in response to the medical emergency he had encountered during his detention and that he should have had access to free health care.
The Court observes at the outset that the applicant raised his allegations after he was released from detention and after he received the medical treatment he needed. The Court further notes that he did not claim before the Court that he had been unable to contact his representative, or that he had had no access to the outside world in general while in detention. Furthermore, he failed to provide the Court with any documentary evidence to show that he had actually made requests for medical treatment between 15 and 24 May 2010 or that the alleged damage had actually occurred.
In the circumstances of the case, the Court considers that the domestic courts would be in the best position to examine whether the applicant requested medical treatment in detention, whether the authorities’ alleged refusal to provide him with free health care was unlawful, and whether he sustained any damage as a result of acts or omissions on the part of the authorities. The Court is therefore of the opinion that, as the applicant is no longer being held in the detention facility where he alleges damage was caused to his health, a claim for damages under section 13 of the Administrative Procedure Act is capable of providing redress in respect of his complaints and offers reasonable prospects of success (see Buzychkin v Russia, no. 68337/01, 14 October 2008).
Moreover, the Court cannot accept the applicant’s argument that there was no effective remedy available under Turkish law to address his complaints under Article 3 since the national authorities did not recognise that he had been deprived of his liberty. This argument is not relevant in relation to a complaint under Article 3 of the Convention. In these circumstances, the Court concludes that the applicant has failed to show why he should be dispensed from availing himself of the remedy before the domestic administrative courts. In conclusion, the Court finds that the applicant failed to exhaust domestic remedies.
The Court accordingly dismisses the applicant’s requests under Rules 40 and 41 of the Rules of Court and rejects this part of the application under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Decides to strike part of the application out of its list of cases in so far as it relates to the complaints under Article 5 §§ 2 and 5 and Article 13 of the Convention in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Stanley NaismithGuido Raimondi
RegistrarPresident
Full & Egal Universal Law Academy