Communicated on 16 April 2018
SECOND SECTION
Applications nos. 60811/15 and 54512/17
Yeldos KUNSHUGAROV against Turkey
and Yeldos KUNSHUGAROV against Turkey
lodged on 9 December 2015 and 28 July 2017 respectively
SUBJECT MATTER OF THE CASE
The applicant is a Kazakhstan national who was born in 1988 and is detained in İzmir prison. The applications mainly concern the threatened expulsion or extradition of the applicant to Kazakhstan, the alleged failure of the administrative and judicial authorities to conduct an adequate examination of his allegations that he would be exposed to a real risk of death or ill‑treatment if removed to Kazakhstan, the alleged unlawfulness and allegedly poor conditions of his detention at the Kumkapı Foreigners’ Removal Centre pending the expulsion proceedings and the alleged failure of the criminal courts to assess adequately his objections against his detention pending his extradition. The applicant has been detained since 4 November 2015. He was first detained within the context of the expulsion proceedings. He is currently detained with a view to his extradition. The applicant relies on Articles 2, 3, 5 and 13 of the Convention
On 18 March 2016 the Constitutional Court issued an interim measure in which it provisionally suspended the expulsion proceedings. On 18 July 2017 the same court rejected the applicant’s request for indication of an interim measure for suspension of his extradition to Kazakhstan. The proceedings concerning both his threatened expulsion and extradition are pending before the Constitutional Court (applications nos. 2016/5266 and 2017/29246).
On 9 December 2015 the applicant requested the Court under Rule 39 of the Rules of Court, inter alia, to prevent the expulsion of the applicant to Kazakhstan. On 10 December 2015 the Court decided that this request was premature as at the material time the expulsion proceedings were pending before the administrative courts.
On 28 July 2017 the applicant requested the Court under Rule 39 of the Rules of Court to prevent his extradition to Kazakhstan. On 31 July 2017 the Court decided not to indicate to the respondent Government, under Rule 39, the measure that the applicant was seeking.
QUESTIONS tO THE PARTIES
1. Is the applicant currently under a threat of expulsion and/or extradition to Kazakhstan?
2.a. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention?
2.b. What is the outcome of the proceedings before the Constitutional Court in applications nos. 2016/5266 and 2017/29246?
3. Would the applicant face a real risk of being subjected to treatment in breach of Articles 2 or 3 of the Convention in the event of his expulsion or extradition to Kazakhstan?
4.a. Did the national administrative and judicial authorities fulfil their obligation to conduct an adequate examination of the applicant’s allegations that he would be exposed to a real risk of death or ill‑treatment if removed to Kazakhstan, as required by Articles 2 and 3 of the Convention (see, mutatis mutandis, Auad v. Bulgaria, no. 46390/10, § 101, 11 October 2011; Babajanov v. Turkey, no. 49867/08, §§ 41-49, 10 May 2016; and F.G. v. Sweden [GC], no. 43611/11, § 127, ECHR 2016)?
4.b. Did the Second Division of the Istanbul Anadolu Assize Court and the Court of Cassation examine whether the terms of the diplomatic assurance provided by the Kazakhstan authorities were sufficient to remove any risk of treatment in breach of Articles 2 and 3 of the Convention before deciding to extradite the applicant to that country? In that respect, what is the relevance of the judgment of the Second Division of the Istanbul Anadolu Assize Court in the extradition proceedings concerning Mr U.C. (judgment of 3 December 2013, no. 2013/69)?
5. Has the applicant had at his disposal an effective domestic remedy for his allegations that he would be exposed to a real risk of treatment in violation of Articles 2 and 3 of the Convention if he were to be extradited or deported, as required by Article 13 of the Convention (see Auad v. Bulgaria, no. 46390/10, §§ 117-123, 11 October 2011)?
6. Has there been a violation of Article 3 of the Convention on account of the conditions of the applicant’s detention at the Kumkapı Foreigners’ Removal Centre?
7. Has there been a violation of Article 5 § 1 of the Convention on account of the applicant’s detention within the context of the expulsion proceedings?
8. Has there been a violation of Article 5 § 2 of the Convention in the present case within the context of the applicant’s detention pending the expulsion proceedings?
9. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention within the context of both expulsion and extradition proceedings, as required by Article 5 § 4 of the Convention?
10. Did the applicant have an effective and enforceable right to compensation for the above-mentioned alleged breaches of Article 5, as required by Article 5 § 5 of the Convention?
The parties are requested to submit a copy of all documents relevant to their replies.
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