Published on 23 September 2024
SECOND SECTION
Application no. 11741/20
M.N. and Others
against Türkiye
lodged on 16 January 2020
communicated on 5 September 2024
SUBJECT MATTER OF THE CASE
The applicants are a family of five Russian nationals from the Republic of Dagestan, consisting of the parents (the first and second applicants) and three children (the third to fifth applicants) who were minors at the material time. They entered Türkiye on 3 November 2014 via regular means and were later apprehended on 5 February 2015 while attempting to cross the border into Syria illegally.
The applicants were placed in administrative detention pending deportation in the Kocaeli Foreigners’ Removal Centre from 7 February to 11 June 2015 and from 12 October to 12 November 2015.
On 27 October 2015 the applicants lodged individual applications with the Constitutional Court to complain, inter alia, of the conditions and unlawfulness of their detention in the Kocaeli Foreigners’ Removal Centre. The Constitutional Court decided on 17 April 2019 that the applicants’ complaints were inadmissible for failure to exhaust the action for a full remedy (tam yargı davası) before the administrative courts, which could provide an effective remedy – in the form of compensation – following release from detention. This decision was duly served upon the applicants on 16 July 2019. Subsequently, the applicants brought actions for a full remedy before the Kocaeli 1st Administrative Court, which dismissed them as having been lodged outside the time-limits provided under domestic law. These rulings were later upheld by the Istanbul Regional Administrative Court.
Relying on Article 3, Article 5 §§ 1 and 4 and Article 13 of the Convention, the applicants complain about the material conditions and unlawfulness of their detention in the Kocaeli Removal Centre as well as the absence of any effective domestic remedies to raise those complaints. They also argue that their administrative detention had been in violation of Article 5 §§ 2 and 5 of the Convention. They finally complain that their rights under Article 1 of Protocol No. 1 were breached as a result of the manner in which the legal costs and expenses were awarded by the Constitutional Court in jointly examined applications.
QUESTIONS TO THE PARTIES
1. Did the applicants duly exhaust the remedies available in domestic law in respect of their complaints under Articles 3 and 5 of the Convention, as required by Article 35 § 1 of the Convention?
2. Were the conditions of the applicants’ detention at the Kocaeli Foreigners’ Removal Centre compatible with Article 3 of the Convention, in particular having regard to the fact that the third, fourth and fifth applicants were all minors at the material time (see, mutatis mutandis, G.B. and Others v. Turkey, no. 4633/15, §§ 99-101, 17 October 2019; M.D. and A.D. v. France, no. 57035/18, § 63, 22 July 2021; and M.H. and Others v. Croatia, nos. 15670/18 and 43115/18, §§ 183-86, 18 November 2021)?
3. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 3 of the Convention, as required by Article 13 of the Convention (see G.B. and Others, cited above, §§ 118-38)? In this connection, is the action for a full remedy (tam yargı davası) before the administrative courts capable of providing redress in respect of the applicants’ complaints under Article 3 of the Convention?
4. Did the applicants’ detention comply with the requirements of Article 5 § 1 of the Convention (see, mutatis mutandis, A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009, and M.H. and Others v. Croatia, cited above, §§ 229-39)? In particular, given that the third, fourth and fifth applicants were all minors at the material time, could the aim pursued by detention have been achieved by less coercive measures (see, inter alia, Rahimi v. Greece, no. 8687/08, §§ 108-110, 5 April 2011, and Nikoghosyan and Others v. Poland, no. 14743/17, § 86, 3 March 2022)?
5. Were the applicants informed promptly of the reasons for their detention, as required by Article 5 § 2 of the Convention (see, among other authorities, Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 115-16, 15 December 2016?
6. 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 (see, for example, A.M. v. France, no. 56324/13, §§ 40-41, 12 July 2016, and G.B. and Others v. Turkey, cited above, §§ 163-69)? In this connection, is the action for a full remedy (tam yargı davası) before the administrative courts capable of providing redress within the meaning of Article 5 § 4 in respect of the applicants’ complaint for the period following their release from detention?
7. 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 (see, for example, Vachev v. Bulgaria, no. 42987/98, § 78, ECHR 2004-VIII (extracts))?
8. (a) Did the applicants have a “legitimate expectation” within the meaning of the Court’s case-law under Article 1 of Protocol No. 1, to obtain a full reimbursement for legal representation costs in applications jointly examined by the Constitutional Court (see Kopecký v. Slovakia [GC], no. 44912/98, § 35, ECHR 2004‑IX)?
(b.) Has there been an interference with the applicants’ peaceful enjoyment of possessions, within the meaning of Article 1 of Protocol No. 1 (see Anheuser-Busch Inc. v. Portugal [GC], no. 73049/01, §§ 62-65, ECHR 2007‑I)? Reference is made to the Constitutional Court’s decision of 17 April 2019, in which it awarded a single lump sum calculated on a pro rata basis for legal representation costs in jointly examined applications. This corresponded to the fixed amount based on the Tariff on Minimum Lawyers’ Fees to be distributed evenly among individuals who were represented by the same lawyer during those proceedings (compare Antürk v. Türkiye (dec.) [Committee], no. 18476/22, §§ 6-13, 27 September 2022).
(c) If so, was that interference in the public interest and in accordance with the conditions provided for by law (see Béláné Nagy v. Hungary [GC], no. 53080/13, §§ 112-13, 13 December 2016)? In particular, was the calculation adopted by the Constitutional Court accessible and foreseeable, given in particular that the annex of the Constitutional Court’s decision differed from the wording of the operative part of the same decision?
(d) Did the interference impose an excessive and individual burden on the applicants (see Broniowski v. Poland [GC], no. 31443/96, §§ 150-51, ECHR 2004-V, and the case-law cited therein)?
(e) Were the applicants provided with procedural guarantees affording them a reasonable opportunity of presenting their case to the domestic courts for the purpose of effectively challenging the measures interfering with their rights guaranteed by Article 1 of Protocol No. 1 (see Lekić v. Slovenia ([GC], no. 36480/07, § 95, 11 December 2018, and the cases cited therein)?
The Government are invited to submit information and supporting documents on the conditions at the Kocaeli Foreigners’ Removal Centre, in particular (i) the opportunities for access to fresh air and daily exercise, (ii) the hygiene conditions, (iii) the sufficiency of food rations and (iv) the family arrangements in place as well as the suitability of the premises with regard to the specific needs of children at the material time.
The parties are requested to submit, within the same time-limit, reports or information documents regarding the conditions of detention at the Kocaeli Foreigners’ Removal Centre from reliable sources.
The Government are also invited to submit sample decisions, delivered in respect of administrative detentions, where the administrative courts have examined – within the context of an action for a full remedy – the merits of complaints lodged by foreigners concerning (i) the material conditions of their detention, (ii) the unlawfulness of their administrative detention, (iii) the absence of any effective remedies to challenge the lawfulness of their detention, and (iv) the lack of prompt information on the reasons for deprivation of liberty. The Government are requested to include in their submissions decisions in which the administrative courts have applied the time‑limit rules for lodging an administrative action flexibly as suggested by the Constitutional Court.
APPENDIX
List of applicants:
No.
Applicant’s Name
Year of birth
Nationality
Place of residence
1.
N.M.
1977
Russian
Kocaeli
2.
A. N
2010
Russian
Kocaeli
3.
K. N.
2008
Russian
Kocaeli
4.
A. N.
2014
Russian
Kocaeli
5.
Z. S.
1987
Russian
Kocaeli