Communicated on 27 May 2015
SECOND SECTION
Application no. 6144/15
Gülbahar RAHMANOVA
against Turkey
lodged on 2 February 2015
STATEMENT OF FACTS
The applicant, Mr Gülbahar Rahmanova, is a Turkmen national, who was born in 1982. She is currently detained at the Kumkapı Foreigners’ Removal Centre, in Istanbul. She is represented before the Court by Ms Z. Rişvan, a lawyer practising in Istanbul.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 25 March 2014 the applicant arrived in Turkey.
On 10 December 2014 the police conducted a search at the flat where the applicant stayed on the basis of a search warrant issued by the Istanbul Magistrates’ Court. The applicant was arrested as she did not have a valid visa. She was taken to the Kumkapı police station where she was held for two days.
On 12 December 2014 a blood test was carried out and the applicant was found to have suffered from hepatitis C. She was then transferred to the Kumkapı Foreigners’ Removal Centre as she did not have a valid visa and suffering from an illness.
On 13 December 2014 the deputy governor of Istanbul ordered the applicant’s deportation from Turkey in accordance with section 54(1)(d) and (e) of the Law on Foreigners and International Protection (Law no. 6458 – see Relevant domestic law, below). In the same decision, the deputy governor also ordered the applicant’s administrative detention pending deportation for a period of one month as he considered that the applicant posed a threat to national security and that she presented a risk of absconding.
On an unspecified date the applicant lodged an objection against the detention order with the Istanbul Magistrates’ Court.
On 26 December 2014 the Istanbul Magistrates’ Court rejected the applicant’s objection, holding that the detention order which had been taken in accordance with sections 54 and 57 of Law no. 6458 was in accordance with the law.
On 6 January 2015 the applicant lodged a further petition with the Istanbul Magistrates’ Court, requesting to be released. In her petition, the applicant claimed that the decision of 13 December 2014 had not been notified to her and that it had been rendered three days after her arrest, in breach of section 57(1) of Law no. 6458, according to which a deportation decision had to be taken within forty-eight hours after her arrest. The applicant also claimed that although the initial one-month period had ended she was still being detained without a valid administrative decision.
On 8 January 2014 the Magistrates’ Court once again rejected the applicant’s request, noting that it had already rendered a decision dismissing the applicant’s request on 26 December 2014.
Meanwhile, on 16 December 2014 the applicant lodged an action with the Istanbul Administrative Court for the annulment of the deportation and detention orders taken in her respect.
On 24 December 2014 the Istanbul Administrative Court held that it did not have jurisdiction to examine the applicant’s request regarding the decision to detain her. The court noted that the applicant could lodge a new action within 30 days with a new petition challenging only the deportation order.
On 29 December 2014 the applicant filed a new petition with the Istanbul Administrative Court. In her petition, the applicant contended that the administrative authorities had failed to assess the necessity of her deportation taking into account her individual circumstances and to notify her of the deportation order. The applicant also requested the court to order a stay of execution of the deportation decision taken in her respect.
On 5 January 2015 the Istanbul Administrative Court ruled that it would render a decision regarding the applicant’s request for an interim measure after obtaining the defence submissions of the Istanbul governor’s office.
On 9 January 2015 the applicant lodged an individual application with the Constitutional Court. In her application, the applicant alleged that her conditions of detention constituted ill-treatment, that she should receive medical care as she suffered from hepatitis C, that her detention was unlawful and that she had not been informed of the reasons for her detention and given the opportunity to challenge the lawfulness of her detention. She also submitted that there would be a breach of her right to private and family life if she were deported, since in that event she would be separated from her husband and children. The applicant also requested the Constitutional Court to order her release from the removal centre and to suspend the execution of the deportation order as an interim measure.
On 19 January 2015 the Constitutional Court rejected the applicant’s application for the interim measure. As regards the applicant’s request for release, the court noted that the applicant had failed to lay the basis of an arguable claim that there was an immediate risk to her life or her physical or moral integrity. The court considered that the applicant’s allegations such as the problems of hygiene and the lack of fresh air at the centre did not constitute an existing and personal risk for her. The Constitutional Court noted, however, that the State authorities were responsible for providing basic and urgent health services to the persons held in removal centres. As to the applicant’s request for the suspension of the execution of the deportation order, the Constitutional Court first noted that the remedy before the administrative courts was an effective remedy as, according to Law no. 6458, an application to the administrative courts for annulment of a deportation order had an automatic suspensive effect. The court nevertheless examined the merits of the applicant’s request for an interim measure and held that the applicant would not face a risk of death or ill-treatment in case of her removal to Turkmenistan. As a result, the Constitutional Court rejected the applicant’s request.
According to the applicant, the Kumkapı Removal Centre is severely overcrowded. The centre has an overall capacity of 300 people, but accommodates around 600 people. The overcrowding of the centre leads to problems of hygiene. The building is infested with insects and the applicant was bitten by insects and bedbugs. On an unspecified date the applicant’s room was disinfected. Yet, the officers did not let the detainees leave the room during the process of disinfection. The centre is not sufficiently ventilated and that the applicant is exposed to tobacco smoke as other detainees smoke indoors. The quality and quantity of the food provided is also poor. The applicant further contends that she suffered from hepatitis C and the conditions of detention aggravated her illness. Besides, she filed a petition on 29 January 2015 asking the national authorities to transfer her to a hospital for her treatment. She received no reply to her petition and was not provided with medical care.
B. Relevant domestic law
1. 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 decisions 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 within 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 within 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 reassessed regularly every month by the governor’s office. When necessary, reassessment 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 at 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 with 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 in administrative detention shall be accommodated in removal centres.”
PROCEDURE BEFORE THE COURT
On 2 February 2015, when the application was lodged, the applicant’s representative requested that the Court adopt an interim measure, under Rule 39 of the Rules of Court, for the applicant’s release from the Kumkapı Foreigners’ Removal Centre.
On 23 January 2015 the Acting President of the Section to which the case had been allocated decided not to indicate to the Government of Turkey, under Rule 39 of the Rules of Court, the interim measure that the applicant was seeking. The Acting President however decided to give priority to the present applicant under Rule 41 of the Rules of Court.
COMPLAINTS
The applicant complains under Article 3 of the Convention that the conditions at the Kumkapı Removal Centre did not comply with the requirements of Article 3 of the Convention, referring to the Court’s judgments in the cases of Yarashonen v. Turkey (no. 72710/11, 24 June 2014); Musaev v. Turkey, (no. 72754/11, 21 October 2014), and Aliev v. Turkey, no. 30518/11, 21 October 2014), the reports of the Council of Europe Commissioner for Human Rights, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the United Nations Special Rapporteur on the Human Rights of Migrants and the Human Rights Institution of Turkey. She further complains under the same head about the national authorities’ failure to provide her with medical care despite the fact that she suffers from hepatitis C.
The applicant further contends under Article 5 § 2 of the Convention that she was not informed of the reasons for her detention at the removal centre.
The applicant maintains under Article 5 § 4 of the Convention that there was no effective remedy in Turkish domestic law whereby she could challenge the lawfulness of her detention. The applicant contends, in particular, that the Magistrates’ Court did not conduct a meaningful examination on the merits of the applicant’s objection within the time‑limit set in Law no. 6458.
The applicant complains under Article 13 of the Convention that she did not have an effective domestic remedy whereby she could raise her allegations under Article 3 of the Convention.
QUESTIONS TO THE PARTIES
1. Has the applicant 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 and 5 of the Convention? What is the relevance of the decision of the Constitutional Court dated 19 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 applicant’s complaints under Articles 3 and 5 of the Convention?
2. Were the conditions of the applicant’s detention at the Kumkapı Foreigners’ Removal Centre compatible with Article 3 of the Convention?
3. Has the applicant received sufficient medical care during her detention at the Kumkapı Foreigners’ Removal Centre? Have the Government met their obligation to ensure that the applicant’s health and well-being are being adequately secured by, among other things, providing her with the requisite medical assistance as required by Article 3 of the Convention?
4. Did the applicant have at her disposal an effective domestic remedy for her complaints under Article 3 of the Convention, as required by Article 13 of the Convention?
5. Was the applicant informed promptly of the reasons for her detention as required by Article 5 § 2 of the Convention?
6. Did the applicant have at her disposal a remedy by which she could challenge the lawfulness of her deprivation of liberty, as required by Article 5 § 4 of the Convention?
The Government are invited to submit information and supporting documents and other materials (photographs, video footage etc.) on the current conditions at the Kumkapı Foreigners’ Removal Centre, in particular the size and the capacity of the room/rooms where the applicant is being held, the number of occupants held therein since 12 December 2014, the opportunities for access to fresh air and the hygiene conditions.
The Government are also invited to submit a copy of the documents regarding medical assistance provided to the applicant, if applicable, and all other documents relating to the applicant’s detention.
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