Communicated on 8 January 2014
SECOND SECTION
Application no. 81681/12
R.M. against Turkey
lodged on 5 October 2012
STATEMENT OF FACTS
The applicant, Mr. R. M., is an Uzbekistan national, who was born in 1988 and he was detained in Istanbul Maltepe Prison at the time of the lodging of the application. He is represented before the Court by Mr A. Yılmaz, a lawyer practising in Istanbul.
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was the leader of a student group of around fifty people. He attended and organised a number of political activities and demonstrations.
Within the scope of such activities, in 2006 the applicant organised a demonstration with the participation of around three hundred and fifty people in the region of Chircik. Subsequently, the Uzbekistan authorities started an investigation into the applicant’s activities.
On 19 September 2007 the applicant left Uzbekistan in fear of being subjected to ill-treatment or even killed.
On 13 December 2007 the Tashkent Prosecution Office issued an arrest warrant in respect of the applicant.
On an unspecified date the applicant arrived in Turkey.
On 9 September 2009 he was arrested and taken into custody on the basis of a red notice issued by Uzbekistan via Interpol. While in police custody, he signed a document entitled “The questionnaire for arrest and custody and rights of suspects and defendants” containing no information regarding the reasons for his arrest. At the same time, the applicant signed another document entitled “Body search report”. According to this report, the applicant was searched as that was required by Interpol.
On 10 September 2009 the Bakırköy Magistrates’ Court ordered the applicant’s provisional arrest for forty-five days. The court based its decision on Article 16 of the European Convention on Extradition and on the bilateral agreement on extradition between Turkey and Uzbekistan.
On 17 September 2009 the applicant objected to his detention, claiming that he had been arrested before on the same Interpol bulletin and released for lack of sufficient grounds for his detention. The Magistrates’ Court dismissed his objection.
On 17 September 2009 applicant applied for asylum to the UNHCR and to the Ministry of the Interior.
On 15 October 2009 the Turkish authorities received the request for the applicant’s extradition.
On 21 October 2009 the Ministry of Justice sent this request to the Bakırköy Public Prosecutor.
On 23 December 2009 the Ankara office of the UNHCR sent a letter to the Turkish authorities stating that the proceedings on the applicant’s request for asylum were still pending. Therefore, the authorities were advised to grant the applicant subsidiary protection status and refrain from extraditing or deporting him to Uzbekistan pending those proceedings.
On 1 June 2011 the Ministry of the Interior granted the applicant subsidiary protection status and gave him a temporary residence permit to reside in the province of Sakarya. The Ministry also informed the Bakırköy Assize Court of the situation.
On 20 June 2011 although it had been officially informed of the status granted to the applicant, the Bakırköy Assize Court admitted the request for the applicant’s extradition.
On 8 March 2012 the Court of Cassation upheld the judgment of 20 June 2011.
Due to the existence of two contradictory decisions, on the one hand the decision granting the applicant subsidiary protection and on the other hand the decision admitting the request for the extradition of the applicant, the applicant’s representative applied to the Ministry of Justice and requested information as to the outcome of the procedure.
On 4 May 2012 the Ministry of Justice sent a reply to the applicant’s representative, stating that having regard to the applicant’s new status, his extradition was not allowed until the end of the asylum proceedings and that the detention of the applicant must be reviewed accordingly.
Throughout the extradition proceedings, on the basis of the above-mentioned grounds the applicant objected to his detention sixteen times. His requests for release were consistently dismissed and the opinion of the prosecutor regarding the continuation of the applicant’s detention was not communicated to the applicant or his representative.
On 9 May 2012 the applicant was released from detention on the ground that he had been granted subsidiary protection status.
The applicant was then placed in the Foreigners’ Removal Centre and he was kept in this centre for one day.
On 10 May 2012 the applicant was also released from the removal centre on the basis of the residence permit to reside in the province of Sakarya until the end of the asylum proceedings.
COMPLAINTS
The applicant complains that the decisions of the domestic courts allowing his extradition to Uzbekistan violated his rights enshrined under Article 3 of the Convention as his extradition would give rise to a real risk of ill- treatment.
The applicant complains under Article 5 § 1 of the Convention that his detention in prison and his subsequent detention in the removal centre for one day were unlawful and that the length of his detention in prison was excessive.
The applicant contends under Article 5 § 3 of the Convention that he was not brought promptly before a judge or other officer authorised to exercise judicial power.
The applicant alleges under Article 5 § 4 of the Convention that he did not have at his disposal an effective remedy by which he could challenge the lawfulness of his detention in prison.
The applicant maintains under Article 5 § 5 of the Convention that he did not have any domestic remedy whereby he could obtain compensation for the alleged violations of his rights under Article 5 of the Convention.
The applicant finally submits under Article 13 of the Conventions that there were no effective remedies in domestic law in respect of his Convention grievances.
QUESTIONS TO THE PARTIES
1. (a) Would the applicant’s extradition to Uzbekistan give rise to a real risk that he would be subjected to treatment in violation of Article 3 of the Convention?
(b) Did the national authorities subject the applicant’s claims of a risk of ill-treatment to an adequate and effective examination?
(c) What is the relationship between the decision of the Bakırköy Assize Court which was upheld by the Court of Cassation and the decision of the Ministry of the Interior in terms of their legal consequences?
2. Did the applicant have at his disposal an effective domestic remedy for his complaints under Articles 3 of the Convention, as required by Article 13 of the Convention?
The Government are requested to submit a copy of the case-file concerning the extradition proceedings brought against the applicant.
3. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, what was the legal basis for the applicant’s provisional detention between 23 December 2009 and 9 March 2012 and his subsequent detention in the Foreigners’ Removal Centre until 10 March 2012?
The Government are requested to submit a copy of the bilateral agreement between Turkey and Uzbekistan governing the rules of extradition proceedings.
4. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his provisional detention, as required by Article 5 § 4 of the Convention? Furthermore, did the non-communication to the applicant of the written opinion of the public prosecutor regarding the extension of the applicant’s detention entail a breach of the principle of equality of arms?
5. Did the applicant have an effective and enforceable right to compensation in respect of his provisional arrest in alleged contravention of Article 5 § 1, as required by Article 5 § 5 of the Convention?
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