SECOND SECTION
Application no. 72710/11
Zalim YARASHONEN
against Turkey
lodged on 28 October 2011
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Zalim Yarashonen, is a Russian national who was born in Chechnya and lives in Istanbul. He is represented before the Court by Ms S. Yılmaz, a lawyer practising in Istanbul.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a Russian citizen of Chechen origin. He left his country and went to Turkey in fear of the ongoing armed conflict. He alleges that his father and brother were killed and he would have faced the same end if he had stayed in his country.
On 25 October 2010 the applicant was arrested. After the arrest he was kept in detention at the airport police facility for 7 days without any judicial order to that effect.
On 1 November 2010 he was transferred to the Kumkapı Foreigners’ Removal Centre. He applied for asylum while in detention.
On 13 April 2011 the applicant informed his lawyer during an interview that he had caught influenza while in detention.
On 21 April 2011 the applicant’s lawyer lodged an application with the Ministry of the Interior requesting the applicant’s immediate release and claiming that his detention was not lawful. In his application, the lawyer renewed the applicant’s request for asylum. Referring to the applicant’s previous accounts of his illness, he also asked the authorities to send the applicant to a hospital for medical care. He received no response to the application and the applicant was not referred to a hospital.
As regards the conditions of detention at the Kumkapı Foreigners’ Removal Centre, the applicant submitted that he had not been offered the opportunity for any outdoor exercise while in detention. He further contended that the cells, which measured approximately 30-35 square metres, had been overcrowded, and that because of overcrowding the hygiene conditions at the centre had been poor. The applicant maintained that he had fallen ill as a result of those conditions of detention.
On 29 April 2011 the applicant was released from detention. He was given an identification document for asylum seekers valid until 13 May 2011.
On 30 April 2011, immediately after his release, the applicant underwent a medical examination. He was diagnosed with a lower respiratory tract infection. From 9 June to 15 June 2011, the applicant received medical treatment in an Istanbul hospital for his illness, which was categorised as pneumonia.
COMPLAINTS
The applicant complained under Article 3 of the Convention about the conditions of detention at the Kumkapı Foreigners’ Removal Centre, in particular, about a lack of outdoor exercise, overcrowding and related poor conditions of hygiene. The applicant further complained, under the same head, that he had been denied medical assistance while in detention, despite his requests.
The applicant contended under Article 13 of the Convention that he did not have an effective domestic remedy whereby he could raise his allegations under Article 3 of the Convention.
The applicant alleged under Article 5 § 1 of the Convention that he had been unlawfully deprived of his liberty in the transit zone of Istanbul International Airport and subsequently at the Kumkapı Foreigners’ Removal Centre as there was no legal basis in domestic law for his detention.
The applicant further contended, under Article 5 § 2 of the Convention, that he had not been informed of the reasons for his detention. Nor had he been notified of any decision taken in his case.
He also contended, under Article 5 § 3 of the Convention, that he had not been brought before a judge or any other authority authorised by law to decide on his detention.
The applicant maintained under Article 5 § 4 of the Convention that he had not been able to challenge the lawfulness of his detention.
The applicant complained under Article 5 § 5 of the Convention that he did not have a remedy whereby he could claim compensation for his unlawful detention.
QUESTIONS TO THE PARTIES
1. Is there a domestic remedy under Turkish law whereby the applicant could have complained about the conditions of detention at the Kumkapı Foreigners’ Removal Centre? If so, did the applicant exhaust all effective domestic remedies, as required by Article 35 § 1 of the Convention?
The Government are invited to submit decisions by the administrative and judicial authorities in response to complaints regarding conditions of detention by detainees in comparable situations.
2. Were the conditions of the applicant’s detention at the Kumkapı Foreigners’ Removal Centre compatible with Article 3 of the Convention?
The Government are invited to submit information and supporting documents on the conditions at the Kumkapı Foreigners’ Removal Centre, in particular the capacity of the rooms and the number of occupants held in them between 1 November 2010 and 29 April 2011, the opportunities for fresh air and daily exercise, and the hygiene conditions.
3. Was medical assistance available to the applicant when he was detained at the Kumkapı Foreigners’ Removal Centre? Did the Government meet their obligation to ensure that this applicant’s health and well-being were adequately secured by, among other things, providing him with the requisite medical assistance (see McGlinchey and Others v. the United Kingdom, no. 50390/99, § 46, ECHR 2003‑V), as required by Article 3 of the Convention?
4. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 of the Convention, as required by Article 13 of the Convention?
5. Did the applicant’s detention comply with the requirements of Article 5 § 1 of the Convention?
6. Was the applicant informed promptly of the reasons for his detention, as required by Article 5 § 2 of the Convention?
7. Did the applicant have at his disposal a remedy by which he could challenge the lawfulness of his deprivation of liberty, as required by Article 5 § 4 of the Convention?
The Government are requested to submit judicial decisions in response to requests for release by detainees in comparable situations.
8. Did the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 § 1, as required by Article 5 § 5 of the Convention?
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