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SECOND
SECTION
CASE OF KURKAEV v. TURKEY
(Application
no. 10424/05)
JUDGMENT
STRASBOURG
19 October
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Kurkaev v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl
Karakaş,
Kristina Pardalos,
Guido
Raimondi, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 28 September 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 10424/05) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Russian national, Mr Ruslan Kurkaev (“the
applicant”), on 21 March 2005.
- The
applicant was represented by Mr H. K. Elban, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent. The Russian Government did not exercise
their right to intervene (Article 36 § 1 of the Convention and
Rule 44 § 1 (b)).
- On
29 September 2009 the Court decided to give notice of the application
to the Government. It also decided to rule on the admissibility and
merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1983 and lives in Istanbul.
- The
facts of the case, as submitted by the parties, may be summarised as
follows.
- The applicant was living in Grozny, Chechnya. Fearing
for his life he left for Azerbaijan in August 2000, from where he
flew to Istanbul on 4 September 2000.
- On
23 June 2004 the applicant and a number of other individuals were
taken into custody by police officers of the Anti-Terrorist Branch of
the Istanbul Security Headquarters, within the framework of the
security measures implemented for the 2004 NATO summit in Istanbul.
- On
25 June 2004 the applicant was transferred to the Foreigners'
Department of the Istanbul Security Headquarters with a view to
deportation. On 29 June 2004 the Istanbul State Security Court issued
a decision of non-prosecution, holding that there was no evidence to
initiate criminal proceedings against the applicant or other
individuals taken into detention in connection with the 2004 NATO
summit.
- The
applicant then continued to be held in the Foreigners' Department of
the Istanbul Security Headquarters under section 23 of Law no. 5683
as an administrative measure pending deportation proceedings.
- On
25 September 2004 the applicant was released and since then has been
living in Istanbul on renewable temporary residence permits.
II. CONDITIONS OF DETENTION
A. The applicant's account
- The
applicant alleged that he had been detained for a period of
ninety-one days in an overcrowded room at the Foreigners' Department
of the Istanbul Security Headquarters, which had no windows, hence no
natural light. According to the applicant it had thirty-six beds for
a number of asylum seekers varying from 100 to 200. Due to the large
number of asylum seekers present in the establishment the applicant,
on numerous occasions, had been forced to sleep on the ground without
sheets or blankets. He had not been allowed to get any fresh air or
exercise throughout his stay. The hygienic conditions were extremely
poor, in particular the showering facilities. There were three
toilets and two showers serving a minimum of one hundred asylum
seekers. The food served was insufficient and was the same every day.
In support of his complaints the applicant presented drawings of the
facility and referred to the reports of the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT), in particular CPT/Inf (2002)8 dated 24 April 2002
and CPT/Inf (2000)17 dated 7 December 2000.
B. The Government's account
- The
Government stated that the applicant had been held in the men's
section of the Foreigners' Department of the Istanbul Security
Headquarters, which measured 220 square metres. There were three
toilets, two showers, twenty bunk beds, a television, two telephones,
two air conditioners and a cafeteria. According to the Government all
the rooms were sufficiently lit and ventilated. They were cleaned
twice a day. Breakfast, lunch and dinner were served every day.
Asylum seekers could be visited by their relatives in the visitors'
room. Those who needed medical help were taken to the local State
hospital and their medical expenses were born by the State.
III. RELEVANT DOMESTIC LAW AND PRACTICE
A. Domestic law and practice concerning asylum
procedures
- A
description of the relevant domestic law and practice concerning
asylum procedures may be found in the case of Abdolkhani and
Karimnia v. Turkey (no. 30471/08, §§ 29-44,
22 September 2009).
B. Relevant CPT reports
- The
relevant paragraphs of the CPT/Inf (2002)8 - Report concerning the
CPT's visit to the Foreigners' Department of the Istanbul Security
Headquarters (referred to as “the holding facility” or
“detention unit” at “Istanbul Police Headquarters”)
from 2-14 September 2001 are as follows:
“63. The holding facility at İstanbul
Police Headquarters was not overcrowded at the time of the visit (35
persons). Further, some limited renovation work (e.g. painting of
walls) had been carried out shortly before the visit, and all the
detainees had a bed and mattress. In addition, the ventilation system
worked satisfactorily and the cell doors were unlocked, thereby
enabling detainees to have ready access to the facilities in the
corridor (e.g. drink dispenser, telephone, etc.) as well as to the
sanitary facilities. However, in the same way as during the 1999
visit, it would appear that this relatively favourable state of
affairs was atypical.
Consultation of the relevant register indicated that the
facility frequently accommodated between 100 and 200 persons; the
space available is totally inadequate for such numbers. Further,
despite denials from staff, it subsequently became clear that, due to
pressure of numbers in early July, detained foreign nationals had
also been placed in the basement-level holding areas in building B;
conditions in those areas are totally unsuitable for periods of
detention exceeding a few hours. In addition, the information
gathered indicated that the provision of mattresses and blankets was
a very recent development.
It should also be noted that cells and sanitary
facilities were in a poor state of repair and cleanliness. Moreover,
detainees were still not offered any form of occupational activities
(e.g. reading material, toys for children, etc.), and the CPT was
particularly concerned to learn that no progress had been made as
regards offering outdoor exercise.
64. At the end of the visit, the delegation
called upon the Turkish authorities to attach a high priority to the
implementation of already existing plans to extend the holding
facility at the Foreigners' Department at Istanbul Police
Headquarters. In their reply of 19 December 2001, the Turkish
authorities informed the Committee of progress made in this respect.”
- The
relevant paragraphs of the CPT/Inf (2006)30 Report concerning CPT's
visit from 7 to 14 December 2005 are as follows:
“35. As already indicated (cf.
paragraph 9), the situation observed by the CPT's delegation in the
detention unit for immigration detainees at İstanbul Police
Headquarters was the subject of an immediate observation under
Article 8, paragraph 5, of the Convention. With a capacity
– according to staff – of 90, the unit was holding more
than double that figure (147 men and 43 women) on the day of the
delegation's visit. The outrageous overcrowding and general
sordidness of the conditions in the facility beggared belief, a state
of affairs which is all the more serious in view of the fact that
some of the detainees had been held there for more than six months.
The CPT first drew the Turkish authorities' attention to
the unacceptable nature of the arrangements for immigration detainees
at İstanbul Police Headquarters as long ago as 1997, and has
subsequently reemphasised this point, most recently in the report on
the September 2001 visit (cf. CPT/Inf (2002) 8, paragraphs 62 to 66).
Some minor improvements have been made over the years. However, the
facts found during the December 2005 visit have highlighted once
again the fundamental inadequacy of the existing detention unit;
above all, it is too small.
36. A solution to this long-standing problem
might finally be in sight. By letter of 23 February 2006, the
Turkish authorities confirmed that a much larger facility for this
category of detainee, offering far better conditions, would be
brought into service towards the end of 2006, once extensive
renovation work at the site concerned (in the Eminönü
District) had been completed.
The CPT calls upon the Turkish authorities to give a
very high priority to the bringing into service of the
above-mentioned facility; every attempt should be made to accelerate
the completion of the ongoing renovation work.
As regards the material conditions and regime activities
to be offered in the new facility and the staffing arrangements, the
CPT recommends the Turkish authorities to take fully into account the
standards set out in paragraph 29 of the 7th General Report on the
CPT's activities (CPT/Inf (97)10).
37. The entry into service of the new
facility will in any event not occur for some months. In the
meantime, steps must be taken to alleviate the intolerable situation
in the existing detention unit for immigration detainees at Istanbul
Police Headquarters.
In their letter of 23 February 2006, the Turkish
authorities state that during the transitional period, immediate
measures have been taken to improve conditions at the existing
facility, including as regards sanitary conditions and the provision
of food. The CPT would like to receive further details of the
measures concerned.
For so long as the existing detention unit for
immigration detainees remains in service, the Committee recommends
that every effort be made so that the official capacity of the
facility is not exceeded. Further, immediate steps must be taken to
ensure that all detainees are offered outdoor exercise on a daily
basis; the current situation, in which persons can spend weeks if not
months without ever having access to the open air, is inadmissible.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 4 OF
THE CONVENTION
- Relying
on Article 5 §§ 1 and 4 of the Convention, the applicant
complained that he had been unlawfully detained without the
possibility of challenging the lawfulness of his detention. The
Government contested these arguments.
A. Admissibility
- The
Court notes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government submitted that the applicant's detention was based on
section 23 of Law no. 5683 and section 4 of Law no. 5682 and that he
was being held pending deportation proceedings in accordance with
Article 5 § 1 (f) of the Convention. The Government
further submitted that a certain A.A., an Iranian who had entered
Turkey illegally and who had been detained in the Kırklareli
Accommodation Centre, had successfully challenged his detention and
possible deportation before the administrative courts. He was
consequently given a temporary residence permit. Therefore, according
to the Government, administrative proceedings constituted an
effective remedy for the purposes of Article 5 § 4 of the
Convention.
- The
Court reiterates that it has already examined the same
grievances in the case of Abdolkhani and Karimnia (cited
above, §§ 125 135) and the Government's example
of A.A. in the case of Tehrani and Others v. Turkey (nos.
32940/08, 41626/08 and 43616/08, §§ 74 79,
13 April 2010). It found in the former case that the placement
of the applicants in the Kırklareli
Accommodation Centre constituted a deprivation of liberty. The Court
concluded that, in the absence of clear legal
provisions establishing a procedure for ordering and extending
detention with a view to deportation and setting time-limits for such
detention, the deprivation of liberty to which the applicants had
been subjected was not “lawful” for the purposes of
Article 5 § 1 of the Convention. The Court found in the latter
case that the judicial review in the case of A.A. could not be
regarded as a speedy reply to A.A.'s request; he had continued to be
held in detention for another thirty days despite the court ruling
regarding his release. It concluded that the Turkish legal system did
not provide the applicants with a remedy whereby they could speedily
obtain judicial review of the lawfulness of their detention within
the meaning of Article 5 § 4 of the Convention.
- The Court has examined the
present case and finds no particular circumstances which would
require it to depart from its findings in the aforementioned
Abdolkhani and Karimnia
or Tehrani and Others
judgments.
There
has therefore been a violation of Article 5 §§ 1 and 4 of
the Convention.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained about the conditions of detention at the
Foreigners' Department of the Istanbul Security Headquarters.
A. Admissibility
- The
Government contended that the applicant had not exhausted the
criminal and administrative remedies available to him. The Government
added that the application should be declared inadmissible for
failure to comply with the six-month rule contained in Article 35 §
1 of the Convention. According to the Government the applicant should
have introduced his complaint within six months of his release on
25 September 2004, had he considered the domestic proceedings to
be ineffective. However he had lodged his complaint on 4 April 2005.
- The
applicant reiterated his complaints. He maintained that the domestic
remedies referred to by the Government were only available in theory
and not effective in practice. In this connection he submitted a
sample decision delivered by the Istanbul Administrative Court on
29 May 2006, in which the court rejected the objection of a
certain O.İ., who had lodged a similar complaint about the
conditions of detention at the Foreigners' Department of the Istanbul
Security Headquarters, where he had been held for deportation
purposes in September 2005. In line with the existing procedure,
O.İ.'s complaint had been examined by the District Governorship,
which had refused to start legal proceedings for lack of sufficient
evidence.
- The
Court reiterates that the purpose of Article 35 § 1 of the
Convention is to afford the Contracting States the opportunity of
preventing or putting right the violations alleged against them
before those allegations are submitted to the Court. Consequently,
States are dispensed from answering for their acts before an
international body before they have had the opportunity to put
matters right through their own legal systems. However, the only
remedies which must be tried under Article 35 § 1 of the
Convention are those that relate to the breaches alleged and which at
the same time are available and adequate. The existence of such
remedies must be sufficiently certain not only in theory but also in
practice, failing which they lack the requisite accessibility and
effectiveness (see, among many others, Kalashnikov v. Russia
(dec.), no. 47095/99, 18 September 2001).
- Furthermore,
the Court reiterates that, in the area of exhaustion of domestic
remedies, the burden of proof is on the Government to satisfy the
Court that the remedy was an effective one, available in theory and
in practice at the relevant time, that is to say, that it was
accessible, was capable of providing redress in respect of the
applicant's complaints and offered reasonable prospects of success.
Once this burden of proof is satisfied it falls to the applicant to
show that the remedy advanced by the Government had in fact been made
use of, or was for some reason inadequate and ineffective in the
particular circumstances of the case, or that there existed special
circumstances absolving him or her from the requirement (see
Kalashnikov, cited above).
- In
connection with the above, the Court observes that the applicant
submitted a decision whereby the judiciary rejected the objections of
a person who had unsuccessfully attempted to initiate legal
proceedings with regard to the conditions of detention in the same
facility where the applicant had been held. The Court notes that, in
reply to the applicant's submissions, the Government have not pointed
to any examples of cases where similar complaints were examined and
conditions at a foreigners' department were improved following a
legal decision.
- The
Court is therefore led to conclude that it is not established with
sufficient certainty that there existed domestic remedies capable of
affording redress to the applicant in relation to his complaint
concerning the conditions of detention. It accordingly dismisses the
Government's objection.
- As to the Government's complaint concerning the
six-month time-limit, the Court observes that the date mentioned by
the Government is in fact the date of arrival of the application
forms at the Court. The Court has held in its previous judgments that
the date of introduction of an application is not the Registry's
stamp which indicates the arrival date (see Şahin Karakoç
v. Turkey, no. 19462/04, §§ 23-25, 29 April 2008) but
is the date of the first communication from the applicant indicating
an intention to lodge an application (see Chalkey v. the United
Kingdom (dec.), no. 63831/00, 26 September 2002). In
the present case duly completed application forms were transmitted to
the Court by fax on 21 March 2005. The applicant was released on 25
September 2004. Consequently, the Court finds that the applicant
lodged his application within the six-month time-limit.
- The
Court notes that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government submitted that the applicant's allegations were not
substantiated and the conditions at the Foreigners' Department of the
Istanbul Security Headquarters met all the basic needs of the
foreigners who were temporarily held for deportation purposes. The
applicant reiterated his complaints.
- The
Court reiterates that, according to the Convention organs' case-law,
ill-treatment must attain a minimum level of severity if it is to
fall within the scope of Article 3 (see Ireland v. the United
Kingdom, 18 January 1978, § 162, Series A no. 25). The
same holds true in so far as degrading treatment is concerned (see
Costello-Roberts v. the United Kingdom, 25 March 1993, §
30, Series A no. 247-C). The assessment of this minimum level of
severity is relative; it depends on all the circumstances of the
case, such as the duration of the treatment, its physical and mental
effects and, in some cases, the sex, age and state of health of the
victim (see Ireland and Costello-Roberts, both cited
above, loc. cit.). In this connection overcrowding and
inadequate facilities for heating, sanitation, sleeping arrangements,
food, recreation and contact with the outside world may sometimes
amount to inhuman or degrading treatment. When assessing conditions
of detention, account has to be taken of the cumulative effects of
these conditions, as well as of specific allegations made by the
applicant (see Dougoz v. Greece, no. 40907/98, § 45, ECHR
2001 II).
- At
the outset, the Court reiterates that it has found, as mentioned
above, that the applicant has been deprived of his liberty (see
paragraph 19 above). Given the fact that he had been held at a
facility under State supervision and against his own will, the
physical conditions in this centre must comply with the requirements
of Article 3 of the Convention (see Tehrani and Others, cited
above, § 45).
- The
Court observes that the applicant referred to CPT reports about the
Foreigners' Department of the Istanbul Security Headquarters and
further provided a detailed account of the conditions of his
detention, supported by drawings of the facility. The Government in
reply submitted general information regarding the detention facility
(see paragraph 11 above), failing to provide details as to the
number of persons held at any given period or whether they were
allowed to spend any time outdoors.
- The
Court takes note of the relevant extracts of the two aforementioned
CPT reports (see paragraphs 13 and 14 above) which indicate that the
CPT visited the Foreigners' Department of the Istanbul Security
Headquarters some time in 1999, in September 2001 and December 2005.
The applicant was held in this facility between 25 June and
25 September 2004, which falls between the CPT's last two
visits. The Court points out that the findings of the CPT provide a
reliable basis for the assessment of the conditions in which the
applicant was imprisoned (see Kehayov v. Bulgaria, no.
41035/98, § 66, 18 January 2005). Both of these reports strongly
criticise the conditions of detention, which are described thus:
“outrageous overcrowding and general sordidness in the facility
beggared belief”. The CPT further recommended in the second
report that the official capacity of the facility should not be
exceeded. Although the Court has not conducted an on-site visit, it
notes that the applicant's allegations are corroborated by the
conclusions of the CPT report. The applicant was detained for ninety
days at the Foreigners' Department of the Istanbul Security
Headquarters, which had been found to be overcrowded and
fundamentally inadequate by the CPT. It appears that there were not
enough beds or blankets for everybody. Additionally the Government do
not specify whether the rooms had natural light or deny that the
detainees were not allowed to spend time outdoors. Therefore it
seems, as alleged by the applicant and supported by the second CPT
report cited above, that the applicant did not have access to natural
light or open air during the ninety days he was detained in the
Foreigners' Department.
- In the light of the above, the Court considers that
the conditions of detention of the applicant at the Foreigners'
Department of the Istanbul Security Headquarters, in particular the
serious overcrowding and absence of adequate sleeping facilities,
combined with the lack of access to open air and the inordinate
length of the period during which he was detained in such conditions,
went beyond the threshold of severity under Article 3 of the
Convention and amounted to degrading treatment.
It
follows that there has been a violation of that provision.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not claim pecuniary damage. As for non-pecuniary
damage, he claimed 12,000 euros (EUR). In respect of costs and
expenses the applicant submitted a lawyer's contract signed for 210
Turkish liras (TRY) per hour plus 18% VAT and indicated that
thirty-six hours of work had been carried out, amounting in total to
TRY 9,261 (approximately EUR 4,823).
- The
Government contested these claims, stating that
they were excessive and that only costs actually incurred could be
reimbursed.
- The
Court considers that the applicant must have suffered non-pecuniary
damage which cannot be compensated solely by the finding of
violations. Having regard to the gravity of the violations and to
equitable considerations, it awards the applicant the full sum
claimed under this head.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the applicant
the sum of EUR 3,500 in respect of costs and expenses.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
2. Holds that there has been a violation of Article
5 §§ 1 and 4 of the Convention;
- Holds that there has been a violation of Article
3 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
sums, to be converted into Turkish liras at the rate applicable on
the date of settlement:
(i) EUR
12,000 (twelve thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage;
(ii) EUR
3,500 (three thousand five hundred euros) plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the
above amounts at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage
points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 19 October 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise Tulkens
Deputy
Registrar President
