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SECOND
SECTION
CASE OF MOGHADDAS v. TURKEY
(Application
no. 46134/08)
JUDGMENT
STRASBOURG
15
February 2011
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 Moghaddas v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Françoise
Elens-Passos, Deputy
Section Registrar,
Having
deliberated in private on 25 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 46134/08) 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 an Iranian national, Mr Ali Moghaddas (“the
applicant”), on 28 September 2008. The applicant was
represented by Mrs D. Abadi, director of Iranian Refugees'
Alliance Inc., a non governmental organisation based in New
York. Mrs Abadi was approved by the President of the Chamber to
represent the applicant in the written proceedings before the Court
pursuant to Rule 36 § 4 (a) of the Rules of Court. The Turkish
Government (“the Government”) were represented by their
Agent.
- On
29 September 2008 the President of the Chamber to which this case was
allocated decided, in the interests of the parties and the proper
conduct of the proceedings before the Court, to indicate to the
Government of Turkey, under Rule 39 of the Rules of Court, that the
applicant should not be deported to Iran or Iraq until 27 October
2008. On 3 October 2008 the parties informed the Court that the
applicant had been deported from Turkey on 28 September 2008, prior
to the notification of the application and the indication of the
interim measure by the Court. On 27 October 2008 the interim measure
previously indicated under Rule 39 of the Rules of Court expired.
- On
27 May 2009 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
give the case priority (Rule 41 of the Rules of Court) and to rule on
the admissibility and merits of the application at the same time
(Article 29 § 1 of the Convention).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1966 and lives in Switzerland.
A. Background to the case
- In
1990 the applicant fled from Iran to Turkey to escape arrest by the
Iranian authorities for assisting a member of the People's Mojahedin
Organisation of Iran (“the PMOI”) to flee Iran.
- In
early 1991 he crossed the border from Turkey to Iraq and joined the
PMOI there. In Iraq the applicant lived in the Al-Ashraf camp, where
PMOI members were accommodated. In 2003 or 2004 he left the PMOI, as
he no longer agreed with its goals and methods. After his departure
from the Al-Ashraf camp, he went to the Temporary Interview and
Protection Facility (“the TIPF”), a camp created by the
United States forces near Al Ashraf.
- On
12 September 2007 the applicant applied to the United Nations High
Commissioner for Refugees (“the UNHCR”) in Iraq for
refugee status. In April 2008, however, before he could be
interviewed by the UNHCR and possibly granted refugee status, the
TIPF was closed down and the applicant was transferred to Erbil in
northern Iraq, along with other former PMOI members.
- In
September 2008 the applicant fled from Iraq to Turkey, on account of
the constant fear of being attacked or being sent back to Iran,
coupled with the difficulties encountered in the extension of his
residence permit in Iraq.
B. The applicant's arrest and detention
- On
14 September 2008 the applicant attempted to escape to Greece from
Turkey by boat together with a friend, but they were stranded in the
water for approximately eighteen hours when their inflatable boat
capsized. On 15 September 2008 at approximately 11.00 a.m. they were
rescued and arrested by Turkish coastguards. They were also examined
by a doctor at the Güzelçamlı Health Clinic at 2.10
p.m. on the same day; no injuries or other abnormalities were
identified. The applicant was later transferred to the Güzelçamlı
gendarmerie station in Kuşadası, Aydın.
- The
applicant was questioned at the gendarmerie station in the absence of
a lawyer, where he informed the authorities of his political
background and requested leave to stay in Turkey temporarily pending
resettlement in a third country. According to a form explaining
arrested persons' rights which the applicant had signed, he had been
reminded of his right to remain silent and to appoint a lawyer. It
appears that the applicant was not provided with an interpreter
during the interview. He tried to communicate with the police with
his limited knowledge of Turkish and with the assistance of his
friend, who was of Azeri ethnic origin and spoke some Turkish.
- On
the same day the applicant was subjected to an administrative
sanction by the Kuşadası public prosecutor for attempting
to leave Turkey illegally without a passport or other valid
identification document, in contravention of Section 33 of the
Passport Act (Law no. 5682). The applicant was fined 100 Turkish
liras (TRY).
1. Conditions of detention - submissions of the
applicant
- The
applicant was detained at the Güzelçamlı gendarmerie
station until 26 September 2008, under allegedly deplorable
conditions. More specifically, for the first three days of his
detention he was detained in the basement of the gendarmerie station,
which measured less than thirty square metres and accommodated over
forty detainees and had no sanitary facilities, ventilation or
bedding. The applicant alleges that the detainees were taken to the
toilet four at a time and only every twenty-four to thirty hours,
which forced them to relieve themselves in empty bottles and bags in
each other's presence. When they were taken to the toilet, the guards
kicked the toilet door and poured water from above the door on those
who stayed longer than a few minutes. In the basement, there was not
enough space for everyone to lie down even on the floor and some
detainees shared lice-infested blankets. Moreover, meals were served
only twice a day with dirty dishes and spoons, and no clean drinking
water was provided. The applicant asserts that detainees were kept in
that overcrowded, barely lit and barely ventilated basement at all
times, except for the few minutes when they were taken to the toilet.
- After
the first three days, the applicant was allegedly removed from the
basement and taken to an upstairs holding cell, which he refers to as
the “second-level basement” to repair the station's
electrical wiring and equipment from early in the morning until late
at night. The new cell measured eight square metres and held eleven
other detainees. It had only one bunk bed, a toilet and sink, but no
hot water or shower. The applicant states that he received no medical
attention throughout his detention.
- During
his detention at the gendarmerie station he was not allowed to
contact anyone, including any lawyer. He was only able to make a
brief unauthorised telephone call to his brother in the United States
of America (“the USA”) to inform him of his situation. He
arranged for a local lawyer to assist the applicant in applying for
asylum. The applicant's brother also got in touch with the UNHCR
Turkey Branch Office, which in turn contacted the Turkish authorities
on 24 September 2008 to inform them of the applicant's wish to apply
for asylum and to request the suspension of his deportation.
- On
26 September 2008 the local lawyer arranged by the applicant's
brother managed to gain access to the applicant at the gendarmerie
station and obtained written authorisation to represent him in the
domestic asylum proceedings. The applicant claimed that he was
interviewed for a second time by the police that day.
2. Conditions of detention - submissions of the
Government
- The
Government supplied information, photographs and video footage
demonstrating the conditions at the relevant gendarmerie station.
Their submissions indicated that the detention facilities where the
applicant was kept were cleaned and maintained regularly, that the
number of detainees never exceeded the holding capacity of the
detention facilities and they were regularly taken out to the back
yard of the gendarmerie station for fresh air, that meals were
regularly supplied by the administration and any medical needs were
met within twenty-four hours at the Güzelçamlı
Health Clinic, that detainees had at their disposal toilets and
showers which they were allowed to use without any limitations and
the administration supplied them with basic personal hygiene
products. Moreover, according to the documents submitted by the
Government, the applicant was reminded of his legal rights upon his
arrest and he was asked to inform the authorities if he wanted to
contact anyone. The applicant however never asked to contact the
outside world throughout his stay at the Güzelçamlı
gendarmerie station, nor did anyone attempt to get in touch with him.
C. The applicant's deportation
- On
26 September 2008 the applicant was handed over to police officers
from the aliens department of the Aydın police headquarters with
a view to his deportation. He was subsequently handcuffed and put in
a bus with a number of Iraqi nationals and driven to the Iraqi
border, which took twenty four hours. He was not allowed to
contact his lawyer at this juncture.
- During
the night of 27 September 2008 he was handed over to the Iraqi
authorities at the Habur official border crossing. The authorities
refused to admit him as he was not an Iraqi national.
- On
28 September 2008 the applicant was taken to the Silopi police
headquarters in Şırnak and was informed that he would be
deported to Iran. The applicant pleaded with them to stop the
deportation, telling them that he would be executed if deported to
Iran.
- At
around 9.00 p.m. on the same day the applicant was taken to the river
near the Habur official border crossing. The applicant alleged that
he was forced to cross the fast-flowing river into Iraq illegally
despite his protests. He further claimed that after he managed to
enter Iraq covertly, he had first to cross the Zakhu border area,
where he risked being shot at by border guards, and then mountainous
terrain and a minefield before reaching the UNHCR office in Dohuk.
- On
1 January 2009 the applicant was granted refugee status under the
UNHCR's mandate by the UNHCR office in Erbil, Iraq.
- On
10 September 2009 the applicant fled Iraq and arrived in Switzerland.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law and practice as well as the
international material may be found in the case of Abdolkhani
and Karimnia v. Turkey (no.
30471/08, §§ 29-51, 22 September 2009).
- Paragraph
58 of the Report to the Turkish Government on the visit to Turkey
carried out by the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (CPT) from 2 to
14 September 2001 states as follows:
“The CPT does not contest a State's right to
remove from its territory foreign nationals who contravene aliens
legislation, provided that international obligations such as those
related to asylum and non-refoulement are respected. However,
removals should be carried out at official border crossing points. It
is not acceptable that persons be forced to enter neighbouring
countries illegally; it is all the more unacceptable when such
actions oblige the persons concerned to cross rivers or mountainous
areas, thereby exposing them to hazards and even placing their lives
at risk. In the CPT's view, forcible removals of this kind will in
many cases amount to inhuman or degrading treatment”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2, 3 AND 13 OF THE
CONVENTION
A. Alleged violation of Articles 2, 3 and 13 of the
Convention in relation to the deportation of the applicant
- The
applicant complained that his removal to Iraq without an individual
assessment of his claims, despite the real risk of being exposed to
inhuman and degrading treatment there and the risk of his refoulement
to Iran, where he was likely to be tortured and executed, had
breached Articles 2 and 3 of the Convention. He further
complained under Article 13 of the Convention that he had not
had an effective domestic remedy at his disposal whereby he could
challenge the decision to deport him to Iraq and that he had not been
allowed to have access to the asylum procedure.
- The
Government contested the applicant's allegations.
- The
Court notes that this part of the application concerned the
applicant's deportation to Iraq, which put him at risk of
ill-treatment and of being sent to Iran, where he would risk being
persecuted as a former PMOI member. The Court observes that the
applicant's deportation to Iraq was effected on 28 September 2008,
before the matter was brought before the Court. The Court further
notes that there is no information in the case file to indicate that
the applicant was subjected to any adverse treatment in violation of
Articles 2 or 3 of the Convention while in Iraq as he had suspected,
or that he was removed or threatened with removal to Iran by the
Iraqi authorities.
- It
follows, particularly bearing in mind that the applicant now lives in
Switzerland, that this part of the application is manifestly
ill-founded and must be rejected pursuant to Article 35 §§
3 and 4 of the Convention.
B. Alleged violation of Article 3 of the Convention in
relation to the manner in which the deportation of the applicant was
effected
- The
applicant argued under Article 3 of the Convention that following the
Iraqi authorities' refusal to admit him through the official Habur
border post, he was locked up overnight inside a bus while handcuffed
to a seat and was kept in various police and gendarmerie stations
until he was deported to Iraq by illegal means, which exposed him to
various deadly hazards, such as drowning and being blown up by a
mine.
- The
Government contested these allegations, which in their opinion were
completely unsubstantiated. They did not, however, submit any
documentary evidence to counter the applicant's claims.
- The
applicant maintained his allegations regarding the manner of his
forcible removal to Iraq. He submitted a satellite image of the
relevant border crossing area in support of his claims, as well as a
signed statement from M.N., a survivor of and eyewitness to a past
incident where a number of refugees who had been forced to cross the
same river had drowned on 23 April 2008.
- The
Court notes in the first place that the Government's failure to make
any submissions in respect of the legal framework within which the
applicant was deported to Iraq raises the question whether the
deportation was carried out in the absence of a proper legal
procedure. The Court observes in this connection that the UNHCR and a
number of other sources, such as Amnesty International, have reported
that there are cases where non-Iraqi nationals have been deported to
Iraq forcibly and illegally by the Turkish authorities (see
Abdolkhani and Karimnia, cited above, § 85).
According to the UNHCR's press release of 25 April 2008,
there were witness reports that the Turkish authorities had attempted
to deport sixty persons to Iraq through the official border crossing
on 23 April 2008. As the Iraqi border authorities only accepted Iraqi
nationals and refused to admit eighteen non-Iraqi refugees, the
latter had been forced to cross a fast-flowing river by the Turkish
police. Four of them had been swept away by the strong river current
and had drowned. Their bodies could not be recovered (see Abdolkhani
and Karimnia, cited above, § 47).
- The
Court further notes the 2001 periodic report of the CPT to the
Government of Turkey, in which it was emphasised that forcible
removals exposing refugees to hazards and placing their lives at risk
could amount to inhuman and degrading treatment (see paragraph 24
above).
- Before
moving on to examine the applicant's claims, the Court reiterates
that allegations of ill-treatment must be supported by appropriate
evidence. To assess this evidence, it has generally applied the
standard of proof “beyond reasonable doubt” (see, among
many others, Talat Tepe v. Turkey, no. 31247/96, §
48, 21 December 2004). Such proof may, however, follow from the
coexistence of sufficiently strong, clear and concordant inferences
or of similar unrebutted presumptions of fact. The Court further
reiterates that ill-treatment must attain a minimum level of severity
if it is to fall within the scope of Article 3. The assessment of
this minimum is relative. It depends on all the circumstances of the
case, such as the duration of the treatment, its physical or mental
effects and, in some instances, the sex, age and state of health of
the victim (see Labita v. Italy [GC], no. 26772/95,
§§ 120 and 121, ECHR 2000-IV).
- The
Court notes in the instant case that there is no evidence in the case
file corroborating the applicant's account of the events. The witness
statement in respect of a previous incident involving the drowning of
four Iranian refugees cannot, in the absence of other evidence, lead
to the conclusion that the applicant was also deported under the same
hazardous conditions. Furthermore, the Court cannot but notice that
although the applicant went directly to the UNHCR's Dohuk office once
in Iraq, there is no indication in the case file that the allegations
in question were reported to the UNHCR.
- In
view of the foregoing, the Court concludes that although it may be
accepted that he was deported unlawfully, the applicant has failed to
adduce sufficient evidence to substantiate his allegations that the
manner in which he was deported to Iraq attained the minimum level of
severity required under Article 3 of the Convention and thus amounted
to inhuman and degrading treatment within the meaning of this
provision.
- It
follows that this part of the application is manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and must
be rejected pursuant to Article 35 § 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLES 3 AND 5 OF THE
CONVENTION IN RELATION TO THE DETENTION OF THE APPLICANT
- The
applicant complained that his detention at the Güzelçamlı
gendarmerie station was unlawful and thus in breach of Article 5 §
1 (f) of the Convention. He also alleged under Article 5 §§
2 and 4 of the Convention that he had not been provided with
information at any stage of his detention regarding the reasons for
his deprivation of liberty, its maximum length or any means of
challenging it. Lastly, he maintained under Article 3 of the
Convention that the conditions in which he was detained at the
Güzelçamlı gendarmerie station, coupled with the
mental anguish arising from lack of communication with the outside
world, the uncertain length of the detention and the risk of being
deported, amounted to inhuman and degrading treatment.
A. Alleged violations of Article 5 of the Convention
1. 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.
2. Merits
(a) Alleged violation of Article 5 §
1 of the Convention
- The
Government maintained that the applicant had been placed in the
Güzelçamlı gendarmerie station on account of his
illegal entry into Turkey. He had, however, not been detained or
placed in custody but was merely under surveillance, in accordance
with section 23 of the Act on the Residence and Travel of Foreigners
in Turkey (Law no. 5683), pending the assessment of his temporary
asylum request. They contended that “detention” was
deprivation of liberty in accordance with a court decision, whereas
there had been no such court decision in the present case. The
applicant's status could therefore only be considered within the
scope of Article 5 § 1 (f) of the Convention.
- The
applicant maintained his allegations that he had been detained within
the meaning of Article 5 § 1 of the Convention without a
judicial or administrative decision regarding his deportation or
detention and that his detention had no legal basis.
- The
Court reiterates that it has already examined the same grievance in
the aforementioned case of Abdolkhani and Karimnia (cited
above, §§ 125-135). It found in that case that the
placement of those applicants in the Kırklareli Foreigners'
Admission and Accommodation Centre constituted a deprivation of
liberty and concluded that, in the absence of clear legal provisions
establishing the 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 were subjected was not
“lawful” for the purposes of Article 5 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 judgment.
There
has accordingly been a violation of Article 5 § 1
of the Convention.
(b) Alleged violation of Article 5 §
2 of the Convention
- The
Court reiterates that Article 5 § 2 contains the elementary
safeguard that any person arrested should know why he or she is being
deprived of liberty. This provision is an integral part of the scheme
of protection afforded by Article 5: by virtue of Article 5 § 2
any person arrested must be told, in simple, non-technical language
that can be easily understood, the essential legal and factual
grounds for the arrest, so as to be able, if he or she sees fit, to
apply to a court to challenge its lawfulness in accordance with
Article 5 § 4 (see Abdolkhani and Karimnia, cited above,
§ 136).
- The
Court observes that the applicant was arrested on 15 September 2008
and subsequently detained in police custody for the following
thirteen days. The arrest record, which was signed by the applicant,
indicated that the arrest had been effected on account of the
applicant's attempt to leave Turkey by illegal means, pursuant to
Law no. 5682. Following his arrest, the applicant was
requested to make a statement to gendarmerie officers regarding his
illegal attempt to leave the country. Later on the same day, an
administrative sanction was imposed on the applicant by the Kuşadası
public prosecutor for infringing section 33 of Law no. 5682 by
attempting to leave Turkey without a passport. He was, nevertheless,
kept in detention, despite the lack of any evidence in the case file
to indicate that any further charges had been brought against him
that could justify his continued detention. It therefore appears
that, from 15 September 2008 onwards, the applicant had not been
detained on account of a criminal charge, but in the context of
immigration controls. In these circumstances, the Court must assess
whether the applicant was informed of the reasons for this detention
in accordance with the requirements of Article 5 § 2 of the
Convention.
- The
Court notes that the Government were explicitly requested to make
submissions as to whether the applicant had been informed of the
reasons for his detention and to provide the relevant documents in
support of their response. The Government did not submit any
information. In the absence of a reply from the Government and of any
documents in the case file which could otherwise indicate that the
applicant was informed of the grounds for his continued detention,
the Court is led to the conclusion that the grounds for his detention
were never communicated to the applicant by the national authorities.
The Court moreover notes that the applicant was at no point provided
with a proper interpreter, despite his very limited understanding of
Turkish, which also demonstrates the authorities' unwillingness to
inform him of the reasons for his detention.
Against
this background, the Court concludes that there has been a violation
of Article 5 § 2 of the Convention.
(c) Alleged violation of Article 5 §
4 of the Convention
- The
Court observes that the Government failed to make any submissions to
demonstrate that the applicant had at his disposal a procedure
through which the lawfulness of his detention could be examined by a
court.
- The
Court moreover notes the applicant's allegation that he was not
provided with the opportunity to contact a lawyer, or anyone else for
that matter, during his detention at the Güzelçamlı
gendarmerie station, which allegation was not effectively rebutted by
the Government. Although the applicant had apparently signed a form
following his arrest explaining his rights as an arrested person,
including his right to appoint a lawyer, the effectiveness of such a
form is highly debatable in view of the applicant's very limited
knowledge of Turkish. The Court observes that the applicant only
gained access to a lawyer eleven days into his detention through the
intervention of his brother, who lived in the USA, which is contested
by the Government. Furthermore, the applicant was removed from the
gendarmerie station with a view to deportation immediately after
meeting the lawyer, before he had had any meaningful opportunity to
challenge his detention.
- In
these circumstances, and bearing particularly in mind its finding
that the applicant had not been informed of the reasons for the
deprivation of his liberty (see paragraph 46 above), the Court
considers that the applicant's right to appeal against his detention
was deprived of all effective substance (see Abdolkhani and
Karimnia, cited above, § 141).
- Accordingly,
the Court concludes that the Turkish legal system did not provide the
applicant with a remedy whereby he could obtain judicial review of
the lawfulness of his detention, within the meaning of Article 5 § 4
of the Convention (see S.D. v. Greece, no. 53541/07, § 76,
11 June 2009).
There
has therefore been a violation of Article 5 § 4 of the
Convention.
B. Alleged violation of Article 3 of the Convention
- The
Government initially failed to make any submissions as regards the
applicant's allegations concerning the conditions of his detention at
the Güzelçamlı gendarmerie station. However, upon
request, they subsequently supplied information, photographs and
video footage, demonstrating that the applicant's basic needs had
been duly met by the authorities. The Government further emphasised
that contrary to his allegations, neither the applicant nor any other
person held at the Güzelçamlı gendarmerie station
had been subjected to inhuman or degrading treatment.
- The
applicant maintained his allegations regarding the material
conditions of the detention facilities at the Güzelçamlı
gendarmerie station. He submitted a sketch plan of the detention
premises in support of his allegations.
- The
Court reiterates that, under Article 3 of the Convention, the State
must ensure that a person is detained in conditions which are
compatible with respect for his or her human dignity, that the manner
and method of the execution of the measure do not subject the
detainee to distress or hardship of an intensity exceeding the
unavoidable level of suffering inherent in detention, and that the
individual's health and well being are adequately secured. When
assessing conditions of detention, account has to be taken of the
cumulative effects of those conditions and the duration of the
detention (see Dougoz v. Greece, no. 40907/98, § 46,
ECHR 2001-II, and Kalashnikov v. Russia, no. 47095/99,
§ 102, ECHR 2002 VI).
- The
Court notes the serious allegations made by the applicant regarding
the conditions of his detention at the Güzelçamlı
gendarmerie station, including overcrowding, poor hygiene,
malnutrition, maltreatment and lack of fresh air and medical
assistance. It considers, however, on the basis of the photographs
and video footage provided by the Government that there appear to be
no grounds to reproach them for the physical conditions at the
relevant detention facilities. It is noted in this connection that
the detention room had ample natural light, as well as six
mattresses, bedding, one table and two chairs. The sanitary
facilities were properly equipped, with two private toilets, three
urinals, two private showers, six washbasins, three soap dispensers
and six mirrors. Moreover, the overall hygiene of the premises was
fairly satisfactory. That being said, the Court cannot but note that
the sketch plan of the detention premises provided by the applicant
does not appear to match entirely the photographs and video footage
furnished by the Government, which unequivocally pertain to the
Güzelçamlı gendarmerie station. Nor is there any
indication in the material submitted by the Government that the
applicant was moved to another cell at the “the second-level
basement ” after the first three days of his detention as he
alleged, or that such a separate cell even existed on the premises.
- As
for the allegation of overcrowding, the Court cannot determine from
the documents in the case file the number of persons held at the
Güzelçamlı gendarmerie station during the relevant
period, nor can it establish unequivocally whether the applicant was
kept indoors continuously or, if not, how often he was taken outdoors
for fresh air and exercise. The Government deny both allegations in
their submissions. The applicant's assertions on these grounds,
therefore, remain unsubstantiated. The Court also notes that the
applicant similarly failed to substantiate why he was in need of
medical assistance while being kept in detention, or how the lack of
such assistance adversely affected his state of health.
- The
Court accepts that the illegal nature of the applicant's detention,
coupled with the uncertainty as to its duration arising from the
absence of a procedure in domestic law setting time-limits for such
detention, might have caused him a feeling of anxiety. The Court,
nevertheless, is not in a position to conclude that the applicant has
made a prima facie case that the physical conditions at the
Güzelçamlı gendarmerie station were sufficiently
harsh to bring them within the scope of Article 3 of the Convention,
despite the possible shortcomings. The Court also notes in this
regard the relatively short duration of the applicant's detention,
eleven days approximately, in concluding that the applicant's
suffering appears to fall below the minimum level of severity
required under Article 3 of the Convention.
It
follows that this complaint must be rejected as being manifestly
ill founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
- The
applicant claimed 40,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government contested this claim as unsubstantiated and excessive.
- The
Court considers that the applicant must have suffered non pecuniary
damage which cannot be compensated for solely by the finding of
violations. Having regard to equitable considerations, the Court
therefore awards the applicant EUR 9,000 in respect of non-pecuniary
damage.
B. Costs and expenses
- The
applicant also claimed EUR 4,645 for costs and expenses incurred
before the Court. In this connection he submitted a time sheet
indicating sixty hours' legal work carried out by his legal
representative and a table of costs and expenditure.
- The
Government contested this claim, noting that only costs actually
incurred could be reimbursed.
- 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
finds it reasonable to award the applicant the sum of EUR 3,500 for
his costs before it.
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 admissible the complaints under Article
5 §§ 1, 2 and 4 concerning the unlawfulness of the
applicant's deprivation of liberty before his deportation, the lack
of notification of the reasons for his detention and the
ineffectiveness of the judicial review of the detention;
- Declares the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
5 §§ 1, 2 and 4 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 amounts, to be
converted into Turkish liras at the rate applicable on the date of
settlement:
(i) EUR
9,000 (nine thousand euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable;
(ii) EUR
3,500 (three thousand five hundred euros) in respect of costs and
expenses, plus any tax that may be chargeable to the applicant;
(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 15 February 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
