SECOND SECTION
CASE OF
ATHARY v. TURKEY
(Application no.
50372/09)
JUDGMENT
STRASBOURG
11 December 2012
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 Athary v. Turkey,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
Dragoljub Popović,
Işıl Karakaş,
Nebojša Vučinić,
Paulo Pinto de Albuquerque, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 20 November 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
50372/09) 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 Hamid Athary (“the applicant”),
on 18 September 2009.
On the same date the President of the Chamber to
which the 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 until further notice. On 10 May 2012 the
President of the Chamber decided to lift the interim measure, as the applicant had
been granted a residence permit in the Netherlands and had moved to that
country on 14 April 2010.
The applicant was represented by Ms Sinem
Uludağ, a lawyer practising in Istanbul. The Turkish Government (“the
Government”) were represented by their Agent.
On 11 March 2010 the application was communicated
to the Government. It was 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 1973 and lives in the Netherlands.
The applicant was a political dissident in Iran. On 17 December 2004 he went to Turkey. Subsequently he requested asylum from the
Turkish authorities and applied to the United Nations High Commissioner for
Refugees (“the UNHCR”) for recognition of his refugee status.
On 11 March 2005 the applicant was notified that
he had been granted a temporary residence permit to live in the city of Konya pending the asylum proceedings. The applicant did not follow the instructions and
settled in Istanbul.
On 30 July 2007 the applicant was arrested in connection
with a drug-related crime. He was subsequently convicted of that crime and
sentenced to eighteen months’ imprisonment.
On 25 August 2007 the UNHCR recognised the
applicant’s refugee status and on 6 February 2008 it informed the national
authorities of its decision. The UNHCR also requested that the applicant be
issued with a temporary residence permit pending the completion of the
procedure for his resettlement once the criminal proceedings against him had
ended.
On 29 December 2008 the applicant was released
from prison and placed in the Kumkapı Foreigners’
Removal Centre attached to the Istanbul police headquarters.
On an unspecified date the national authorities
decided that the applicant could not be granted asylum seeker status in Turkey. The applicant was notified of this decision on 2 January 2009 and submitted an
objection on the same date.
On 22 July 2009 the applicant’s objection was
dismissed. He was then denied a temporary residence permit on 24 July 2009.
In a letter dated 7 September 2009 the Ministry
of the Interior asked the Governor of Istanbul to deport the applicant. The
letter did not specify to which country the applicant should be deported.
On 14 September 2009 the UNHCR asked the Turkish
authorities to grant the applicant a temporary residence permit - on
humanitarian grounds, if not as an asylum seeker.
On 5 October 2009 the Ministry of the Interior
instructed the Istanbul Governor not to proceed with the applicant’s
deportation, on humanitarian grounds, and to continue holding the applicant at
the Kumkapı Centre until the UNHCR had completed the procedure for his resettlement.
The Ministry of the Interior added that, given the applicant’s conviction for
drug-related crimes, the decision had been based on the threat he posed to
public order and health.
On 10 March 2010 the UNHCR informed the national
authorities that the Netherlands had granted the applicant refugee status and asked
them to allow the applicant’s departure to that country.
On 14 April 2010 the applicant left Turkey.
In the meantime, on an unspecified date in 2010,
the applicant had brought a case before the Ankara Administrative Court
challenging his detention at the Kumkapı Centre.
On 1 June 2010 the Ankara Administrative Court
dismissed the case, holding that the administrative authorities’ decision to detain
the applicant had been in accordance with the law: he had been detained with a
view to protecting public order and public security pending his possible
deportation and the judgment of the European Court of Human Rights.
II. RELEVANT INTERNATIONAL TEXTS AND DOMESTIC LAW
AND PRACTICE
A description of the
relevant domestic law and practice may be found in the case of Abdolkhani
and Karimnia v. Turkey (no. 30471/08, §§ 29-44, ECHR 2009-...
(extracts)).
Paragraphs 32 and 33 of the UNHCR Detention
Guidelines of 2012 (Guidelines on the Applicable Criteria and Standards
relating to the Detention of Asylum-Seekers and Alternatives to Detention) provide
as follows:
“32. (...) detention for the sole reason that the person is
seeking asylum is not lawful under international law. Illegal entry or stay of
asylum-seekers does not give the State an automatic power to detain or to otherwise
restrict freedom of movement. Detention that is imposed in order to deter
future asylum-seekers, or to dissuade those who have commenced their claims
from pursuing them, is inconsistent with international norms. Furthermore,
detention is not permitted as a punitive - for example, criminal - measure or a
disciplinary sanction for irregular entry or presence in the country. Apart from constituting a penalty under Article
31 of the 1951 Convention, it may also amount to collective punishment in
violation of international human rights law.
33. As a general rule, it is unlawful to detain asylum-seekers
in on-going asylum proceedings on grounds of expulsion as they are not
available for removal until a final decision on their claim has been made.
Detention for the purposes of expulsion can only occur after the asylum claim
has been finally determined and rejected. However,
where there are grounds for believing that the specific asylum-seeker has
lodged an appeal or introduced an asylum claim merely in order to delay or
frustrate an expulsion or deportation decision which would result in his or her
removal, the authorities may consider detention - as determined to be necessary
and proportionate in the individual case - in order to prevent their
absconding, while the claim is being assessed.”
Article 18 (1) of the European Union Council
Directive 2005/85/EC of 1 December 2005 on Minimum Standards on Procedures in
Member States for Granting and Withdrawing Refugee Status provides as follows:
“Member States shall not hold a person in detention for the
sole reason that he/she is an applicant for asylum.”
THE LAW
I. ALLEGED VIOLATION OF
ARTICLES 2, 3 AND 13 OF THE CONVENTION IN RELATION TO THE THREATENED
DEPORTATION OF THE APPLICANT
The applicant complained under Articles 2 and 3
of the Convention that his removal to Iran would expose him to a real risk of
death or ill-treatment. He further maintained, under
Article 13 of the Convention in conjunction with Articles 2 and 3, that he had had
no effective remedy before the national authorities to prevent his deportation.
The Government contested the applicant’s
allegations.
The Court observes that
this part of the application was related to the applicant’s possible
deportation from Turkey to Iran. The Court further observes that the Turkish Government complied with the interim
measure indicated by the Court relating to the applicant’s removal to Iran, and halted the deportation. Furthermore, on 14 April
2010 the applicant left Turkey and arrived in the Netherlands. In these circumstances, the Court considers that the applicant can no longer claim to be a victim of a violation of Articles 2, 3 and 13 of the
Convention, within the meaning of Article 34 (see, mutatis mutandis, Alipour
and Hosseinzadgan v. Turkey, nos. 6909/08, 12792/08 and 28960/08, §§ 49-52, 13 July 2010, and D.B. v.
Turkey, no. 33526/08, § 43, 13
July 2010).
It follows that this part of the application is
manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3
(a) and 4 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE
CONVENTION
The applicant complained under Article 5 §§ 1, 2
and 4 of the Convention that he had been unlawfully deprived of his liberty,
that he had not been informed of the reasons for his detention and that he had
not had an effective remedy in domestic law whereby he could effectively
challenge the lawfulness of his detention.
A. Admissibility
The Court notes that these complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
1. Alleged violation of Article 5 § 1 of the
Convention
The Government maintained that the applicant had
been sheltered at the Kumkapı Foreigners’
Removal Centre until his departure from Turkey and that in the light of the Ankara Administrative Court decision of 1 June 2010, the deprivation of liberty could
not be considered to be unlawful.
The applicant submitted that his detention at the Kumkapı Foreigners’ Removal Centre between 29
December 2008 and 14 April 2010 had been arbitrary given that it had no legal
basis. He referred to the Court’s judgment in the case of Abdolkhani and
Karimnia (cited above) in this respect.
The Court reiterates that
it has already examined the same grievance in the case of Abdolkhani and Karimnia
(cited above, §§ 125-35), in which it found that the placement of the
applicants in the Kırklareli Centre constituted a deprivation of liberty. 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 Court concluded that the deprivation of liberty to which
the applicants in that case had been subjected had not been “lawful” for the
purposes of Article 5 of the Convention. The Court further notes that detention
of a person for the sole reason that he or she seeks asylum is not compatible
with the referred purposes.
. The
Court has examined the present case and finds no particular circumstances which
would require it to depart from its findings in the above-mentioned judgment.
There has therefore been a violation of
Article 5 § 1 of the Convention.
2. Alleged violation of Article 5 § 2 of the
Convention
The Government maintained that the applicant had
been detained at the Kumkapı Centre because he had
not been eligible for the status of asylum seeker. They further submitted that he
had been notified of the decision to reject his asylum claim on 2 January 2009
and that he had objected to that decision on the same date by way of a
handwritten petition in Turkish, a fact that also demonstrated that the
applicant spoke Turkish.
The applicant submitted that when he had been
transferred to the Kumkapı Centre, he had not been
informed of the reasons for his detention. He noted that on 2 January 2009 he
had been informed of the decision to reject his asylum claim but not the
reasons for his detention, and that his petition of the same date only
concerned that refusal. He also stated that his request for a residence permit
had not been evaluated and rejected until 24 July 2009.
. The
Court reiterates that by virtue of Article 5 § 2, anyone who is 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. Whether the content and
promptness of the information conveyed were sufficient is to be assessed in
each case according to its special features. The Court notes that there is no
call to exclude the applicant in the present case from the benefits of
paragraph 2, as paragraph 4 makes no distinction between persons deprived of
their liberty by arrest and those deprived of it by detention (see Shamayev
and Others v. Georgia and Russia, no. 36378/02, §§ 413 and 414, ECHR
2005-III, and Abdolkhani and Karimnia, cited
above § 136).
In the instant case, the Court observes that the
applicant was transferred to the Kumkapı Centre
following his release from prison on 29 December 2008. The Government have
not submitted any document to the Court demonstrating that the applicant had
been notified of the reasons for his transfer and his continued detention on
the day of the transfer or shortly after his placement in the Kumkapı
Centre. The Government’s submission that the applicant had been notified of the
rejection of his asylum claim cannot be taken as notification of the reasons
for his arrest, given that the refusal of an asylum request does not
automatically give rise to an individual’s detention under Turkish law.
Besides, by the time the applicant was notified, he had already been detained
for five days. The absence of any document in the case-file to show that
the applicant had been informed of the grounds for continuing his detention leads
the Court to the conclusion that the reasons for his detention from 29 December
2008 were not communicated to him by the national authorities.
There has therefore been a violation of Article 5 § 2 of the
Convention.
3. Alleged violation of Article 5 § 4 of the
Convention
The Government submitted that the applicant
could have applied to the administrative courts in order to object to the
decision to hold him at the Kumkapı Centre - and
indeed had done so. They therefore considered that the applicant had had a
remedy whereby he could challenge the lawfulness of his deprivation of liberty.
The applicant maintained that he had written to
the Ministry of the Interior on 1 November 2009 requesting his release from the
Kumkapı Centre. As the administrative
authorities had not responded to his request within sixty days, he had lodged a
complaint with the Ankara Administrative Court on 21 January 2010. Noting that
the Administrative Court had not rendered a judgment in the case until 1 June
2010, by which time he had already been released from the Kumkapı Centre
and had left for the Netherlands, the applicant contended that the review of
the lawfulness of his detention had not been sufficiently speedy.
. The
Court reiterates that the purpose of Article 5 § 4 is to guarantee to persons who are arrested and detained
the right to judicial supervision of the lawfulness of the measure to which
they are thereby subjected (see, mutatis
mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971,
§ 76, Series A no. 12). A remedy must be made available during a person’s
detention to allow that person to obtain a speedy judicial review of its
lawfulness. That review should be capable of leading, where appropriate, to
release. The existence of the remedy required by Article 5 § 4 must be
sufficiently certain, not only in theory but also in practice, failing which it
will lack the accessibility and effectiveness required for the purposes of that
provision (see, mutatis mutandis,
Z.N.S. v. Turkey, no. 21896/08, § 60,
19 January 2010; Stoichkov
v. Bulgaria, no. 9808/02, § 66 in fine, 24 March 2005; and Vachev v. Bulgaria,
no. 42987/98, § 71, ECHR 2004-VIII).
In the present case, the Court reiterates that the applicant was not informed of the reasons for the
deprivation of his liberty (see paragraph 36 above). It therefore
considers that the applicant’s right to appeal against his detention was devoid
of all effective substance at the beginning of his detention (see Abdolkhani and Karimnia,
cited above, § 141).
The Court further observes that the applicant
nevertheless complained to the Ankara Administrative Court about his detention.
Yet, seven months elapsed between the date on which he first asked to be
released and the date of the judgment of the national court. It took the Ankara Administrative Court more than four months to rule on the applicant’s request. In
this connection, the Court refers to its findings under Article 5 § 1
of the Convention about the lack of legal provisions governing the procedure
for detention in Turkey pending deportation. The proceedings in question did
not raise a complex issue. The Court considers that the Ankara Administrative
Court was in an even better position than the Court to observe the lack of a
sufficient legal basis for the applicant’s detention. It therefore finds that
the judicial review in the present case cannot be regarded as a “speedy” response to the applicant’s
petition (see Z.N.S., cited above, § 62, and Tehrani and
Others v. Turkey, nos. 32940/08, 41626/08 and 43616/08, § 78, 13 April 2010).
Accordingly, the Court concludes that the
Turkish legal system did not provide the applicant with a remedy whereby he
could obtain a speedy 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, and Abdolkhani and Karimnia, cited above, § 142).
There has therefore been a violation
of Article 5 § 4 of the Convention.
III. ALLEGED
VIOLATION OF ARTICLE 14 OF THE CONVENTION
The applicant alleged
under Article 14 of the Convention that the unlawfulness of his detention
stemmed from his foreign nationality, and he would not have faced it were he a
Turkish citizen.
. The
Court considers that this part of the application should be declared
admissible. However, in the light of its aforementioned findings of violation
of Article 5 §§ 1, 2 and 4 of the Convention, the Court is of the view that it has examined the main legal question
raised in the present application. It
therefore concludes that there is no need for a
separate ruling in respect of this part of the application (see, mutatis
mutandis, Saygılı and Bilgiç v. Turkey, no.
33667/05, § 36, 20 May 2010, and Güveç
v. Turkey, no. 70337/01, § 135, ECHR 2009 (extracts)).
IV. 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.”
A. Damage and costs and expenses
The applicant claimed 25,000 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 solely by the
finding of violations. Having regard to the gravity of the violations and to
equitable considerations, the Court awards the applicant EUR 9,000 in respect
of non-pecuniary damage.
. The
applicant did not claim any costs and expenses. Accordingly, no award is made
under that head.
B. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the complaints under Articles 2,
3 and 13 of the Convention inadmissible and the remainder of the application admissible;
2. Holds that there has been a violation of
Article 5 § 1 of the Convention;
3. Holds that there has been a violation of
Article 5 § 2 of the Convention;
4. Holds that there has been a violation of
Article 5 § 4 of the Convention;
5. Holds that it is not necessary to examine
the applicant’s complaint under Article 14 of the Convention;
6. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 9,000 (nine thousand
euros), plus any tax that may be chargeable, in respect
of non-pecuniary damage, to be converted into Turkish liras at the rate
applicable on the date of settlement;
(b) that from the expiry of the above-mentioned three
months until settlement, simple interest shall be payable on the above amount
at a rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
7. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 11 December
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
