(Application no. 30471/08)
22 September 2009
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 Abdolkhani and Karimnia v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Ireneu Cabral Barreto,
Işıl Karakaş, judges,
and Sally Dollé, Section Registrar,
Having deliberated in private on 1 September 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
“We entered Turkey with the assistance of a smuggler from the city of Diyana. We are refugees and used to reside in Erbil, Iraq. We came to Turkey in order to contact the UNHCR and ask it to process our [resettlement] cases. The UNHCR's headquarters in Iraq was blown up by terrorists and it no longer has an office there. We request to stay in Turkey temporarily so that our cases can be processed. Our friends advised us that the only way to contact the UNHCR was to come to Turkey. We need a lawyer before we communicate [with you] further.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution
“All acts or decisions of the authorities are subject to judicial review ...
If the implementation of an administrative act would result in damage which is difficult or impossible to compensate, and at the same time this act is clearly unlawful, a stay of execution may be decided upon, stating the reasons therefor ...”
B. Administrative Procedure Act (Law no. 2577)
Section 27(1) of the same Law stipulates that an application to the administrative courts does not automatically suspend implementation of the decision or act in question. Under section 27(2), the administrative courts can order a stay of execution if the decision or act in question is manifestly unlawful and if its implementation would cause irreversible harm.
C. Passport Act (Law no. 5682) and the Act on the Residence and Travel of Foreigners in Turkey (Law no. 5683)
“Foreigners who come to the Turkish borders without a passport or identity documents or with an invalid passport or identity documents shall not be authorised to enter.
Foreigners who claim that they have lost their passport or identity documents while travelling may be authorised, pending an investigation conducted by the Ministry of the Interior, to enter ... and on condition that they can be accommodated at a place designated by the local governor. ...”
“Persons who are forbidden to enter Turkey are ...
(5) Those who are perceived to have come for the purpose of destroying the security and public order of the Republic of Turkey or of assisting or conspiring with persons who want to destroy the security and public order of the Republic of Turkey.”
32. Sections 19 and 23 of Law no. 5683 read as follows:
“Foreigners whose stay in the territory of Turkey is considered to be incompatible with public safety and the political or administrative requirements of the Ministry of the Interior shall be invited to leave Turkey within a fixed time-limit. Those who do not leave Turkey after the expiry of the time-limit may be deported.”
“Persons who are to be deported but cannot leave Turkey due to their inability to obtain a passport or for other reasons are obliged to reside at places designated by the Ministry of the Interior.”
D. Attorneys Act (Law no. 1136)
“Judicial bodies, police departments, other public institutions and agencies, State economic enterprises, private and public banks, notaries, insurance companies and foundations are under an obligation to assist attorneys in carrying out their duties. These entities are obliged to submit requested information and documents to the lawyers for review, subject to any contrary provisions in the laws establishing these entities. Obtaining copies of such documents is subject to the presentation of a power of attorney. In pending cases, documents may be obtained from the court without waiting until the date of the hearing.”
E. The law and practice governing asylum seekers
1. 1951 Convention relating to the Status of Refugees
2. 1994 Regulation
“Refugee: A foreign national who, as a result of events occurring in Europe and owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his or her former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it;
Temporary Asylum Seeker: A foreign national who owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his or her nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country, or who, not having a nationality and being outside the country of his or her former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”
“Foreign nationals entering Turkey legally to seek asylum or to request a residence permit in order to seek asylum in another country shall apply without delay to the governor's office of the city where they are present. Those who enter Turkey illegally are required to apply without delay to the governor's office of the province through which they entered the country.
Those who fail to apply to the authorities within the shortest reasonable time shall state the reasons for failing to do so and shall co-operate with the competent authorities.”
“With regard to individual foreigners who either seek asylum from Turkey or request a residence permit in order to seek asylum from another country the governors' offices shall
a) identify the applicants and take their photographs and fingerprints.
b) conduct interviews with the applicants in accordance with the 1951 Geneva Convention relating to the Status of Refugees. For interviewing and decision making, staff shall be appointed at the governors' offices which are authorised to conduct interviews and to take decisions.
c) send the interview documents along with the comments of the interviewer and the decision made on the case of the applicant, in accordance with the authority granted under Article 6, to the Ministry of the Interior.
d) pending further instructions from the Ministry of the Interior, accommodate the foreigner in a centre or a guest house considered appropriate by the Ministry of the Interior, or authorise the foreigner to reside freely in a place which shall be designated by the Ministry of the Interior.
e) take further steps following instructions from the Ministry of the Interior.”
“Decisions on the applications of individual foreigners, either seeking asylum from Turkey or requesting a residence permit in order to seek asylum from another country, shall be adopted by the Ministry of the Interior in accordance with the 1951 Geneva Convention relating to the Status of Refugees and the Protocol of 31 January 1967 relating to the Status of Refugees and this Regulation.
When it considers it necessary, the Ministry of the Interior may transfer the decision-making authority to the governors' offices.
The decision taken by a governor's office or the Ministry of Interior shall be communicated to the foreigner through the governor's office.
Those foreigners whose applications are accepted shall be accommodated in a guesthouse deemed appropriate by the Ministry of the Interior or shall freely reside in a place which shall be designated by the Ministry of the Interior.
Those whose applications are not accepted may appeal to the relevant governor's office within 15 days.
For a speedier decision, the period for lodging an appeal may be reduced by the Ministry of the Interior, if deemed necessary.
The statement, other information and documents supporting the claim submitted by the applicant appealing the decision shall be sent to the Ministry of the Interior by the governor's office. Any appeal shall be decided by the Ministry of the Interior and the final decision shall be notified to the foreigner.
The situation of those whose appeals are rejected by a final decision shall be assessed within the framework of the general provisions regarding foreigners. Within this framework, those foreigners who are not eligible for a residence permit shall be notified that they must leave Turkey within a time-limit determined by the administration. Foreigners who do not leave the country shall be deported from Turkey by the governors' offices upon receipt of instructions from the Ministry of the Interior, or ex officio by the governors' offices where the direct decision-making authority has been transferred to them.”
3. Circular no. 57
Procedure to be followed by the governors' offices following the decision of the Ministry of the Interior and legal assistance
“Applicants shall be informed by the governors' offices of the decision of the Ministry of the Interior regarding their requests. If the decision is positive, the refugee/temporary asylum seeker shall be granted a residence permit upon receipt of the instructions of the Ministry of the Interior.
Negative decision at first instance
If the first decision taken by the Ministry regarding the applicant's request is negative, the applicant shall be informed that she or he may lodge an objection against the decision within fifteen days in accordance with Article 6 of the 1994 Regulation.
The objection may be made in written form or at an interview, if the applicant requests one.
The residence permit of an applicant who has lodged an objection against the first decision given in his or her regard shall be extended and subsequent action shall be taken upon the instructions of the Ministry of the Interior.
The applicant can submit any information or document in support of his or her objection. The applicant may lodge an objection with the assistance of a legal representative or an adviser or directly through his or her representative.
If the applicant has not lodged an appeal, he or she shall be ordered to leave the country within fifteen days. A check shall be carried out to ensure that he or she has left by the end of this period.
If the person has not left within the specified period, action shall be taken to deport him or her pursuant to the general provisions regarding foreign nationals.
The petition containing the applicant's objection or the information and documents concerning the additional interview shall be sent to the Ministry of the Interior and action shall be taken upon the latter's instructions.
If an applicant is given refugee or asylum seeker status following the examination conducted by the Ministry of the Interior, he or she shall be granted a residence permit upon the instructions of the Ministry.
An applicant whose objection has been rejected can leave the country voluntarily.
Residence permits as a result of subsidiary protection and protection for humanitarian considerations
The cases of applicants whose objections have been rejected by a final decision are assessed within the framework of the general provisions contained in Article 6 of the 1994 Regulation concerning foreigners.
This assessment concerns whether the applicant risks incurring serious harm, in the light of the European Convention of Human Rights, and whether it is necessary to grant him or her subsidiary protection.
Regard is also had to whether the applicant should be granted a residence permit for humanitarian reasons of health, education, family unity, etc., or if he or she has applied to the administrative courts.
Those who are not granted a residence permit within the context of subsidiary protection or protection for humanitarian reasons shall be notified of the decisions taken in their respect. They shall further be informed that they must leave the country within fifteen days, unless another time-limit is set by the Ministry of the Interior.
If the person has not left within the specified period, action shall be taken to deport him or her pursuant to the general provisions regarding foreign nationals.
If the foreigner does not leave the country and applies to the administrative court, the Ministry of the Interior shall be informed. Action shall be taken upon receipt of instructions from the Ministry...”
Cases in which residence permits are not granted ex officio
“...In order to prevent abuse of international protection and to identify those who actually need international protection, those who belong to the categories below shall not be granted residence permits ex officio: ...
Persons who claim asylum following their arrest by security forces; ...
Persons who claim asylum following their arrest by security forces while leaving Turkey illegally;
...If the applicant's request is rejected following the first examination by the Ministry of the Interior and if the applicant does not lodge an objection, he or she shall be deported.
If the applicant wishes to object to the decision, he or she shall be given two days in which to do so. The objection and the documents relating to the objection shall be sent to the Ministry of the Interior as a matter of urgency. Action shall be taken upon receipt of instructions from the Ministry...”
4. National Action Plan
5. Ruling of the Ankara Administrative Court of 17 September 2008
III. RELEVANT INTERNATIONAL MATERIAL
A. Report of the UNHCR Resettlement Service of February 2008
“... 14. ...The Iranian government's treatment of known or suspected members of or sympathisers with the PMOI has reportedly been extremely severe, with long prison sentences and thousands of executions in the years that followed the Islamic revolution. Execution of PMOI members continue to be reported on a sporadic basis, including extra-judicial killings in foreign countries. As a result many PMOI/NLA/NCRI members, or even supporters or family members, are likely to have a well-founded fear of persecution on political grounds. ...
18. Iranian ex-PMOI refugees are considered at particular risk in Iraq. The PMOI has been perceived by some in Iraq as having been affiliated with the former Iraqi regime of Saddam Hussein given the protection that the regime afforded. Others have alleged that PMOI/NLA units were involved in the crushing of the 1991 uprising by Iraqi Kurds and Shia groups which were supported by the Iranian authorities. Groups that were either allied to or perceived to have received preferential treatment from the regime of Saddam Hussein are subject to threats and violence, the Palestinians being on example.
19. With deepening links between the Islamic Republic of Iran and the current Shia-led government coalition in Iraq as well as links between the Iranian government and Shia-based militias, there is a growing concern that the safety of the ex-PMOI refugees is increasingly at risk. In a meeting with UNHCR in Jordan in August 2006, the Iraqi authorities stated their intention to expel PMOI/NLA and former PMOI/NLA members from Iraq within six months. In December 2007 UNHCR was informed that in recent months, threats had been made against the residents of Camp Al-Ashraf... While these credible threats have not been directed towards the refugees at the ARC, but rather at those being maintained at camp Al-Ashraf, UNHCR considers the refugees at the ARC to be in similar danger given their shared past affiliation with the PMOI/NLA. ...
23. Given the changes in bilateral relations between governments of Iraq and Iran noted above, as well as the perceived affiliation of ex-PMOI members with the former regime, local integration in Iraq, the country of asylum, is not a feasible durable solution for these refugees. This applies equally to the Northern Kurdish governorates (KRG). KRG also holds a hostile view towards former PMOI/NLA members given the group's perceived connections to the former regime and refused to consider further UNHCR's relocation request. ...
24. UNHCR currently does not facilitate or promote voluntary repatriation of refugees from Iraq to Iran. In the past International Committee of Red Cross (“ICRC”) facilitated with limited logistic support the voluntary repatriation to Iran of some 200 PMOI/NLA members from camp Al-Ashraf who transited through the ARC. Very little independent information is available as to what happened to these individuals, as neither ICRC nor UNHCR is able to monitor the situation of returnees. UNHCR received, however, credible reports that some of the returnees were forced/“invited” to make public confessions and accusations against the PMOI/NLA on television after their return. An organisation of victims of the PMOI composed of persons presented as former PMOI members (including returnees) called Nejat has been reporting to UNHCR that returnees did not face any problem upon return to Iran. None of these returnees either from Camp Al-Ashraf or from the ARC has approached any UNHCR offices. The Iranian authorities continue to designate in the media the PMOI members as “Monafeqin” (i.e. the “Hypocrites”).
25. Reportedly, at one point in time Iran was prepared to accept the return of PMOI members from Iraq, with the exception of some 50 high profile members, if they expressed regrets for their past acts. This promise of amnesty, however, has not been officially reiterated by President Ahmadinajad. In 2004, in a letter from UNHCR to the Government of the Islamic Republic of Iran, UNHCR asked the Iranian authorities to confirm this verbally-declared amnesty as well as to provide unhindered and direct access by UNHCR to returnees. No reply was ever received. UNHCR has reiterated this request without success to the Government of Iran on various occasions in 2006, 2007 and most recently on 24 January 2008. Despite separation from family members remaining in Iran and years of limited freedom of movement in the ARC, the vast majority of former PMOI/NLA members preferred to remain at the ARC in Iraq, supervised by Multinational Forces – Iraq (“MNF-I”), than return to Iran. Recently, some have risked travelling to Northern Iraq or Turkey so as to get out of the ARC and seek asylum elsewhere. Some of those who tried to go to Turkey have been forcibly returned to Iraq. ...
31. Since November 2007, the US military has been facilitating ex-PMOI refugees to depart the ARC. Most of these refugees travelled to Northern Iraq, while some attempted to enter Turkey with one way laissez passez issued by Iraqi authorities with the assistance of the US military. Some of these refugees were also in possession of letters signed by a US Army Colonel, stating that:
“Mr. or Mrs. ... will be travelling out of the country with a Government of Iraq issued Laissez Passez and is authorised to do so. It is his/her intent to obtain a visa at the border and cross into Turkey. This action has been approved by MNF-I and the US Embassy Baghdad, in conjunction with the Government of Iraq.”
32. UNHCR does not support the issuance of these documents and is concerned that refugees leaving the ARC based on inaccurate information that they will be accommodated by UNHCR in northern Iraq or that they will be able to acquire visas to and enter Turkey. This is not the case. Refugees who leave ARC are at risk of being stranded in northern Iraq or subject to detention and deportation from another country, most notably Turkey. More than 35 ex-PMOI refugees have been detained in Turkey after leaving the ARC and entering Turkey illegally. 19 of them were deported to northern Iraq where many were detained in Mosul. 10 remain in detention in Turkey in precarious circumstances. Some former refugees are reportedly missing and UNHCR fears that they may have been deported to their country of origin. Another refugee from the ARC who arrived illegally to Germany has been allowed by a court decision to enter the country and to be protected against refoulement. ...
34. On 19 January 2008 Iran and Turkey signed a memorandum of understanding to enhance security cooperation and joint efforts to officially oppose drug trafficking and terrorism. UNHCR is concerned that such an agreement could be used to refoule former ARC refugees stranded in detention in Turkey or at its borders. ...”
B. Press release issued by the UNHCR on 25 April 2008
“UNHCR deplores refugee expulsion by Turkey which resulted in four deaths
GENEVA - Four men, including an Iranian refugee, drowned after a group of 18 people were forced to cross a fast-flowing river by the Turkish police at Turkey's south-eastern border with Iraq, witnesses have told the UN refugee agency.
The incident took place on Wednesday 23 April at an unpatrolled stretch of the border, near the Habur (Silopi) official border crossing in Sirnak province in south-eastern Turkey. According to eyewitnesses, the Turkish authorities had earlier attempted to forcibly deport 60 people of various nationalities to Iraq through the official border crossing. The Iraqi border authorities allowed 42 Iraqis to enter the country, but refused to admit 18 Iranian and Syrian nationals. The Turkish police then took the 18, which included five Iranian refugees recognised by UNHCR, to a place where a river separates the two countries, and forced them to swim across.
According to the witnesses interviewed by UNHCR, four persons, including a refugee from Iran, were swept away by the strong river current and drowned. Their bodies could not be recovered.
UNHCR is in contact with the surviving refugees through its office in Erbil, in northern Iraq. They are deeply traumatized by the experience, UNHCR staff reported.
UNHCR had sent previous communications to the Turkish government requesting that the five Iranian refugees, who had all been detained after attempting to cross into Greece in an irregular manner, not be deported. Despite UNHCR's requests, the refugees were put in a bus, together with other persons to be deported, and taken on a 23 hour trip to the Iraqi border last Tuesday. UNHCR had expressed in a number of communications sent to the Government of Turkey that it did not consider Iraq a safe country of asylum for these refugees.
UNHCR is seeking clarification from the Government of Turkey on the circumstances surrounding the forced expulsion of the refugees and the tragic loss of life.”
“...Human Rights Watch, on 27 February 2006, reported that:
'Hojat Zamani, a member of the opposition Mojahedin Khalq Organization outlawed in Iran, was executed on February 7 at Karaj's Gohardasht prison, Human Rights Watch said today, after a trial that did not meet international standards.'
Amnesty International, in a public statement dated 27 February 2006, said:
'Executions in Iran continue at an alarming rate. Amnesty International recorded 94 executions in 2005, although the true figure is likely to be much higher. So far in 2006, it has recorded as many as 28 executions. Most of the victims were sentenced for crimes such as murder but one of those recently executed was a political prisoner, Hojjat Zamani, a member of the People's Mojahedin Organization of Iran (PMOI), who was forcibly returned to Iran from Turkey in 2003 and sentenced to death in 2004 after conviction [for] involvement in a bomb explosion in Tehran in 1988 which killed 3 people (see Urgent Actions AI Index EUR 44/025/2003, 5 November 2003 and MDE 13/032/2004). He was taken from his cell in Gohar Dasht prison and executed on 7 February 2006, though his execution was officially confirmed by Iranian officials only on 21 February.
Hojjat Zamani's execution has fuelled fears that other political prisoners may be at risk of imminent execution. According to unconfirmed reports that have been circulating since early February, a number of political and other prisoners who are under sentence of death have been told by prison officials that they would be executed if Iran should be referred to the UN Security Council over the resumption of its nuclear programme... These [prisoners] are said to have included other members of the PMOI, which is an illegal organization in Iran. The National Council of Resistance of Iran, of which the PMOI is a member, was the source of evidence in 2002 revealing Iran's nuclear programme to the outside world.'
According to the Danish FFM of January 2005:
'UNHCR in Teheran reported that 58 members of the Iranian opposition organisation MKO had voluntarily returned to Iran. Their return was organised by ICRC. UNHCR had no information indicating that these persons had been legally persecuted.
UNHCR in Ankara reported that non-profiled members of Mujaheddin Khalq had returned to Iran but had no information indicating that these persons had been persecuted or legally persecuted.
The Organisation for defending Victims of Violence's international department reported that many members of Mujaheddin Khalq had returned to Iran without experiencing problems of a penal character.
IOM in Teheran confirmed that members of Mujaheddin Khalq had returned to Iran, mainly from Iraq. The source was not aware that they had been subjected to any reprisals. IOM had monitored the return of a number of failed asylum seekers from the UK. According to the source, none had been persecuted.'
The USSD report for 2007 states that: 'There were reports that the government held some persons in prison for years charged with sympathizing with outlawed groups, such as the terrorist organization, the Mujahedin-e-Khalq (MEK)... The government offered amnesty to rank-and-file members of the Iranian terrorist organization, MEK, residing outside the country. Subsequently, the ICRC assisted with voluntarily repatriating at least 12 MEK affiliates in Iraq under MNF-I protective supervision during the year.' ...”
D. Press releases issued by Amnesty International
49. In two press releases issued on 7 September 2006 and 20 March 2009, Amnesty International reported that a number of political prisoners in Iran, including two PMOI members, namely Valiollah Feyz Mahdavi and Abdolreza Rajabi, had died in custody in suspicious circumstances and that no effective investigation had been conducted into their death.
E. Recent developments regarding PMOI members in Iraq
Subsequently, on 14 April 2009 the Chair of the Committee on Migration, Refugees and Population of the Parliamentary Assembly of the Council of Europe (PACE) issued a press statement and urged the Iraqi government not to forcibly return to Iran the residents of Al-Ashraf Camp who would risk persecution there, not to expel these persons to another country that might send them to Iran afterwards, nor to forcibly displace them inside Iraq.2
On 24 April 2009 the European Parliament adopted a resolution3 on the humanitarian situation of Al-Ashraf Camp residents which reads, in so far as relevant, as follows:
“The European Parliament
... B. - whereas in 2003 US forces in Iraq disarmed Camp Ashraf's residents and provided them with protection, those residents having been designated "protected persons" under the Geneva Conventions, ...
D. - whereas following the conclusion of the US/Iraqi Status of Forces Agreement, control of Camp Ashraf was transferred to the Iraqi security forces as of 1 January 2009,
E. - whereas, according to recent statements reportedly made by the Iraqi National Security Advisor, the authorities intend gradually to make the continued presence of the Camp Ashraf residents "intolerable", and whereas he reportedly also referred to their expulsion/extradition and/or their forcible displacement inside Iraq,
1. - Urges the Iraqi Prime Minister to ensure that no action is taken by the Iraqi authorities which violates the human rights of the Camp Ashraf residents and to clarify the Iraqi government's intentions towards them; calls on the Iraqi authorities to protect the lives and the physical and moral integrity of the Camp Ashraf residents and to treat them in accordance with obligations under the Geneva Conventions, in particular by refraining from forcibly displacing, deporting, expelling or repatriating them in violation of the principle of non-refoulement;
2. - Respecting the individual wishes of anyone living in Camp Ashraf as regards his or her future, considers that those living in Camp Ashraf and other Iranian nationals who currently reside in Iraq having left Iran for political reasons could be at risk of serious human rights violations if they were to be returned involuntarily to Iran, and insists that no person should be returned, either directly or via a third country, to a situation where he or she would be at risk of torture or other serious human rights abuses; ...”
Meanwhile, on 26 January 2009 the Council of the European Union decided to exclude the PMOI from the list of individuals, groups and entities involved in terrorist acts, in accordance with the judgment of the European Court of Justice dated 4 December 2008 in Case T-284/08.
F. Report of the United Nations Working Group on Arbitrary Detention
“... 86. Foreigners who are in Turkey without the documents necessary to allow them to stay lawfully in the country can be, and are in great numbers, arrested by the police or the Gendarmerie. After a brief period in police custody they are taken to a so-called “guest house” for foreigners run by the Ministry of the Interior, where they are - in spite of the welcoming name of these institutions - to all effect locked up awaiting expulsion. However, no written decision to this effect is issued to them.
87. Article 23 of the Law on the Residence of Foreign Citizens, providing that foreigners who have been issued an expulsion decision but cannot be immediately expelled, shall reside in a location assigned to them by the Ministry of the Interior, does not constitute a sufficient legal basis for this practice. Neither this law, nor any other, provides further details as to the preconditions for, modalities of or maximum duration of assignment to a residence for foreigners awaiting expulsion. As this is not a measure adopted within the criminal process, judges of the peace have no jurisdiction to rule on challenges against such measures. It would appear that administrative tribunals are competent. However, this remedy appears not to be exercised in practice. Challenges to the expulsion decision may have an impact also on the question of detention, but they simply do not constitute the remedy against the fact of deprivation of liberty required by article 9 (4) of ICCPR.
88. It is important to stress that this has nothing to do with the criminal proceedings which can be initiated against a foreigner for illegal entry into Turkey. Such proceedings are not regularly pursued and, in case of a guilty finding, result in a fine, not deprivation of liberty.
89. Another aggravating aspect is that, according to information provided by the police, not only foreigners who are actually the subject of an expulsion decision are assigned to guest houses (i.e. deprived of their liberty), but also so assigned are many who - in the opinion of the police - are likely to receive an unfavourable outcome in expulsion proceedings initiated against them. This practice violates even article 23 of the Law on the Residence of Foreign Citizens.
90. To sum up, there is no remedy for the foreigners awaiting expulsion to challenge their detention, and no control over the detention by a judicial authority. It may be true that in some cases the person to be deported spends only a few days at the guest house. But in others, where there are difficulties obtaining valid travel documents (as appears to be the case for many African migrants), the detention can last months and even more than a year...”
I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS AND ADMISSIBILITY
A. The alleged lack of victim status
B. The alleged failure to exhaust domestic remedies
C. Compliance with other admissibility criteria
II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. The parties' submissions
1. The Government
2. The applicants
B. The third party's submissions
C. The Court's assessment
1. General principles
2. Application of the above principles to the present case
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
A. The parties' submissions
1. The Government
2. The applicants
B. The third party's submissions
C. The Court's assessment
IV. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
A. The parties' submissions
B. The Court's assessment
1. Existence of a deprivation of liberty
2. Compliance with Article 5 § 1
The Court concludes that there has been a violation of Article 5 § 1 of the Convention.
3. Compliance with Article 5 § 2
There has therefore been a violation of Article 5 § 2 of the Convention.
3. Compliance with Article 5 § 4
There has therefore been a violation of Article 5 § 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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. Pecuniary Damage
B. Non-pecuniary Damage
C. Costs and expenses
D. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(a) that the respondent State is to pay the applicants within three months from 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 at the date of settlement:
(i) EUR 20,000 (twenty thousand euros) each in respect of non-pecuniary damage, plus any tax that may be chargeable;
(ii) EUR 3,500 (three thousand five hundred euros) jointly in respect of costs and expenses, less the EUR 850 (eight hundred and fifty euros), granted by way of legal aid, plus any tax that may be chargeable to the applicants;
(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;
Done in English, and notified in writing on 22 September 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
1. The judgment is not final yet.