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ALIPOUR AND HOSSEINZADGAN v. TURKEY - 6909/08 [2010] ECHR 1108 (13 July 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1108.html
Cite as:
[2010] ECHR 1108
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SECOND
SECTION
CASE OF ALIPOUR AND HOSSEINZADGAN v. TURKEY
(Applications
nos. 6909/08, 12792/08 and 28960/08)
JUDGMENT
STRASBOURG
13
July 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 Alipour and
Hosseinzadgan 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 Stanley Naismith, Deputy
Section Registrar,
Having
deliberated in private on 22 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in three applications (nos. 6909/08, 12792/08 and
28960/08) 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 two Iranian
nationals, Mr Mohammad Jaber Alipour and Mrs Raha
Hosseinzadgan (“the applicants”), on 8 February,
14 March and 12 May 2008 respectively. Applications nos. 6909/08 and
12792/08 were brought by the first and second applicants
respectively. Application no. 28960/08 was brought by both
applicants.
The
applicants were represented by Mr L. Kanat, a lawyer practising in
Ankara. The Turkish Government (“the Government”) were
represented by their Agent.
On
8 February 2008 the President of the Chamber to which the
applications had been 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 Mr Mohammad Jaber Alipour should not be deported
to Iran before 28 February 2008. On 22 February 2008 the
President of the Chamber decided to extend until further notice the
interim measure indicated under Rule 39 of the Rules of Court in
respect of the first applicant. On 14 March 2008 the President
of the Chamber decided to indicate to the Government of Turkey, under
Rule 39 of the Rules of Court, that Mrs Raha
Hosseinzadgan should not be deported to Iran until further
notice.
On
30 April, 18 April and 16 September 2008, respectively, the President
of the Second Section decided to give notice of the applications to
the Government. It was also decided that the admissibility and merits
of the application would be examined together (Article 29 § 3)
and that the case would be given priority (Rule 41).
The
applicants and the Government each filed written observations on the
admissibility and merits of the applications.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicants were born in 1973 and 1978 respectively. They currently
live in Sweden.
A. As regards the first applicant
1. Deportation proceedings and the applicant's
detention
In 1999 and 2000 the first applicant, Mohammad Jaber
Alipour, a veterinary surgeon, opened a veterinary clinic in Iran.
Following the denunciation by the State authorities in Iran on
religious grounds of the feeding of cats and dogs (since keeping pets
was seen as propagating Western culture), the authorities began to
put pressure on the applicant to close down his clinic. As the
applicant failed to do so, the clinic was closed down by the
authorities. Despite this, the applicant continued to be harassed by
State officials.
On
28 November 2000 the applicant arrived in Turkey. He claimed
that he had had to flee Iran as he had been harassed and persecuted
by the State authorities for having opened a veterinary clinic in the
city of Oromoyeh.
In
2004 the applicant's request for asylum was rejected by the
United Nations High Commissioner for
Refugees (UNHCR) and subsequently by the Ministry of the
Interior. The applicant's objection to the Ministry's decision was
also dismissed. While the applicant claimed that he had not been
notified of the outcome of his objection, the Government submitted
that in March 2005 the applicant had gone to the Afyon police
headquarters but refused to be served with the decision dismissing
his objection.
On
6 November 2007 the applicant filed a petition with the Ministry of
the Interior requesting a residence permit on the ground that he
wished to marry an Iranian refugee in Afyon.
On
29 November 2007 the director of the department
responsible for aliens, borders and asylum attached to the General
Police Headquarters requested the Afyon police to apprehend and
deport the applicant as soon as possible. The director's letter gave
the applicant's home address and his mobile telephone number.
On
an unspecified date the UNHCR reopened the applicant's file.
On
10 January 2008 the applicant was arrested by police officers in
Afyon, his city of residence. He claimed that the officers had told
him that he was being arrested with a view to his deportation to
Iran. Although he explained to the police that
his file was under examination by the UNHCR,
he was taken to Ağrı, where he
escaped from the police. The deportation order was not served on him.
The applicant further claimed that, when they had arrested him, the
police had confiscated his passport, with the result that he could
not appoint a lawyer to represent him.
On
12 January 2008 a police director from the Afyon police headquarters
sent a letter to the General Police Headquarters and all provincial
police headquarters. He explained in his letter that the applicant
had gone missing while being deported. Noting that the applicant
might go to the UNHCR's Ankara office for his interview, which was to
be held on 28 January 2008, he asked the police directors to
take all necessary steps to apprehend him.
On
17 January 2008 the UNHCR's Ankara
office interviewed the applicant.
On
6 February 2008 the first applicant was granted refugee status under
the UNHCR's Mandate.
On
22 February 2008 the President of the Second Section decided to
extend until further notice the interim measure
indicated under Rule 39 of the Rules of Court. She also decided to
request the applicant to inform the Court whether he would be
applying to the relevant domestic authorities for his identity
documents, so that his representative could take the necessary legal
steps regarding the deportation order issued in his respect and
request his transfer to a third country following the UNHCR decision
of 6 February 2008 recognising him as a refugee.
On
8 April 2008 the respondent Government informed the Court that on
11 March 2008 the applicant had gone to the Afyon police
headquarters. The applicant had then been placed in the Kırklareli
Aliens' Admission and Accommodation Centre.
On
26 June 2008 the applicant issued his representative with a notarised
power of attorney to represent him in Turkey. Subsequently, on
13 July 2008, the applicant's representative lodged a petition
with the administrative authorities,
seeking the annulment of the decision to hold the applicant in the
Kırklareli Foreigners' Admission and
Accommodation Centre. He subsequently brought a case before the
Ankara Administrative Court requesting the first applicant's release
from the facility .
On
20 March 2009 the Ankara Administrative Court dismissed the request
for suspension of the administrative decision to hold the first
applicant in the Kırklareli
Foreigners' Admission and Accommodation Centre.
The proceedings are currently pending before the same court.
On
24 April 2009, on a request from the UNHCR,
the Government of Sweden accepted the first applicant within the
refugee quota for Sweden. A plane ticket to Stockholm was booked
for the applicant for 27 May 2009. The applicant's transfer
had to be postponed since the national authorities did not authorise
the applicant's release and departure to Sweden.
On
24 and 29 March 2010 the Government and the applicant's
representative informed the Court respectively that
the applicant had left Turkey on 4 March 2010 and arrived in Sweden
where he was granted refugee status.
2. Conditions of detention and medical assistance
(a) The applicant's account
The
applicant submitted that he did not have access to a doctor in the
Kırklareli Foreigners' Admission and
Accommodation Centre. The buildings were old and had not been
renovated. The rooms were crowded. The bedding was also old and
dirty. The toilets were very dirty and were rarely cleaned. The
authorities did not provide proper cleaning materials to the
detainees for them to do the cleaning either. The cleaning products
given to the detainees had passed their expiry dates eight to nine
years earlier, thus exposing detainees to the risk of several
diseases, in particular cancer, if they used them. As a result of the
poor detention conditions, the applicant suffered from skin diseases
and infections. The applicant submitted digital photographs of
various locations in the detention centre such as the bedrooms,
kitchen and toilets, in support of his allegations. In one room there
were two bunk beds on which there were pillows and blankets. There
was no bed linen on the beds. In another room there were two beds
with bed linen, pillows and blankets. The photographs of the kitchen
sinks and cookers showed that the latter were unusable. Another
photograph showed that there were four sinks in the bathroom. Inside,
the toilets were partially covered with a dark substance. Photographs
of the cleaning products that had labels in the
Cyrillic alphabet showed that their dates had expired nine to ten
years ago.
On
13 July 2008, when the applicant's representative lodged a petition
with General Police Headquarters requesting that the applicant be
released (see paragraph 19 above), he also asked that the applicant
be provided with medical assistance. In his petition, the applicant's
representative further noted that the conditions of detention in the
Kırklareli Foreigners' Admission and Accommodation Centre were
inhuman and constituted a breach of Article 3 of the Convention.
On
27 August 2008 the applicant, together with four other persons
including the second applicant, started a hunger strike to protest
about his placement and the physical conditions in the Centre.
Furthermore,
although the applicant was suffering from a hernia and required an
operation, the authorities did not take any steps to provide him with
medical treatment. He received no reply to his requests to be
operated on for his condition.
(b) The Government's account
The
Government submitted that all the bedrooms in the Kırklareli
Foreigners' Admission and Accommodation Centre, which was not a
detention centre, were equipped with cleaning and personal hygiene
items, namely soap, towels and other similar items; the bedding was
changed every week. Hygiene standards were maintained in the kitchen
and the cafeteria and the food provided in the facility was the same
as that provided to students in police academies. They noted that the
applicant and the other foreign nationals were not allowed to cook in
the Centre. The Government contended that hot water was provided at
least two days a week and that the sanitary facilities were checked
frequently.
The
Government further maintained that the applicant had been provided
with medical assistance on nineteen occasions between 21 April and
11 November 2008 while he was being held in the Kırklareli
Centre and had undergone an operation. According to the documents
submitted by the Government, the applicant had undergone orthopaedic
surgery on 10 October 2008 in relation to an old thighbone
fracture in the Kırklareli State Hospital at his request. He was
hospitalised between 9 and 17 October 2008 and a femoral implant
which had been inserted following the accident was taken out. The
applicant was examined by a general practitioner in relation to his
muscle pains and pain related to a thighbone fracture which he
suffered due to an old traffic accident that he had had in 1998. He
was also examined by an ophthalmologist, a neurologist and a dentist
and prescribed medication or treatment.
B. As regards the second applicant
In
2002, while living in Iran, the applicant had a relationship with a
man, as a result of which she was tortured by her father. In
2004 she met another man who was an asylum seeker in Turkey. As she
was being forced to marry her cousin, she left Iran with this man and
arrived in Turkey on 28 August 2004. In September 2004 they
married in Turkey. In December 2007 the applicant obtained a divorce
as her husband, a drug addict, had forced her into prostitution.
On
unspecified dates the applicant applied to the Ministry of the
Interior and the UNHCR requesting temporary asylum and refugee status
respectively.
On
8 January 2008 the UNHCR's Ankara office recognised the applicant as
a refugee.
On
14 March 2008 the applicant was notified that her request for
temporary asylum had been rejected by the Ministry of the Interior.
On the same day she was arrested by police officers from the Burdur
police headquarters.
On
an unspecified date, following the President's decision to apply Rule
39 of the Rules of Court, the applicant was placed in the Kırklareli
Foreigners' Admission and Accommodation Centre.
On
13 July 2008 the applicant's representative lodged a petition with
the General Police Headquarters, requesting that the applicant be
released. In his petition, the applicant's representative further
noted that the conditions of detention in the Kırklareli
Foreigners' Admission and Accommodation Centre were inhuman.
On
27 August 2008 the applicant, together with four other persons
including the first applicant, started a hunger strike to protest
about her placement and the physical conditions in the Centre.
In
the meantime, on 8 July 2008, the applicant issued her representative
with a notarised power of attorney to represent
her in Turkey. Subsequently, the representative brought a case before
the Ankara Administrative Court requesting the applicant's release
from the facility where she was being held, noting that the applicant
was due to have an interview with the Canadian Consulate with a view
to obtaining refugee status in Canada. The lawyer also asked the
court to order a stay of execution of the applicant's
detention.
On
6 March 2009 the Ankara Administrative Court suspended the
administrative decision to hold the second applicant in the
Kırklareli Foreigners' Admission and
Accommodation Centre and ordered her release with a view to
facilitating her interview at the Canadian Consulate. The court also
ordered that the applicant be granted a residence permit until her
transfer to Canada. The applicant was subsequently transferred to
Eskişehir.
On
an unspecified date the Government of Sweden accepted the
second applicant within the refugee quota for Sweden. A plane
ticket to Sweden was booked for the applicant for 10 August 2009.
On
24 July 2009 the Ministry of the Interior authorised the applicant's
departure from Turkey to Sweden.
On
an unspecified date the applicant left Turkey and went to Sweden.
II. RELEVANT LAW AND PRACTICE
A. Domestic law and practice
A
description of the relevant domestic law and practice can be found in
Abdolkhani and Karimnia v. Turkey
(no. 30471/08, §§ 29-45, 22 September 2009).
B. International and national material
The
CPT Standards (the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment) concerning the
conditions of detention of foreign nationals (see the CPT standards,
document no. CPT/Inf/E (2002) 1- Rev. 2006, page 41) provide, in
so far as relevant, as follows:
“...In the view of the CPT ... where it is deemed
necessary to deprive persons of their liberty for an extended period
under aliens' legislation, they should be accommodated in centres
specifically designed for that purpose...
Obviously, such centres should provide accommodation
which is adequately furnished, clean and in a good state of
repair, and which offers sufficient living space for the numbers
involved. Further, care should be taken in the design and layout of
the premises to avoid as far as possible any impression of a carceral
environment. As regards regime activities, they should include
outdoor exercise, access to a day room and to radio/television and
newspapers/magazines, as well as other appropriate means of
recreation (e.g. board games, table tennis). The longer the period
for which persons are detained, the more developed should be the
activities which are offered to them...”
In
June 2008 Human Rights Watch visited three Admission and
Accommodation Centres in Turkey, including the Centre in Kırklareli.
The relevant extracts from the report entitled “Stuck in a
Revolving Door” published by Human Rights Watch on 6 November
2008 read as follows:
“...The Kırklareli Gaziosmanpaşa Refugee
Camp (hereafter Kırklareli) has had a long history as an actual
refugee camp. In 1989 it was a safe haven for ethnic Turks
fleeing Bulgaria; in 1992, a shelter for refugees from Bosnia; and in
1999, a place of refuge for Kosovar Albanians. It can no longer
be described, truthfully, as a refugee camp, however. It is
rather a detention centre for migrants, some of whom may indeed be
refugees, but not refugees being protected from persecution, but
rather refugees that Turkey is seeking to remove.
At the time of Human Rights Watch's visit, Kırklareli
held 174 detainees, including four women and the four-year-old child
of one of the women.
Although the men are locked away in a long barracks
building, they were freely wandering around the outdoor grounds of
the fenced-in facility during the Human Rights Watch visit.
They appeared to be allowed to go outside the barracks during the
afternoons. The facility is surrounded by a chain-link fence
topped with barbed wire. Signs of its history as a former
refugee camp are abundant in the form of old unused shelters with
faded UNHCR logos and an overgrown soccer field that have not been
used in many years, despite a rather comical attempt by the
Kırklareli administrator to give Human Rights a guided tour
intended to show that old classrooms and recreational facilities are
still being used by the detainees.
The women and child were housed in a separate building
that the women told Human Rights Watch they had recently been asked
to clean prior to a visit by another delegation. The
administrator showed Human Rights Watch a large-screen television set
in one of the women's private rooms, but failed to note that the TV
was not plugged in and didn't work at all. Although the men are
allowed to leave their barracks during most afternoons, the guards
tell the women that they are not allowed to leave their building.
"The door is kept open to allow the child to come and go, but we
are not allowed to walk out the door," said a 25-year-old
Iranian woman.
Both men and women at Kırklareli complained about
the poor quality and small quantity of food. A man claiming to
be Burmese said, "The food is not good. It is not fit for
humans, and it is not enough. Nothing happens if we complain.
The guards say, 'If you don't like the food, go to the market and buy
your own.'"
The main complaint, however, is that the detainees are
not informed how long they will remain in detention. Human
Rights Watch spoke privately with a man who appeared to be an
informal leader of the "Burmese" at Kırklareli.
He said that the Burmese numbered 160 of the 174 detainees in the
camp and that most, including him, had already been held there for
nine months and had no idea how much longer they would stay there.
"Just tell us what to do," he said. "Give us a
sentence. If they let us leave, we will work and feed our
families. Let us leave or kill us.”
Even though the conditions at Kırklareli did not
appear to be nearly as bad as at Edirne, tensions between detainees
and guards were very high. The camp administrator told Human
Rights Watch, "Despite the good conditions here, there is an
enmity towards us."
On the night of the day after the Human Rights Watch
visit there was a riot at Kırklareli. The causes of the
riot and the response of the security forces were under investigation
when Human Rights Watch left the country. In the course of
putting down the disturbance, Turkish security forces shot and killed
one of the detainees, a young man of unknown nationality who Human
Rights Watch had talked to at length...”
On
11 June 2008 at around midnight a riot broke
out in the Kırklareli Foreigners' Admission and
Accommodation Centre. During the riot an asylum seeker died and
another asylum seeker and two police officers were wounded.
Subsequent to the riot, the Organisation for Human Rights and
Solidarity for Oppressed People (Mazlum-Der), a human rights
organisation based in Turkey, made a visit to the Centre in order to
assess the situation there. Within the context of this visit,
Mazlum-Der interviewed persons held in the Centre, the
Kırklareli Governor, the director of the Kırklareli Centre
and one of the officers who had been injured. The Governor stated,
inter alia, that the authorities were doing their best to meet
the needs of the persons held in the Centre. The director also stated
that a high standard of living was maintained in the Centre.
After
the start of the hunger strike by five persons held in the Kırklareli
Foreigners' Admission and Accommodation Centre, including the
applicants, Mazlum-Der made a second visit to the Centre on 3
September 2008 in order to interview the persons concerned and to
observe the living conditions in the Centre. According to the report
published by Mazlum-Der, they were not allowed to visit the
inside of the Centre where foreign nationals were held. They were,
however, able to interview the applicant and the other four persons,
who maintained that there had been problems regarding the quality of
food provided by the authorities in the Centre and also regarding
hygiene, access to medical care and common living space.
THE LAW
I. AS REGARDS THE APPLICANT RAHA
HOSSEINZADGAN
The
Court notes that on 1 June 2009 the applicants' representative
informed the Court that the second applicant no longer wished to
proceed with application no. 12792/08 and application no. 28960/08.
The representative noted that the second applicant had decided to
withdraw her applications as she had been granted refugee status by
the Swedish Government.
The
Court therefore concludes that it is no longer justified to continue
the examination of the applications brought by Mrs Raha Hosseinzadgan
within the meaning of Article 37 § 1 (c) of the
Convention. Furthermore, the Court finds no reasons of a general
character, as defined in Article 37 § 1 in fine, which
would require the continued examination of this part of the
applications by virtue of that Article. It therefore decides to
strike application no. 12792/08 and application no. 28960/08 in
respect of Mrs Raha Hosseinzadgan out of its list of cases.
II. AS REGARDS THE APPLICANT MOHAMMAD JABER ALIPOUR
A. Joinder
Having
regard to the subject-matter of the applications and the identity of
the applicant, the Court finds it appropriate to join applications
nos. 6909/08 and 28960/08 in so far as the latter was brought by
Mr Mohammad Jaber Alipour.
B. Alleged violation of Articles 3 and 13 of the
Convention in relation to the deportation proceedings
Without
relying on any Article of the Convention, the first applicant
complained that his removal to Iran would
expose him to a real risk of death or ill treatment. He further
submitted under Article 1 of Protocol No. 7 that he had not been
served with the deportation order but had been taken immediately to
the Iranian border, thus depriving him of the opportunity to
challenge the decision to deport him before the administrative
courts. The Court considers that these complaints should be examined
from the standpoint of Articles 3 and 13 of the Convention.
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,
the applicant was released and granted the authorisation to go to
Sweden. Finally, on 4 March 2010 the applicant left Turkey and
arrived in Sweden. In these circumstances, the Court considers that
the applicant can no longer claim to be a victim of a violation of
Articles 3 and 13 of the Convention, within the meaning of Article 34
(see mutatis mutandis, Mohammedi v. Turkey
(dec.), no. 3373/06, 30 August 2007; Ayashi v. Turkey
(dec.), no. 3083/07, 18 November 2008; Ranjbar and
Others v. Turkey,
no. 37040/07, §§ 26-27, 13 April 2010).
It
follows that this part of the application is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and
4.
C. Alleged violation of Article 5 § 1 of the
Convention in connection with the applicant's detention
The
applicant alleged under Article 5 of the Convention that his
detention in the Kırklareli
Foreigners' Admission and Accommodation Centre was
unlawful. He maintained in this connection that he had not been
served with any decision concerning his detention.
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
The
Government submitted, on 10 March 2009, that the applicant's
placement in the Kırklareli Foreigners' Admission and
Accommodation Centre was based on section 23 of
Law no. 5683 and section 4 of Law no. 5682 and that
the applicant was not in detention. In their further submissions
dated 15 September 2009, the Government contended that he was
being held there pending the deportation
proceedings in accordance with Article 5 § 1 (f) of the
Convention.
The
applicant submitted that his detention did not have a sufficient
legal basis in domestic law since the aforementioned provisions of
domestic law concerned the residence of foreign nationals in Turkey,
whereas he was being held.
The
Court reiterates that it has already examined the same
grievance in the case of Abdolkhani and
Karimnia (cited above, §§ 125-135). It found
that the placement of the applicants in the
Kırklareli Foreigners' Admission and Accommodation Centre in
that case 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 had been 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. Moreover, the Court finds it
regrettable that the national authorities failed to secure the
applicant's speedy release from the Kırklareli Foreigners'
Admission and Accommodation Centre to enable an earlier departure for
Sweden once he had been granted refugee status there.
In
view of the above, the Court concludes that there has been a
violation of Article 5 § 1 of the Convention.
D. Alleged violations of Article 3 of the Convention in
connection with the applicant's detention
Relying
on Article 3 of the Convention, the applicant complained about the
material conditions in the Kırklareli Aliens' Admission and
Accommodation Centre and alleged that no medical assistance was
provided there.
1. Medical assistance
The
Government submitted that the applicant was provided with the
requisite medical assistance for his health and well-being. In
support of their claim, the Government submitted a number of
documents demonstrating that the applicant had been examined by
doctors and subsequently underwent orthopaedic
surgery at his request.
The
Court reiterates that Article 3 requires that the health and
well being of detained persons should be adequately secured by,
among other things, providing them with the requisite medical
assistance (see, mutatis mutandis, Kudła v. Poland
[GC], no. 30210/96, § 94, ECHR 2000 XI). In the present
case, the Court observes, at the outset, that the applicant did not
submit any evidence in support of his allegations that he had
suffered from any skin disease or infection. Furthermore, he did not
challenge the Government's submissions that he had been provided with
sufficient medical assistance. The Court also observes that, between
21 April and 11 November 2008,
the applicant underwent a number of medical examinations while
he was being held in the Kırklareli Centre and received medical
treatment appropriate to his health problems.
In
particular, he was examined by a general practitioner in relation to
his muscle pains and pain related to a thighbone fracture which he
suffered due to an old traffic accident that he had had in 1998. He
was also examined by an ophthalmologist, a neurologist and a dentist.
On each occasion, he was prescribed medication or treatment.
The applicant underwent an operation in the Kırklareli
State Hospital on 10 October 2008 in relation to the old
thighbone fracture. He was hospitalised between 9 and 17 October 2008
and a femoral implant which had been inserted following the accident
was taken out (see paragraph 28 above).
Given
that the authorities ensured that the applicant received sufficiently
detailed medical examinations and that he was provided with
appropriate treatment, the Court concludes that he did have access to
adequate medical assistance. It therefore concludes that this part of
the application is manifestly ill founded and must be rejected
in accordance with Article 35 §§ 3 and 4
of the Convention.
2. Material conditions
(a) Admissibility
The
Government submitted that this part of the application should
be rejected for failure to exhaust domestic remedies, pursuant
to Article 35 § 1 of the Convention, as the applicant
had failed to lodge a complaint with the national authorities. They
maintained in this connection that the applicant should have applied
to the Governor's Office or the Ministry of the Interior, who would
then have sent officers to inspect the Centre.
The
Court observes at the outset that the applicant explicitly complained
about the material conditions of detention in the Kırklareli
Foreigner's Admission and Accommodation Centre in his petition lodged
with the General Police Headquarters on 13 July 2008 (see paragraph
24 above). He also started a hunger strike in protest against his
detention and the allegedly poor conditions of detention in the
Kırklareli Foreigners' Admission and Accommodation Centre. The
Court further observes that Mazlum-Der published a report
containing interviews with a number of persons detained in the
Kırklareli Foreigners' Admission and Accommodation Centre,
including the applicant, who complained about the poor detention
facilities, as well as with the director of the Centre and the
Kırklareli Governor. According to this report, both the director
of the Centre and the Governor were aware of the allegations
concerning the conditions of detention (see paragraph 44 above). The
Court therefore considers that the administrative authorities had the
opportunity to examine the conditions of the applicant's detention
and, if necessary, to offer redress.
Furthermore,
the Government have not pointed to examples where conditions of
detention were improved following a complaint or an application to
the domestic authorities. The Court is therefore led to conclude, in
the particular circumstances of the present case, 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.
The
Court observes 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 denied the applicant's allegation that the physical
conditions at the Kırklareli Foreigners' Admission and
Accommodation Centre were inhuman. They submitted that the applicant
was being held in satisfactory material conditions in the Centre.
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).
In
the present case, the Court observes at the outset that food for
the applicant and other detainees is provided by the Centre's
management (see paragraph 43 above). Therefore, the Court assumes
that the kitchen of which photographs were submitted to the Court was
not being used by the applicant and other detainees. Thus, in the
Court's view, access to places in the Centre, which are not in use,
such as the kitchen in question, should be restricted.
The
Court further notes that the photographs of the rooms and the
corridor in the Kırklareli Foreigners' Admission and
Accommodation Centre demonstrate that the rooms had natural light.
While it is true that some beds did not have bed linen, given that
the other beds had clean and new bedding on them the Court cannot
reach the conclusion that the management of the Kırklareli
Centre did not provide clean bed linen to the applicant.
The
Court observes that, on the basis of the photographs submitted by the
applicant, there may be two points to criticise as regards
hygiene in the Kırklareli Foreigners' Admission and
Accommodation Centre. The first point is the state of the toilets
(see paragraph 23 above), which should be replaced, and the second is
the presence in the Centre of the cleaning products whose labels were
in the Cyrillic alphabet and whose shelf-life had expired nine to ten
years ago, although it cannot be determined whether they were
actually being used by the detainees.
The
Court is mindful of the fact that the applicant was detained in the
Kırklareli Foreigners' Admission and Accommodation Centre for
more than two years and that his detention might have continued for
an indeterminate period of time in the absence of a procedure in
domestic law setting time limits for such detention, a fact that
has led the Court to find a violation of Article 5 § 1 of the
Convention (see paragraphs 57 and 58 above). The Court accepts that
this uncertainty might have caused feelings of anxiety. The Court is
also aware that the Government failed to submit photographs or a
video of the parts of the Centre where the detainees are
held. Nevertheless, in the Court's view, it has not been
established that the material conditions in the Kırklareli
Foreigners' Admission and Accommodation Centre are so harsh as to
bring them within the scope of Article 3 of the Convention, despite
the shortcomings identified in paragraph 72 above and the possible
feelings of anxiety that the indefinite term of the applicant's
detention may cause.
Accordingly,
there has been no violation of Article 3 on account of the conditions
of detention in the Kırklareli Foreigners' Admission and
Accommodation Centre.
E. 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, costs and expenses
The first applicant claimed 30,000 euros (EUR) in
respect of non-pecuniary damage. He further requested to be released
from the Kırklareli Foreigners' Admission and Accommodation
Centre. The applicant also claimed EUR 7,020 for the costs and
expenses incurred before the domestic courts and the Court. Referring
to the Ankara Bar Association's scale of fees, he claimed EUR 6,520
for his legal representation. He also claimed EUR 500 for
translation, telephone and fax expenditure.
The
Government contested these claims. They submitted that the amount
requested for the alleged non-pecuniary damage was excessive. They
further maintained that the applicant's placement in the Kırklareli
Foreigners' Admission and Accommodation Centre was lawful and in
accordance with Article 5 § 1 (f) of the Convention. Finally,
the Government submitted that only costs actually incurred could be
reimbursed.
As
to the applicant's claim regarding the alleged non-pecuniary damage,
the Court considers that the applicant must have suffered
non pecuniary damage which cannot be compensated solely by the
finding of violation. Having regard to the gravity of the violation
and to equitable considerations, it awards the first applicant EUR
9,000.
As regards the applicant's
request to be released from detention, the Court observes that
subsequent to these submissions, the applicant was released. It
therefore considers that there is no need to make a ruling regarding
this claim.
Finally,
regarding the applicant's claim for costs and expenses, the Court
reiterates that, according to its 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 the applicant has
not provided proof that he actually incurred the costs claimed.
Accordingly, the Court makes no award under this head.
(b) 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
Decides to strike applications
nos. 12792/08 and 28960/08 out of the list in so far as the
latter was brought by the second applicant;
Decides to join applications nos. 6909/08 and
28960/08 in so far as the latter was brought by the first applicant;
Declares admissible the complaint under Article
3 of the Convention (concerning the material conditions of the first
applicant's detention) and the complaint under Article 5 § 1
brought by the first applicant;
Declares the remaining part of the applications
brought by the first applicant inadmissible;
Holds that there has been a violation of Article
5 § 1 of the Convention in respect of the first applicant;
Holds that there has been no violation of
Article 3 of the Convention on account of the material conditions of
detention in the Kırklareli Foreigners' Admission and
Accommodation Centre;
Holds
(a) that the respondent State is to pay the first
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 at 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;
Dismisses the remainder of the first applicant's
claim for just satisfaction.
Done in English, and notified in writing on 13 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
