ECtHR - Khaldarov v. Turkey, Application no. 23619/11, 5 September 2017

Facts:

The applicant, an Uzbek national, arrived in Turkey in April 2008 on a visa valid for one month. Two years later, in April 2010, he was taken into police custody for three days at Istanbul Atatürk Airport for being suspected of lacking a valid identity document and of illegal entry into Turkey. According to the information at the ECtHR’s disposal, he was informed about the reasons for police custody. Subsequently, the applicant was transferred to Istanbul Kumkapi Removal Centre, where he was held in conditions which he described as severely overcrowded and without provision of outdoor exercise. In June 2010, the Istanbul Magistrate’s Court denied the applicant’s request for release on the ground that the Court lacked jurisdiction, as the detention was not based on a criminal investigation and it was ruled that such requests had to be brought before the administrative courts. The applicant then applied for asylum and was granted a temporary residence permit as an asylum seeker and was released from Kumkapi Removal Centre on the same day. In 2016, the applicant was issued a deportation order and was then detained at Izmir Isikkent Removal Centre since September 2016 with a view to expulsion.

Decision & reasoning:

Violation of Article 5 ECHR

The applicant complained that his detention was unlawful under Article 5 § 1 ECHR and that he had no right to obtain compensation under domestic law as foreseen in Article 5 § 5 ECHR.

The Court recalled that it had examined similar grievances in recent cases in which it found violations of Article 5 §§ 1, 5 ECHR due to the lack of clear legal provisions in Turkish law on procedures for ordering the detention of foreigners and providing remedies to receive compensation and referred to its rulings in Abdolkhani and Karimnia (§§ 128-135), Yarashonen (§§ 48, 50), Musaev (§§ 39, 41) and Aliev (§§ 67, 69). The Court therefore reaffirms the existence of violations of Article 5 §§ 1, 5 ECHR.

Under Article 5 §§ 2, 3, 4 ECHR, the applicant claimed that he has not been duly informed of the reasons for his detention and that he could not have his detention reviewed by a court.

The Turkish Government held that the applicant was informed of the reasons when he was held in police custody (lack of valid identity document and illegal entry into Turkey).

The Court then distinguishes between the three-days police custody for the purposes of a criminal investigation and the detention in Istanbul Kumkapi Removal Centre which served immigration control purposes. For the latter, the Court held that there was no documentation stating that the applicant was informed of the grounds for his continued detention.

The Court then concluded from the fact that the applicant was not informed of the reasons of detention, that he was also deprived of the right to appeal against the detention under Article 5 § 4 ECHR. The Court therefore found a violation of Article 5 §§ 2, 4 ECHR.

Violation of Article 3 ECHR

The Court distinguishes the alleged violation of Article 3 ECHR in two different situations: the detention conditions in Kumkapi Removal Centre and the ones at Istanbul Atatürk Airport. For the latter, the Court declared the complaint inadmissible on the ground that it is manifestly ill-founded due to absence of detailed submissions by the applicant.

In the first situation, the Court rejected the Turkish Governments’ position that the applicant did not exhaust domestic remedies as required by Article 35 § 1 ECHR and could have applied to the administrative or judicial authorities to seek compensation. The Court held that the Turkish Government could not provide any examples where recourse to administrative or judicial authorities has led to an improvement of detention conditions or the award of compensation and referred to its previous judgments in Yarashonen (§ 66), Musaev (§ 55), Aliev (§ 67).

In the merits of Article 3 ECHR allegations, the Court recalled that it already found a violation of Article 3 ECHR with regards to the detention conditions in Kumkapi Removal Centre (overcrowding and lack of access to outdoor exercise) in Yarashonen (§ 81), Musaev (§ 61), Alimov (§ 85). The Court, there, based its finding on materials provided by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the members of the Grand National Assembly of Turkey and the UN Special Rapporteur on the human rights of migrants. The Court held that the Turkish Government did not present any evidence that would have justified a re-consideration of previous decisions and, therefore, found a violation of Article 3 ECHR.

Outcome:

The Court found, unanimously, that there has been a violation of Article 5 §§ 1, 2, 4, 5 and Article 3 ECHR. Therefore, Turkey is to pay the applicant EUR 10 000 in respect of non-pecuniary damage and EUR 3026 in respect of costs and expenses.

Observations/comments:

Case summary written by Chad Heimrich (LLM candidate, Queen Mary University of London).