ECtHR – G.B. and others v. Turkey, 17 October 2019 No. 4633/15

Facts:

The case concerns the administrative detention pending deportation of a mother and her three children, all Russian nationals.

On 17 October 2014, the applicants entered Turkey through the Istanbul Atatürk Airport with a valid visa. On the next day, they were arrested for attempting to illegally cross the Syrian border. Due to this fact, the Kilis governor’s office issued an order for the detention and deportation of the mother.

The family was transferred to the Kumkapı Removal Centre. In the meanwhile, the Istanbul governor’s office issued an order for the mother’s deportation and detention during the expulsion process, which she subsequently challenged before the Istanbul Administrative Court.

It was after that that the family sought international protection from Turkish authorities. Both this request and all subsequent appeals on the matter were rejected. The applicants also lodged multiple applications within the Istanbul Magistrates Court, which were all dismissed.

After their transfer to the Gaziantep Removal Centre, they challenged its lawfulness, this time before the Gaziantep Magistrates’ Court. The Court ended up ruling the unlawfulness of the applicants’ detention, and the family was eventually released.

Decision & reasoning:

According to Article 3 ECHR, the State must ensure the person is detained in conditions which are consistent with respect for human dignity, and the method of executing the detention cannot cause the individual to suffer distress of an intensity exceeding the unavoidable level of suffering inherent in detention. As regards minors, the Court observed that Article 37(c) CRC provides that the State must consider children’s needs when keeping them in detention.

There were already records of violations of Article 3 ECHR on account of the material conditions of detention in the Kumkapı Removal Centre, both from the National Human Rights Institution of Turkey and the CPT, which had remained unresolved. The adverse conditions of detention at this Centre were particularly unsuitable for the applicant children due to their extreme vulnerability and were in breach with international principles on the protection of children. The Court determined that the conditions of the applicants’ detention caused them distress which exceeded the unavoidable level of suffering inherent in detention.

The material conditions at the Gaziantep centre were allegedly worse. The Government had not submitted sufficient material evidence to refute the applicants’ allegations, so the Court found that there had also been a violation of Article 3 ECHR on account of the material conditions in which the applicants were detained here.

The applicants’ complaint regarding the violations of Article 3 ECHR is arguable for the purposes of Article 13 ECHR. The Court had already acknowledged that an individual application before the Constitutional Court can provide an effective remedy for grievances under Article 3 ECHR, and that remedy therefore had to be exhausted before lodging an application with the Court.

Regarding the complaints about inhuman or degrading conditions of detention, the Court had already observed that two types of relief are possible: (i) improvement of the material conditions of detention, and (ii) compensation for the damage on account of such conditions. Once the applicants were released, they should have had an enforceable right to compensation for the violation that had already occurred.

The new Foreigners and International Protection Act (Law no. 6458) does not designate any specific remedies for complaints concerning conditions of detention at foreigners’ removal centres.

The applicants lodged their applications with the Constitutional Court, and subsequently with the Strasbourg Court while they were still being detained, leaving no doubt that they sought immediate relief from the unacceptable conditions in which they were being held. No effective remedies in domestic law provided them that result.

After lodging their application with the Constitutional Court, the applicants continued to be detained in unsuitable conditions for a significant period of time. The Constitutional Court was acting as a first-instance court, so it could have been expected to show the necessary diligence in reviewing the applicants’ complaints. Instead of recognizing the inadequacy of the imprisonment conditions and compensate the applicants, it declared the applicants’ complaint inadmissible for non-exhaustion of domestic remedies, since they did not lodge an action for a full remedy before the administrative courts. They were still being detained at the time of their application to the Constitutional Court, so a purely compensatory remedy available after release could not have provided them with an effective remedy under Article 3 ECHR.

Article 3 requires States to rapidly establish, above a compensatory remedy, an effective mechanism to put an end to the kind of treatment prohibited by this Article. Otherwise, the prospect of future compensation would legitimise severe suffering and weaken the legal obligation on the State to bring its standards of detention into line with the Convention requirements. In this case, the Government did not end the ongoing violation of their rights quickly enough.
 
The ECHR noted that the detention order referred only to the mother, so the family had been arbitrarily detained. As a result, the Court held that the detention of the applicants was contrary to Article 5(1) ECHR. Moreover, the available mechanisms to challenge the family’s detention did not function effectively in these circumstances, which required diligence to ensure a prompt review of lawfulness. The absence of such diligence amounted to a violation of Article 5(4) ECHR.

Outcome:

The Court declared that there has been a violation of Article 3 ECHR on account of both the conditions of detention in the Kumkapı Removal Centre and in the Gaziantep Removal Centre.

The Court ruled in favour of the violation of Article 13 ECHR in conjunction with Article 3, on account of the absence of effective remedies to complain about the conditions of detentions at both Centres.

It also declared that there has been a violation of Articles 5 § 1 and 5 § 4 ECHR.

Observations/comments:

According to Guideline 8 of the Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention, point viii, people held in detention centres must be given the opportunity to conduct some sort of physical exercise through daily indoor and outdoor recreational activities, as well as access to outside space, including fresh air and natural light. If these conditions are not met, it is considered to have been a violation of the human dignity of the detainees.  

Guideline 9.2 is strictly about the conditions of detention applied to children.

According to Article 3 in conjunction with Article 22 of the United Nations Convention on the Rights of the Child (CRC), all actions affecting asylum-seeking and refugee children should take into consideration the best interests of the child. Accompanied or not, they should receive appropriate protection and assistance by the receiving State.

Article 37 of the CRC requires States to make sure that the detention of children is only used as a measure of last resort and for the shortest appropriate period of time. The extreme vulnerability inherent to a child’s physical and mental functions takes precedence over the status of an “illegal alien”. In the case of children who are accompanying their parents, such as this case, all appropriate alternative care arrangements should be considered before opting for their detention, due to likely harmful effects of detention on children’s physical and mental development. As a result, the competent authorities of the receiving State should consider the possibility of release them into the care of family members who already have residency within the asylum country. All efforts, including prioritisation of asylum processing, should be made to allow for the immediate release of children and their placement in other forms of appropriate accommodation, which does not seem to have happened in this case.

This summary was written by Matilde Chora, LLM Student at Queen Mary University London.

Other sources:

Domestic Case  Law Cited

Turkey: B.T. v. Constitutional Court, 30 November 2017 No. 2014/15769

Turkey: K.A. v. Constitutional Court, 11 November 2015 No. 2014/13044

Reports

19th General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 2009

27th General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), 2018

19th Session of the United Nations Human Rights Council, 2012

Council of Europe Special Representative of the Secretary General on migration and refugees - Thematic Report on migrant and refugee children 

Council of Europe - Action Plan on protecting refugee and migrant children in Europe

Inter-American Court of Human Rights - Advisory Opinion on the Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection