ECtHR – Alimov v. Turkey, Application No. 14334/13, 06 December 2016

Facts:

In 2010 the applicant and his family left Uzbekistan to escape the oppression they faced on account of their religious beliefs. After spending time in Kazakhstan, in 2010 they entered Turkey by legal means.

Once the applicant and his family arrived to Turkey they applied for asylum. While the application was being reviewed the applicant’s wife was granted a temporary residence permit. However, the applicant was not able to obtain such permit as he was not able to pay the established fee, therefore he stayed irregularly in the country.

On 5 April 2011 the applicant and his family travelled to Ukraine. However, on the Turkish border, the applicant was subjected to a fine of 900 Turkish liras on account of his illegal residence and was also banned from entering the country for 5 years.

In spite of this, on 4 May 2012 the applicant and his family attempted to enter Turkey by the Istanbul’s airport. However, the applicant’s entry was denied and he was placed in Sabiha Gokcen Airport detention facility at the airport pending his expulsion to Ukraine.

During his detention, the applicant complained that he had been unlawfully detained without the opportunity to challenge the lawfulness of his detention and that he had not been duly informed of the reasons for his deprivation of liberty, nor had he been brought before a judge promptly.

In addition, the applicant claimed that the room in the detention facility at Sabiha Gokcen Airport where he was held was 20 square metres and had accommodated up to fifteen people at times.

Moreover, there were no furniture in the room suitable for sleeping on.

On 5 May 2012 the applicant lodged an objection to the repatriation and lodged a new asylum request. which was later rejected at the end of May. He was informed that he could lodge an appeal within 72 hours, that he would be deported in the event of the dismissal of his appeal and that he would continue to be in detention in the meantime. An appeal was lodged and he was later

transferred to the Kumkapi Removal Centre in Istanbul.

Here, the applicant contended that the Removal Centre had been severely overcrowded at the time of his detention. He had to share a dormitory room of approximately 35 square metres with thirty to forty-five other people, who had been provided with only fifteen bunk beds to sleep without being able to engage in any social activities or access to outdoor exercise. The applicant further alleged that the overcrowding of the removal centre led to hygiene problems. The building was infested with insects and there were frequent outbreaks of contagious diseases. The quality and quantity of the food provided was also fairly poor.

On 15 August 2012, the applicant was granted a temporary residence permit pending his asylum request.

Decision & reasoning:

Alleged violation of Article 5 § 1 of the Convention

The ECtHR considered that the applicant was deprived of his liberty in the context of immigration controls with a view to his removal within the meaning of Article 5 § 1 (f) of the ECHR.

The ECtHR had already examined similar cases in which it found that in the absence of clear legal provisions in Turkish law establishing the procedure for ordering detention with a view to deportation, the applicants’ detention had not been “lawful” for the purposes of Article 5 of the ECHR.

According to the ECtHR this case was not the exception and it was a violation of Article 5 § 1 (f) of the Convention.

Alleged violation of Article 5 § 2 of the Convention

The ECtHR observes that the parties in the instant case disagree as to whether the applicant was notified of the reasons for his detention.

The ECtHR considers that even if it were to accept that the applicant was notified of the reasons for his detention, as submitted by the Government, that notification was not made sufficiently promptly to satisfy the requirements of Article 5 § 2 of the Convention.

Considering that in this case there is no information that suggests that the applicant was notified of the reason for his continued detention once he had been transferred from the Sabiha Gokcen Airport to the Kumkapi Removal Centre, the ECtHR concludes that there has been a violation of Article 5 § 2 of the Convention.

Alleged violation of Article 5 § 4 and 5 of the Convention

In similar cases, the ECtHR noted that it found a violation of Article 5 §§ 4 and 5 of the ECHR where it concluded that the Turkish legal system did not provide with a remedy whereby they could obtain judicial review of the lawfulness of their detention, within the meaning of Article 5 § 4.

Considering the ECtHR has determined that the applicant was not informed of the reasons for the deprivation of his liberty, it considers that the applicant’s right of appeal against his detention was deprived of all substance therefore the ECtHR concludes that there has been a violation of Articles 5 §§ 4 and 5 of the Convention.

Alleged violation of Article 3 and Article 13 ECHR.

Article 13 ECHR

The ECtHR points out that Article 13 ECHR guarantees the availability at the national level of a remedy to enforce the substance of the ECHR rights and freedoms in whatever form they may happen to be secured in the domestic legal order.

The ECtHR also notes that it has already examined and rejected similar submissions by the Turkish Government in comparable cases and found a violation of Article 13 of the Convention.

Moreover, the ECtHR also highlighted that the applicant alleged that he had had no access to legal assistance throughout his detention. On this issue, the Turkish government has not challenged his declaration.

The ECtHR therefore rejects the Government’s objection concerning the non-exhaustion of domestic remedies and concludes that there has been a violation of Article 13 of the ECHR, in conjunction with Article 3, on account of the absence of an effective remedy to complain about the inadequate conditions of the applicant’s detention.

Article 3 ECHR

The ECtHR pointed out that under Article 3 of the Convention, the State must ensure that a person is detained in conditions which are consistent with respect for human dignity and that the manner and method of executing the detention measure in question do not cause that individual to suffer distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.

When assessing conditions of detention, account must be taken of the cumulative effects of those conditions, as well as of the specific allegations made by the applicant.The Sabiha Gökçen Airport detention facility

The ECtHR observes in the instant case that the applicant claimed, and the Government did not contest, that he had had no access to legal assistance throughout his sixty-eight-day detention at the Sabiha Gökçen Airport detention facility and that all other passengers admitted to that facility during the course of his detention had either been released or repatriated within very short periods.

Having regard to the high turnover of detainees, the inevitable communication difficulties caused by language barriers, and the lack of any access to legal assistance, the ECtHR accepts that it would have been very difficult for the applicant to procure evidence to support his allegations, such as witness accounts. In such circumstances, and given the consistency and the sufficient detail in the applicant’s submissions, the ECtHR deems it possible to shift the burden of proof to the Government.

The ECtHR noted that the Government’s statements as to the size and occupancy level of the Sabiha Gökçen Airport detention facility were not corroborated by any documents enabling the ECtHR to verify their validity, even though it was open to them to submit copies of registration logs with the names of the passengers detained together with the applicant in the relevant period, as well as photos or video footage of the facility and other pertinent information regarding its size.

Regarding the overcrowding of the facilities, the ECtHR noted that it, in itself, creates a strong presumption that the conditions of detention amounted to degrading treatment.

The information in the case file does not allow the ECtHR to determine for how long the applicant was subjected to such severe overcrowding and whether such scarcity of space was only short-term or occasional. Nevertheless, in the absence of any convincing information from the Government to the contrary, the ECtHR accepts the applicant’s argument that the Sabiha Gökçen Airport detention facility was filled beyond its design capacity during the course of his detention, at times to the point of constituting a flagrant lack of personal space.

Kumkapı Removal Centre

The ECtHR noted that the parties similarly disagreed on the total capacity of the Kumkapı Removal Centre and of the rooms reserved for male detainees.

While the applicant provided photographic evidence of the conditions of the centre, the Turkish government did not provide any allegation or proof regarding the overcrowded condition of the centre.

The ECtHR also noted that the applicant’s allegations also coincide with the earlier observations of the CPT regarding the problem of overcrowding at the Kumkapı Removal Centre.

The ECtHR further argues that there is no evidence in the case file to show that this overcrowding was alleviated by sufficient possibility of freedom of movement within the removal centre

In these circumstances, it appears that the applicant was mostly confined to his overcrowded dormitory room, which had no furniture other than beds and lockers.

In conclusion, the ECtHR determined that from 4 May until 15 August 2012, the applicant was detained in conditions under which he was not afforded sufficient living space; that situation was further exacerbated by the fact that he was not allowed access to outdoor exercise at any time.

In the light of the foregoing, there had been a violation of Article 3 of the ECHR on account of the material conditions in which the applicant was detained in the Sabiha Gökçen Airport detention facility and the Kumkapı Removal Centre.

Outcome:

The Court, unanimously, found that:

1. There has been a violation of Article 5 §§ 1, 2, 4 and 5 ECHR.

2. There has been a violation of Article 3 ECHR on account of the material conditions of the applicant’s detention at the Sabiha Gokcen Airport detention facility and the Kumkapi Removal Centre.

3. There has been a violation of Article 13 ECHR in conjunction with Article 3 on account of the absence of effective remedies to complain about the material conditions of detention.

Regarding damage, the ECtHR considered that the Turkish government should pay the applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

4. With regards to costs and expenses, the ECtHR grants the applicant’s the amount of EUR 4,330 and ordered the Turkish Government to pay to the applicant the said amount within three months from the date on which the judgement becomes final.

Observations/comments:

The summary was written by Oscar Pajuelo, LLM student of Queen Mary University of London.