ECtHR- D.B. v. Turkey, Application no. 33526/08, 13 October 2010

Facts:

The applicant, an active member of the Worker-Communist Party and Equality Seeking Students Movement of Iran, arrived in Turkey in an irregular manner in 2008 and was placed in a Foreigner’s Admission and Accommodation Centre. Subsequently, he lodged an application for temporary asylum, which was rejected along with his appeals against that decision. In the meantime, the Court indicated to the Government of Turkey, under Rule 39 of the Rules of the Court, that the applicant should not be deported to Iran until 29 August 2008. His lawyer was prevented from visiting him in the Centre and asked on several occasions the administrative authorities to ensure the applicant’s release in order to facilitate his departure from Turkey to Sweden where he was accepted within the refugee quota. In March 2009, the applicant left Turkey and was given refugee status in Sweden under the UNHCR’s mandate.

The applicant complained under Articles 2 and 3 of the Convention that his removal to Iran would expose him to a real risk of death or ill-treatment. He also alleged that his detention was unlawful and in breach of Article 5. He further complained under Article 13 of the Convention that he did not have an effective domestic remedy at his disposal whereby he could challenge the decision to deport him to Iran and that he had not been allowed to have access to the asylum procedure.

Decision & reasoning:

Concerning the complaint under Articles 2, 3 and 13, the Court observed 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 [43].  Therefore, it considered this part of the application as manifestly ill-founded and rejected it pursuant to Article 35 §§ 3 and 4 of the Convention [44].

Taking cue from Abdolkhani and Karimnia (no. 30471/08), the Court reiterated that the placement of the applicant in the Accommodation Centre had constituted a deprivation of his liberty. It further 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 applicant was subjected was not “lawful” for the purposes of Article 5 of the Convention [49]. Therefore, it found a violation of Article 5 para 1 of the Convention [50].

With regards to the applicant’s complaint under Article 5 para 1 of the Convention, the Court held that the five month period between the lodging of the judicial review and its examination could not be regarded as a "speedy"  reply to the applicant’s petition [54]. Therefore, it held that there had been a violation of Article 5 para 4 of the Convention [55].

The Court had decided to raise of its own motion the question of Turkey’s compliance with its obligation under Article 34 [61]. It found that the Turkish Government had failed to comply with necessary diligence with the interim measure indicated under Rule 39, given that the applicant had been able to meet a lawyer and sign an authority form eighteen days after the deadline given by the Court. The effective representation of the applicant had therefore been seriously hampered [66]. Further, it noted the fact that the applicant had subsequently been able to meet a lawyer, sign the authority form and provide the information regarding his situation in Iran did not alter the conclusion that the lack of timely action on the part of the authorities had been incompatible with the respondent Government’s obligations under Article 34 [67].

Outcome:

Violation of Article  5 §§ 1 and 4

Violation of Article 34