Case of European Court of Human Rights, October 17, 2019 (case G.B. AND OTHERS v. TURKEY)

Defense:TURKEY
Resolution Date:October 17, 2019
SUMMARY

Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment);Violation of Article 5 - Right to liberty and... (see full summary)

 
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SECOND SECTION

CASE OF G.B. AND OTHERS v. TURKEY

(Application no. 4633/15)

JUDGMENT

STRASBOURG

17 October 2019

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 G.B. and Others v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Robert Spano, President,Marko Bošnjak,Valeriu Griţco,Egidijus Kūris,Arnfinn Bårdsen,Darian Pavli,Saadet Yüksel, judges,and Hasan Bakırcı, Deputy Section Registrar,

Having deliberated in private on 3 September 2019,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

  1. The case originated in an application (no. 4633/15) 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 four Russian nationals, Ms G.B. and her three children, namely Ms A.I., Mr M.Z. and Ms K.Z. (“the applicants”), on 22 January 2015.

  2. The applicants were represented by Mr A. Yılmaz, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

  3. The applicants complained, under Articles 3, 8 and 13 of the Convention, about the material conditions of their detention at the Kumkapı and Gaziantep Foreigners’ Removal Centres and of the absence of any effective remedies whereby they could raise those complaints. They also complained, under Article 5 §§ 1, 2, 4 and 5 of the Convention, of the unlawfulness of their detention, the failure of the authorities to duly inform them of the reasons for their detention and the absence of domestic remedies by which they could effectively have the lawfulness of their detention reviewed and claim compensation for the violation of their rights under Article 5.

  4. On 27 May 2015 notice of the complaints under Article 3, Article 5 §§ 1, 2, 4, and 5, Article 8 and Article 13 of the Convention was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

  5. The applicants and the Government each filed observations on the admissibility and merits of the application. The Russian Government, who were informed of their right to intervene under Article 36 of the Convention, did not make use of that right.

    THE FACTS

  6. The applicants were born in 1986, 2008, 2012 and 2013 respectively. The first applicant is the mother of the second, third and fourth applicants (also referred to as the “minor applicants”). They were being held in administrative detention at the time of lodging the present application with the Court. According to the latest information in the case file, they currently live in Baku, Azerbaijan.

  7. On 17 October 2014 the applicants entered Turkey via Istanbul Atatürk Airport allegedly with a valid visa.

  8. According to the official records, on 18 October 2014 the applicants were arrested in the province of Kilis by the Syrian border as they were attempting to cross the border illegally into Syria. They were first taken to the Elbeyli provincial gendarmerie command for verification of their identities. Later on the same day, they were transferred to the foreigners department at the Kilis Security Directorate.

  9. On 19 October 2014 the Kilis governor’s office issued an order for the deportation of the first applicant under section 54(1)(h) of Law no. 6458, for having attempted to leave the country illegally. It also ordered her detention under section 57(2) for the same reason.

  10. On 22 October 2014 the applicants were transferred to the Kumkapı Foreigners’ Removal Centre (“the Kumkapı Removal Centre”) attached to the Istanbul Security Directorate.

  11. On 23 October 2014 the Istanbul governor’s office issued an order for the first applicant’s deportation under section 54(1)(d) and (h) of Law no. 6458 and her detention during the deportation process in accordance with section 57 of the same Law. The order only made reference to the relevant provisions of Law no. 6458 on deportation and detention, without explaining on what grounds the decision to deport and detain the first applicant had been taken. There is no document in the case file to show whether and when that order was served on the first applicant.

  12. On 3 December 2014 the first applicant objected to the deportation order before the Istanbul Administrative Court. There is no information in the case file as to the outcome of those proceedings.

  13. In the meantime, on 7 November 2014 the applicants also sought international protection from the Turkish authorities, arguing that they had left Russia for fear of persecution due to their religious and political convictions and that their lives would be in danger if they were returned there. That request was rejected on 17 December 2014 by the Directorate General of Migration Management (“the DGMM”) attached to the Ministry of the Interior, which found that the applicants did not qualify for international protection. On 6 January 2015 the applicants challenged the decision of the DGMM before the Ankara Administrative Court, which rejected their case on 9 September 2015. An appeal lodged by the applicants against the administrative court’s decision was dismissed by the Supreme Administrative Court on 20 June 2018.

  14. On 11 November 2014 the applicants lodged an application with the Istanbul Magistrates’ Court, challenging the lawfulness of their administrative detention at the Kumkapı Removal Centre and requesting their release. They argued, in particular, that

    (i) the detention order had only made reference to section 57 of the Foreigners and International Protection Act (Law no. 6458), without specifying the reasons for detention, even though the competent authority was obliged by law to provide such reasons in its decision;

    (ii) it was clear from section 68 of Law no. 6458 that administrative detention should have been the last resort in respect of them, in view of their asylum seeker status, yet the authorities had ordered their detention without considering any alternative preventive measures and without paying sufficient attention to the fact that the applicants were a mother and her three very young children;

    (iii) the administrative detention entailed serious physical and mental suffering for the applicants, especially the second, third and fourth applicants on account of their young age, having particular regard to the adverse material conditions at the Kumkapı Removal Centre (see paragraphs 24-27 below), which amounted to inhuman and degrading treatment as established by the Court in cases such as Yarashonen v. Turkey (no. 72710/11, 24 June 2014).

  15. On 20 November 2014 the applicants submitted a second request to complement their application, arguing that an official decision on administrative detention had been taken only in respect of the first applicant, and that there was no legal basis for the remaining applicants’ detention.

  16. On 26 November 2014, 2 and 26 December 2014 and 6 January 2015 the applicants lodged four more applications with the Istanbul Magistrates’ Court to challenge the lawfulness of their detention on largely the same grounds as those noted above.

  17. By decisions dated 21 November 2014, 2 and 9 December 2014 and 12 and 29 January 2015[1] the Istanbul Magistrates’ Court dismissed the applicants’ requests. In its initial decision of 21 November 2014, the magistrates’ court found that according to the information obtained from the Istanbul governor’s office, it had been decided to deport and detain the first applicant as (i) she posed a danger to public safety, and (ii) she had attempted to leave Turkey illegally. Her detention was, therefore, in accordance with the law. As for the remaining applicants, the Istanbul Magistrates’ Court acknowledged the absence of any detention order in respect of them and dismissed their claims – regarding the unlawfulness of their detention – for that reason. The court did not respond to the applicants’ remaining arguments. In its subsequent four decisions, it similarly declared the applicants’ detention lawful, merely making reference to sections 54 and 57 of Law no. 6458. In two of those decisions (delivered on 2 December 2014 and 12 January 2015) the court held that the decision to deport the first applicant had been based on section 54(1)(d) alone (concerning the deportation of those posing a threat to public order and security or public health), while in the other decisions it did not even specify that. In the remaining two decisions the court stated that the applicants had entered Turkey without a valid visa, although the applicants consistently denied that assertion.

  18. On 22 January 2015 the applicants were transferred to the Gaziantep Removal Centre.

  19. On 23 January 2015 the Gaziantep governor’s office issued a deportation order in respect of all of the applicants, and also ordered their detention pending the deportation process, without specifying the provisions on which those orders were based. There is no document in the case file to show whether and when those orders were served on the applicants.

  20. On 30 January 2015 the applicants applied to the Gaziantep Magistrates’ Court, challenging the lawfulness of their administrative detention at the Gaziantep Removal Centre and requesting their release. They largely repeated the arguments that they had previously made before the Istanbul Magistrates’ Court and stressed the unsuitability of the physical conditions at the Gaziantep Removal Centre, especially for small children. They also drew the court’s attention to the fact that they were being detained despite the absence of any immediate prospect of expulsion, because the cases that they had lodged against the deportation decision and the decision refusing their asylum request were still pending before the administrative courts.

  21. On 5 February 2015 the Gaziantep Magistrates’ Court accepted the...

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