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SECOND
SECTION
CASE OF CHARAHILI v. TURKEY
(Application
no. 46605/07)
JUDGMENT
STRASBOURG
13
April 2010
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 Charahili v.
Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Işıl Karakaş,
Nona
Tsotsoria, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 23 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 46605/07) 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 a Tunisian national, Mr Malek Charahili
(“the applicant”), on 25 October 2007.
- The
applicant, who had been granted legal aid, was represented by Mr A.
Yılmaz, a lawyer practising in Istanbul. The Turkish Government
(“the Government”) were represented by their Agent.
- On
26 October 2007 the acting President of the
Chamber to which the case had been allocated decided, in the
interests of the parties and the proper conduct of the proceedings
before the Court, to indicate to the Government of Turkey, under Rule
39 of the Rules of Court, that the applicant should not be deported
to Tunisia until further notice.
- On
1 September 2008 the President of the Second
Section decided to give notice of the application to the Government.
It was also decided that the admissibility and merits of the
application would be examined together (Article 29 § 3) and
that the case would be given priority (Rule 41).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1986 and is currently held in the Kırklareli
Foreigners' Admission and Accommodation Centre in Turkey.
A. The applicant's arrival in Turkey and the criminal
proceedings brought against him there
- In
2003 the applicant left his home country and, via Libya, arrived in
Syria, where he received religious training. Six months after his
arrival in Syria, the applicant was detained for two months under the
Syrian Government's policy of detaining and deporting nationals of
North African countries. After his release from detention in Syria,
the applicant left that country in March 2005 and arrived in
Istanbul. He then went to Hatay, a province in the south of Turkey,
where he began working. His identity documents were stolen and
subsequently the applicant obtained a false passport.
- On
15 August 2006 the applicant was arrested by police officers from the
anti-terrorist branch of the Hatay police headquarters on suspicion
of membership of an international terrorist organisation, namely
Al-Qaeda. The search carried out in the apartment he had shared with
another person revealed some materials used for manufacturing bombs.
During his questioning by the police, in the presence of an
interpreter, the applicant stated that he was not a member of
Al-Qaeda but of Ennahda, an illegal organisation in Tunisia.
- On
17 August 2006 the applicant made statements before the Adana public
prosecutor and subsequently the Adana Magistrate's Court, which
remanded the applicant in custody.
- On
18 August 2006 the applicant lodged an objection against the
detention order, which was dismissed on the same day.
- On
14 September 2006 the Adana public prosecutor filed a bill of
indictment with the Adana Assize Court charging the applicant with
membership of Al-Qaeda under Article 314 of the Criminal Code and
section 5 of Law no. 3713. In the indictment the public
prosecutor noted, inter alia, that an arrest warrant had been
issued in respect of the applicant in Tunisia for membership of
Ennahda and that the applicant had left his country for that reason
in 2003.
- On
25 September 2006 the Adana Assize Court allowed the bill of
indictment lodged against the applicant and decided to hold the first
hearing on the merits of the case on 9 November 2006.
- On
9 November 2006 the applicant made statements before the Assize
Court. He contended, inter alia, that he did not have any
connection with Al-Qaeda and that the material found in his apartment
did not belong to him but to his flatmate.
- On
25 January 2007 the applicant's representative requested the
first-instance court to order the applicant's continued detention. He
submitted in this respect that the applicant had applied to both the
Turkish authorities and the United Nations High Commissioner for
Refugees (UNHCR) to be granted refugee status and that, if he were
released, he might be deported to Tunisia. The applicant himself also
requested that he be kept in detention until the outcome of his
application for refugee status. On the same day, the Assize Court
ordered the applicant's continued detention, taking into
consideration the nature of the offence and the applicant's request.
- On
12 April 2007 the Adana Assize Court ordered the applicant's release
pending trial.
- On
19 February 2008 the Adana Assize Court acquitted the applicant of
the charge of membership of Al-Qaeda.
- Appeal
proceedings are currently pending before the Court of Cassation.
B. Administrative proceedings
- On
19 January 2007 the applicant applied to the Ministry of the Interior
requesting asylum.
- On
16 April 2007 the Ministry of the Interior dismissed this request.
According to a document addressed to the Adana public prosecutor's
office by the Ministry of Justice on 24 April 2007, the applicant's
temporary asylum request was dismissed in view of the offences with
which he had been charged and the fact that his presence in Turkey
constituted a threat to public safety and public order. It was
considered that the applicant had not been sincere in his request but
had attempted to use the temporary asylum system in order to avoid
deportation to Tunisia.
- On
25 April 2007 the decision of the Ministry was served on the
applicant. In the documents so served, he was told that he could
lodge an objection with the Ministry against this decision within two
days.
- On
an unspecified date the applicant objected to the decision of
16 April 2007. On 18 May 2007 he was notified that the Ministry
had dismissed his objection. The decisions of 25 April and 18 May
2007 were served by a police officer who spoke Arabic.
- In
the meantime, on 3 May 2007 the applicant was recognised as a refugee
under the UNHCR's mandate.
- On
16 October 2007 the applicant was served with a deportation order.
- On
17 October 2007 the applicant addressed a petition to the Adana
police headquarters. He maintained that his request for temporary
asylum had been rejected on 18 May 2007 and that he had learned that
he would soon be deported to Tunisia. The applicant requested that
his deportation be suspended since his lawyer intended to challenge
the deportation order before the administrative courts.
- On
the same day the applicant's lawyer lodged an application with the
Supreme Administrative Court. He requested the setting-aside of the
decision rejecting the applicant's asylum request. The applicant's
representative further requested the setting-aside of the deportation
order.
- On
26 October 2007 the applicant's representative filed a petition with
the Adana police headquarters and informed the latter of the
application he had lodged with the Supreme Administrative Court. He
requested the police not to deport the applicant.
- On
26 October 2007 the Supreme Administrative Court decided that it did
not have jurisdiction over the case and transferred the petition to
the Ankara Administrative Court.
- On
14 February 2008 the Ankara Administrative Court requested the
Ministry of the Interior to submit a copy of all documents relating
to the applicant's case.
- On
20 March 2008 the Ankara Administrative Court, after receiving the
documents concerning the applicant, rejected the application, holding
that the applicant had not complied with the time-limit of sixty days
stipulated in the Administrative Procedure Act (Law no. 2577). The
first-instance court held that the applicant had been notified of the
Ministry's decision rejecting his temporary asylum request and
ordering his deportation on 18 May 2007, and that the applicant
should have challenged this decision by 17 July 2007 at the latest.
The court noted that the applicant's petition dated 17 October 2007
to the Adana police headquarters and his application to the Court
would not stop the running of the sixty-day time-limit.
- On
20 June 2008 the applicant's representative lodged an appeal against
the decision of 20 March 2008. In his petition, the representative
noted that the Ministry's decision rejecting the applicant's
objection had not been served on his lawyer, who had found the
document dated 25 April 2007 in the criminal case file by
chance.
- On
3 July 2008 the applicant's representative was informed by the
president of the Ankara Administrative Court that he had failed to
pay the court fees and that he had to pay a total of 161.80 Turkish
liras (TRY) by postal order within fifteen days. The representative
was warned that if he failed to pay this sum, the applicant would be
deemed to have waived his right of appeal.
- On
11 August 2008 the applicant's representative effected the postal
order and paid TRY 162.
- On
24 October 2008 the Ankara Administrative Court decided that the
applicant had waived his right of appeal since his representative had
failed to pay the Court fees despite the warning.
- On
12 January 2009 the applicant' representative appealed against the
decision of 24 October 2008, claiming that he had paid the fees. He
submitted a copy of the postal order in support of his petition.
- On
2 February 2009 the Ankara Administrative Court informed the
applicant that his representative had failed to pay the Court fees in
relation to his appeal dated 12 January 2009.
- On
4 March 2009 the applicant's lawyer paid TRY 175 in court fees by way
of a postal order.
C. The applicant's placement in the Fatih police
station
- Following
the decision of the Adana Assize Court of 12 April 2007 to release
the applicant pending trial, the applicant was not released but was
taken to the foreigners' department at the Adana police headquarters.
- On
12 April 2007 the applicant was transferred to the Fatih police
station in Adana.
- On
12 December 2007 the applicant's representative sent a request to the
General Police Headquarters for the applicant to be released from
detention. In his request he noted that the applicant was being
detained in a small cell and that on 26 October 2007 the European
Court of Human Rights had indicated to the Turkish Government
that the applicant should not be deported to Tunisia until further
notice.
- The
applicant's representative received no reply to his request.
- Subsequently,
on 12 March 2008 he filed a complaint with the Adana public
prosecutor's office against the Minister of the Interior, the Adana
Governor, the Adana police director, the director of the foreigners'
department at the Adana police headquarters and the director of the
Fatih police station. He requested the public prosecutor's office to
initiate an investigation into the persons concerned, alleging that
they had unlawfully deprived the applicant of his liberty and that
his detention in a small cell for ten months constituted
ill-treatment. The representative noted in his request that there was
no legal basis on which to detain the applicant, since asylum seekers
were normally given temporary residence permits in Turkey. He further
submitted that the ventilation was inadequate in the cell. The
applicant was completely isolated and there was no provision for
outdoor exercise. Moreover, the applicant did not have access to a
doctor. In particular, when he had had a toothache he was denied
access to a dentist and had to take the medication that was given to
him by police officers.
- On
16 April 2008 the Adana public prosecutor decided not to bring
criminal proceedings against the Minister of the Interior, holding
that he had not committed any offence as the applicant was being
detained by the police with a view to his deportation.
- On
23 September 2008 the public prosecutor at the Court of Cassation
decided not to process the request from the applicant's lawyer to
bring proceedings against the Adana governor.
- On
the same day the applicant's representative wrote to the
department responsible for aliens, borders and asylum attached to the
General Police Headquarters, to the Adana police headquarters and to
the Human Rights Commission of the Turkish Parliament, requesting
that his client be released from the Fatih police station.
- In
the meantime, between 1 October 2007 and 3 November 2008 the
applicant was examined and prescribed treatment at the Adana hospital
on seven occasions. He was examined by an
ophthalmologist, a dentist and a general practitioner in relation to
his respiratory problems.
- On
7 November 2008 the applicant was transferred to the Kırklareli
Aliens' Admission and Accommodation Centre.
- On
12 January 2009 the President of the Human Rights Commission of the
Turkish Parliament sent a reply to the applicant's representative
informing him that the applicant was being detained pending the
deportation procedure and that he had been transferred to the
Kırklareli Foreigners' Admission and Accommodation
Centre.
D. Criminal proceedings brought against the applicant
in Tunisia
- On
an unspecified date criminal proceedings were brought against the
applicant and twelve other persons in Tunisia on charges of
membership of a terrorist organisation, aiding and abetting the
organisation and providing financial support to that organisation.
According to a document translated from Arabic into Turkish by the
applicant, on 12 January 2008 a Tunisian criminal court convicted him
of membership of an illegal organisation and sentenced him to five
years' imprisonment.
II. RELEVANT LAW AND PRACTICE
A. Domestic law and practice
- A
description of the relevant domestic law and practice can be found in
the case of Abdolkhani and Karimnia
v. Turkey (no. 30471/08, §§
29 44, 22 September 2009).
B. International materials
1. Standards of the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (“the CPT”)
- The
CPT standards concerning the conditions of detention of foreign
nationals (see the CPT standards, document no. CPT/Inf/E (2002)
1- Rev. 2006, page 40) provide, in so far as relevant, as
follows:
“... In certain countries, CPT delegations have
found immigration detainees held in police stations for prolonged
periods (for weeks and, in certain cases, months), subject to
mediocre material conditions of detention, deprived of any form of
activity and on occasion obliged to share cells with criminal
suspects. Such a situation is indefensible.
The CPT recognises that, in the very nature of things,
immigration detainees may have to spend some time in an ordinary
police detention facility. However, conditions in police stations
will frequently - if not invariably - be inadequate for prolonged
periods of detention. Consequently, the period of time spent by
immigration detainees in such establishments should be kept to the
absolute minimum.”
2. Documents relating to the
situation of Ennahda members in Tunisia
- A
description of reports by Amnesty International and Human Rights
Watch relating to the situation of Ennahda members can be found in
Saadi v. Italy [GC] (no. 37201/06, §§ 65-79, ECHR
2008 ...).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION
IN RELATION TO THE DEPORTATION PROCEEDINGS
- The
applicant complained under Articles 2 and 3 of
the Convention that his removal to Tunisia would expose him to a real
risk of death or ill-treatment.
The Court finds it more appropriate to examine
the applicant's complaint from the standpoint of Article 3 of the
Convention alone (see Abdolkhani and
Karimnia, cited above, § 62;
NA. v. the United Kingdom, no. 25904/07, § 95,
17 July 2008; Said
v. the Netherlands, no. 2345/02, §
37, ECHR 2005 VI).
A. Admissibility
- The
Court notes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government submitted that the applicant's request for temporary
asylum had been examined and rejected by the competent authorities.
They noted in this connection that the applicant had entered Turkey
illegally and had omitted to request asylum for several years.
Moreover, he was accused of being a member of the terrorist
organisations Ennahda and Al-Quada. They maintained that
the Ministry of the Interior had decided on the applicant's request
taking into consideration the requirements of Article 3 of the
Convention, the provisions of the 1951 Convention relating to
the Status of Refugees and the UNHCR's decision
to recognise the applicant as a refugee. The Government concluded
that the applicant's removal to Tunisia would not expose him to any
risk.
- The
applicant contended that he had been convicted in
absentia and sentenced to
imprisonment in Tunisia for membership of Ennahda, which was not an
armed group. He maintained that the reports by international
non-governmental organisations showed that terrorist suspects were
subjected to widespread torture and ill treatment.
- The
Court observes that the applicant claimed that he was a member of
Ennahda and submitted a document according to which he had been
convicted of membership of a terrorist organisation in Tunisia and
sentenced to five years' imprisonment. The Court further observes
that the Government did not challenge the veracity of these
allegations. Moreover, when the applicant was accused of being a
member of Al-Qaeda in Turkey, the Adana public prosecutor noted that
an arrest warrant had been issued against the applicant in Tunisia as
he was suspected of membership of Ennahda. The Court therefore finds
no reason to doubt that the applicant was a member of Ennahda in
Tunisia.
- In
this connection the Court recalls that, in the aforementioned
Saadi judgment, it observed that the reports of Amnesty
International and Human Rights Watch on Tunisia described a
disturbing situation. It noted that those reports mentioned numerous
and regular cases of torture and ill treatment meted out to
persons accused of terrorism (see Saadi, cited above, §
143). The Court sees no ground to depart from its findings in the
above-mentioned Saadi judgment in the present case.
- Furthermore,
the Government failed to submit any document to the Court
demonstrating that the applicant had been interviewed in relation to
his temporary asylum request or that the national authorities had
indeed examined his request taking into account the requirements of
Article 3 of the Convention, as claimed. In addition, the applicant's
case was not subjected to judicial review since the Ankara
Administrative Court dismissed his application as time-barred,
although the applicant had been served with a deportation order on 17
October 2007. The Court is unable to ascertain whether the Ministry
of the Interior failed to submit that document for inclusion in the
file of the case before the Ankara Administrative Court, or whether
the latter did not take into account the fact that the applicant had
actually been served with a deportation order when the application
was lodged. Moreover, his lawyer's appeal requests were dismissed on
the ground that he had failed to pay the court fees, although he had
done so. In sum, not only did the administrative authorities fail to
interview the applicant, but the latter was also deprived of the
right to an examination by the judicial authorities of the merits of
his claim that he was at risk in Tunisia.
- The
only document relating to the examination of the applicant's
temporary asylum request is the letter dated 24 April 2007 sent by
the Ministry of Justice to the Adana public prosecutor's office.
According to that document, the applicant's temporary asylum request
was rejected by the administrative authorities on the grounds that he
had been charged with terrorist-related crimes and that he posed a
threat to public safety and public order (paragraph 18 above). In
this connection the Court reiterates the absolute nature of Article 3
of the Convention: it is not possible to weigh the risk of
ill-treatment against the reasons put forward for the expulsion in
order to determine whether the responsibility of a State is engaged
under Article 3, even where such treatment is inflicted by
another State. The conduct of the person concerned, however
undesirable or dangerous, cannot be taken into account (see Chahal
v. the United Kingdom, 15 November 1996, § 81, Reports
of Judgments and Decisions 1996 V; Saadi, cited
above, § 138; Abdolkhani and Karimnia,
cited above, § 91).
- Besides,
the Court must give due weight to the UNHCR's conclusions as to the
applicant's claim regarding the risk which he would face if he were
to be removed to Tunisia (see Jabari v. Turkey,
no. 40035/98, § 41, ECHR 2000 VIII; N.A. v. the
United Kingdom, cited above, § 122; Abdolkhani and
Karimnia, cited above, § 82). In this connection the Court
observes that, unlike the Turkish authorities, the UNHCR interviewed
the applicant and tested the credibility of his fears and the
veracity of his account of circumstances in his country of origin.
Following this interview, it found that the applicant risked being
subjected to ill-treatment in his country of origin.
- The
Court finds in these circumstances that the evidence submitted by the
parties, together with the material obtained proprio motu, is
sufficient for it to conclude that that there is a real risk of the
applicant being subjected to treatment contrary to Article 3 of the
Convention if he were to be removed to Tunisia. The Court also notes
in this connection that the Government have not put forward any
argument or document capable of casting doubt on the applicant's
allegations concerning the risks he might face in his country of
origin (see Abdolkhani and Karimnia, cited above, § 90).
- Consequently,
the Court concludes that there would be a violation of Article 3
of the Convention if the applicant were to be removed to Tunisia.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained under Article 5 of the Convention that his
detention without a legal basis, despite the order of the Adana
Assize Court for his release pending trial and his acquittal, had
been unlawful.
A. Admissibility
- The
Court notes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
- The
Government submitted that the applicant's detention was based on
section 23 of Law no. 5683 and section 4 of Law no. 5682 and that he
was being held pending deportation proceedings in accordance with
Article 5 § 1 (f) of the Convention.
- The
applicant submitted that his detention did not have a sufficient
legal basis in domestic law.
- The
Court reiterates that it has already examined the same grievance in
the case of Abdolkhani and Karimnia (cited above, §§
125-135). It found 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 applicants had been subjected was
not “lawful” for the purposes of Article 5 of the
Convention.
- The Court has examined the present case and finds no
particular circumstances which would require it to depart from its
findings in the aforementioned Abdolkhani and Karimnia
judgment.
There
has therefore been a violation of Article 5 § 1 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN
CONNECTION WITH THE APPLICANT'S DETENTION
- The
applicant complained under Article 3 of the
Convention that he had been detained in the Fatih police station for
almost twenty months in poor conditions and that the medical
assistance provided for him during his detention had been
insufficient.
A. Medical assistance
- The
Government submitted that the applicant had
been provided with the appropriate medical assistance for his state
of health. In support of their claim, the Government submitted
a number of documents demonstrating that the applicant had been
examined by doctors.
- The
Court observes that between 1 October 2007 and
3 November 2008 the
applicant underwent a number of medical examinations while
he was being held in the Fatih police station and received medical
treatment. In particular, he was examined by a general practitioner
in relation to respiratory problems. He was also examined by an
ophthalmologist and a dentist. On each occasion, he was prescribed
medication or treatment (see paragraph 44 above).
- Given
that the authorities ensured that the applicant received sufficiently
detailed medical examinations and that he was provided with
appropriate treatment, the Court concludes that he did have access to
adequate medical assistance. It therefore concludes that this part of
the application is manifestly ill founded and must be rejected
in accordance with Article 35 §§ 3 and 4 of the Convention.
B. Conditions of detention
1. Admissibility
- The
Court notes that this part of the application is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
2. Merits
- The
Government submitted that the applicant had not been detained in the
Fatih police station as alleged but had been kept in the guesthouse
which was located in the basement of that station. In the basement
there were six rooms that were never locked and a common area where
the foreign nationals could watch television. There was hot water
twenty-four hours a day and a public telephone. The rooms had air
conditioning and the detainees could go out and play football in the
yard of the police station. The Government further noted that the
room in which the applicant had been kept measured 20.58 square
metres.
- The
applicant submitted that he had been detained at the Fatih police
station for nineteen months and twenty-six days. The room where he
was held was dirty and had serious ventilation problems as it was in
the basement of the building. He further maintained that the room was
twelve square metres and was designed to accommodate ten persons.
However, sometimes twenty-five persons were held there at the same
time, meaning that two or three persons had to share single beds. The
applicant claimed that he had been able to go out into the yard of
the police station only twice.
- The Court reiterates that, under Article 3 of the
Convention, the State must ensure that a person is detained in
conditions which are compatible with respect for his or her human
dignity, that the manner and method of the execution of the measure
do not subject the detainee to distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in detention
and that the individual's health and well-being are adequately
secured. When assessing conditions of detention, account has to be
taken of the cumulative effects of those conditions and the duration
of the detention (see Dougoz v. Greece,
no. 40907/98, § 46, ECHR 2001 II, and Kalashnikov v.
Russia, no. 47095/99, § 102, ECHR 2002 VI).
- In
the present case, the Court observes at the outset that the applicant
was detained in the basement of a police station between 12 April
2007 and 7 November 2008, that is, for almost twenty months,
before being transferred to Kırklareli Foreigners' Admission and
Accommodation Centre. The Court further observes that the Government
claimed that the basement of Fatih police station was not an ordinary
police detention facility but a “guesthouse”, a place
designated for the detention of foreign nationals. However, the
respondent Government did not submit any documentary evidence in
support of their submissions regarding the living conditions there
and thus failed to substantiate the alleged difference between the
basement of the police station and the rest of the building. The
Court therefore accepts that the applicant was detained for almost
twenty months in an ordinary police detention centre designed to hold
persons in police custody for a maximum period of four days in
accordance with the Code of Criminal Procedure.
- In this connection the Court notes that the European
Committee for the Prevention of Torture (CPT) has emphasised that,
although immigration detainees may have to spend some time in
ordinary police detention facilities, given that the conditions in
such places may generally be inadequate for prolonged periods of
detention, the period of time spent by immigration detainees in such
establishments should be kept to the absolute minimum. While the
Court cannot verify the veracity of all the applicant's allegations
regarding the conditions of detention at the Fatih police station, it
is certain that he was kept in the basement of the station. Therefore
and having regard, in particular, to the inordinate length of time
for which he was detained at the Fatih police station, the Court
considers that the conditions of detention in the basement of the
police station amounted to degrading treatment contrary to Article 3.
- Accordingly,
there has been a violation of Article 3 of the Convention on account
of the conditions of the applicant's detention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant complained under Article 5 of the Convention that he had
not been provided with an interpreter when he was taken into police
custody on 15 August 2006. He further complained under Article 6 of
the Convention that he had not had the assistance of an interpreter
throughout the proceedings brought against him. The applicant
maintained under Articles 6 and 13 of the Convention that
neither the criminal proceedings brought against him nor the
administrative proceedings before the Supreme Administrative Court
had been concluded within a reasonable time. Relying on Article 8 of
the Convention, the applicant contended that his remand in custody
and his detention with a view to deportation constituted an
unjustified interference with his right to respect for his private
and family life. Finally, he submitted that the
proceedings concerning the deportation order issued against him had
been in violation of Article 1 of Protocol No. 7.
- Having regard to the facts of the case, the
submissions of the parties and its finding of violations of Articles
3 and 5 § 1 of the Convention, the Court considers that it has
examined the main legal questions raised in the present application.
It concludes therefore that there is no need to give a separate
ruling on the applicant's remaining complaints under the Convention
(see, for example, Kamil Uzun v. Turkey, no. 37410/97,
§ 64, 10 May 2007; Çelik v. Turkey (no. 1),
no. 39324/02, § 44, 20 January 2009; Juhnke v. Turkey,
no. 52515/99, § 99, 13 May 2008; Getiren v. Turkey,
no. 10301/03, § 132, 22 July 2008; Mehmet Eren v.
Turkey, no. 32347/02, § 59, 14 October 2008).
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant claimed 64,000 euros (EUR) in respect of
non pecuniary damage. He further claimed EUR 16,625 in respect
of pecuniary damage for loss of income during the time spent in
detention.
- The
Government contested these claims.
- The
Court does not discern any causal link between the violations found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it considers that the applicant must
have suffered non pecuniary damage which cannot be compensated
solely by the finding of violations. Having regard to the gravity of
the violations and to equitable considerations, it awards the
applicant EUR 26,000 for non-pecuniary damage.
- The Court further considers, having regard to the
particular circumstances of the case, to its finding of a violation
of Article 5 § 1 of the Convention and to the urgent need to put
an end to that violation, that the respondent State must secure the
applicant's release at the earliest possible date (see Assanidze
v. Georgia [GC], no. 71503/01, §§
201-203, ECHR 2004 II).
B. Costs and expenses
- The applicant also claimed EUR 10,829 for the costs
and expenses incurred before the domestic courts and for those
incurred before the Court. In support of his claim, the applicant
submitted invoices showing the payment of court fees at the national
level, telephone bills, a copy of a plane ticket from Istanbul to
Adana and an invoice showing the amount paid by the applicant to the
lawyer who had represented him at the national level. He also
submitted that his lawyer had spent a total of 21 days and 9 hours
on the case, and submitted to the Court a time sheet in support of
that request.
- The
Government contested this claim, noting that
only costs actually incurred could be reimbursed.
- According to the Court's case-law, an applicant is
entitled to the reimbursement of costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and were reasonable as to quantum. In the present case,
regard being had to the documents in its possession and the above
criteria, the Court considers it reasonable to award the sum of EUR
3,500 to cover costs under all heads, less the EUR 850 which the
applicant received in legal aid from the Council of Europe (see
paragraph 2 above).
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Articles 2 and 3
of the Convention (in relation to the deportation proceedings and to
the applicant's detention), as well as the complaint under Article 5
§ 1 of the Convention, admissible and the complaint under
Article 3 in relation to the alleged lack of medical assistance
inadmissible;
- Holds that the applicant's deportation to
Tunisia would be in violation of Article 3 of the Convention;
- Holds that no separate issue arises under
Article 2 of the Convention;
- Holds that there has been a violation of Article
5 § 1 of the Convention on account of the applicant's detention
at the Fatih police station and in the Kırklareli Foreigners'
Admission and Accommodation Centre;
- Holds that there has been a violation of Article
3 of the Convention on account of the applicant's detention at the
Fatih police station;
- Holds that there is no need to examine
separately the applicant's other complaints under Articles 5, 6, 8
and 13 of the Convention and Article 1 of
Protocol No. 7;
- Holds
(a) that
the respondent State must secure the applicant's release at the
earliest possible date;
(b) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following amounts to
be converted into Turkish liras at the rate applicable at the date of
settlement:
(i) EUR 26,000
(twenty-six thousand euros) in respect of non-pecuniary damage, plus
any tax that may be chargeable;
(ii) EUR
3,500 (three thousand five hundred euros) in respect of costs and
expenses, less the EUR 850 (eight hundred and fifty euros) granted by
way of legal aid, plus any tax that may be chargeable to the
applicant;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
