REPUBLIC OF TURKEY
CONSTITUTIONAL COURT
PLENARY
JUDGMENT
K.A. (2)
(Application no. 2014/13044)
NON-DISCLOSURE OF IDENTITY
President
:
Zühtü ARSLAN
Vice President
Burhan ÜSTÜN
Engin YILDIRIM
Justices
Serdar ÖZGÜLDÜR
Serruh KALELİ
Osman Alifeyyaz PAKSÜT
Recep KÖMÜRCÜ
Alparslan ALTAN
Nuri NECİPOĞLU
Hicabi DURSUN
Celal Mümtaz AKINCI
Erdal TERCAN
Muammer TOPAL
M. Emin KUZ
Hasan Tahsin GÖKCAN
Kadir ÖZKAYA
Rıdvan GÜLEÇ
Rapporteur
Cüneyt DURMAZ
Applicant
K.A.
Counsels
Atty. Abdulhalim YILMAZ
Atty. Ferdi AMCA
I. SUBJECT-MATTER OF THE APPLICATION
1. The application concerns the alleged violation of the right to life and prohibition of torture and ill-treatment of the applicant, who is a Syrian national placed in administrative detention in the Kumkapı Foreigners’ Removal Centre (“Kumkapı Centre”) pending his deportation for “posing a threat to public order or public safety or public health”, as he would face the risk of being subject to torture and ill-treatment if deported; the alleged violation of the prohibition of penalty or treatment “incompatible with human dignity” due to the conditions at the Kumkapı Centre; as well as the alleged violation of the right to personal liberty and security due to the prolongation of his administrative detention.
II. APPLICATION PROCESS
2. The applicant lodged the individual applications nos. 2014/13044 and 2014/19101 on 11 August 2014 and 5 December 2014, respectively. After the preliminary examination in administrative terms of the application letters and annexes, the deficiencies found by the Court were remedied by the applicant. It was accordingly observed that there was no other deficiency to preclude referral of the applications to the Commission.
3. On 13 April 2015 and 14 April 2015 the First Commission of the Second Section and the Second Commission of the Second Section respectively decided that the admissibility examination be conducted by the Section.
4. As regards the individual application no. 2014/19101, as the applicant’s allegation that he was facing a threat against his life or his physical or spiritual integrity was found serious, the Court “indicated an interim measure” on 10 December 2014 pursuant to Article 49 § 5 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court, which is dated 30 March 2011, as well as Article 73 of the Internal Regulations of the Constitutional Court.
5. It was decided on 15 April 2015 that the individual application no. 2014/19101 be joined with the individual application no. 2014/13044 for “being legally interrelated ratione personae”; that therefore, the individual application no. 2014/19101 be closed; and that the examination be conducted over the file no. 2014/13044.
6. On 16 April 2015 the Head of the Section decided that the examination as to admissibility and merits of the case be concurrently conducted; and that a copy of the application documents be submitted to the Ministry of Justice (“the Ministry”) for its observations.
7. The observations submitted by the Ministry to the Constitutional Court on 15 May 2015 was notified to the applicant on 22 May 2015. The applicant submitted his counter-statements against the Ministry’s observations on 15 June 2015.
8. On 5 February 2015 the applicant lodged an individual application with the Court for an interim measure for the third time. His application was given the number 2015/2243. It was held on 4 July 2015 that this individual application be joined with the individual application no. 2014/13044 for “being legally interrelated ratione personae”; that therefore, the individual application no. 2015/2243 be closed; and that the examination be conducted over the file no. 2014/13044.
9. At the meeting of 15 October 2015, the Second Section referred the individual application to the Plenary of the Court, pursuant to Article 28 § 3 of the Internal Regulations of the Court, as the individual application was by its very nature required to be adjudicated by the Plenary.
III. THE FACTS
A. The Circumstances of the Case
10. As indicated in the application form and annexes thereto, the facts may be summarized as follows:
11. The applicant, a Syrian national who was born in 1985 and residing at the town of Serekaniye, Kamışlı, Syria, left his country on 15 December 2013 due to ethnic, religious and political problems, unstable situation as well as notably the ongoing civil war and entered Turkey, along with a group of foreign nationals, through a region close to the Viranşehir district of Şanlıurfa. The applicant was arrested, along with the group, by the gendarmerie while entering the country and subsequently taken to Viranşehir. He was then released after his photo had been taken. He then went to İstanbul.
12. Taken into custody by the police on 25 April 2014 at the Zeytinburnu district by virtue of the arrest and custody order of 22 April 2014, which was issued under the investigation no. 2014/1654 of the Kızıltepe Chief Public Prosecutor’s Office, the applicant was questioned by the police for his alleged involvement in an incident taking place in Kızıltepe, Mardin.
13. On the same day the Kızıltepe Chief Public Prosecutor’s Office ordered his release following his questioning, which was noted down in a record. However, the applicant was transferred to the Kumkapı Centre by the Police Department of the Deportation Procedures and Removal Centre on 26 April 2014 at 02:15 a.m. for “ensuring the missing documents to be completed on the next workday…”.
14. By the decision issued by the Provincial Security Directorate of the İstanbul Governor’s Office (“Security Directorate”), which is dated 28 April 2014 and archive no. 47909374.52646 and file no. 2014/24024, the applicant was ordered to be placed in administrative detention pending his deportation for “posing a threat to public order or public safety or public health” pursuant to Article 54 (d) of the Law no. 6458 on Foreigners and International Protection, which is dated 4 April 2013.
15. The Kızıltepe Chief Public Prosecutor’s Office rendered, by its decision dated 13 June 2014 and no. E.2014/1654 K.2014/832, a decision of non-prosecution for lack of evidence regarding his alleged membership of an armed terrorist organization.
16. The applicant’s challenge for lifting the decision ordering his administrative detention was dismissed with final effect by the 11th Chamber of the İstanbul Magistrate’s Court by its decision dated 24 June 2014 and miscellaneous no. 2014/329 on the ground that “in the present case, the deportation order against the claimant was issued by the Governor’s Office; that as he was a foreign national, there was a risk of his fleeing and disappearing; that he also failed to submit any document indicating that he had resorted to the administrative jurisdiction for revocation of the deportation order; and that therefore, there was no irregularity in the processes conducted”. On 10 July 2014 this decision was served on the applicant’s lawyer.
17. The applicant complains of the “extremely poor” physical conditions of the Kumkapı Centre. On 25 June 2014 the applicant’s lawyer accompanied by an interpreter interviewed with him at the Kumkapı Centre. During this interview, the applicant gave the following information about the physical conditions of the Kumkapı Centre, as noted down in the interview report: “there are nearly six rooms on the 3rd floor where he is placed; each room has about 15-16 bunk-beds; he is not staying in any of these rooms as the inmates are mainly drug addicted; there are always quarrels and brawls; they -approximately 12-13 persons- therefore stay in the television room on a foam-rubber mattress; the food is sometimes of poor quality; he avails himself of fresh air once a week during his first month (Sundays); however, he has not been allowed to take fresh air for the last one month; he is staying with persons with various injuries on their bodies due to which he is probably suffering from allergy; they do not receive assistance of a doctor; police officers sometimes distribute medicines but they have never been taken to a doctor; today, an inmate has attempted to hang himself on a rope and fortunately survived due to breaking of the rope; an Algerian inmate stabbed himself and mouths of 6 Iranian nationals were sewn up with a needle; the centre where they are detained cannot be a shelter even for animals”.
18. By his letter of 25 June 2014 submitted to the İstanbul Governor’s Office, the applicant applied for international protection (refugee status) and requested to be released from the Kumkapı Centre.
19. The İstanbul 3rd Magistrate Judge’s Office asked, by its writ dated 24 July 2014 and miscellaneous no. 2014/169, the Security Directorate to submit relevant information and document regarding the decisions ordering the applicant’s deportation and placement under administrative detention.
20. On 11 August 2014 the applicant lodged an individual application with the Constitutional Court in due time against the decision of 24 June 2014 which was rendered by the 11th Magistrate’s Court. This application was assigned the number 2014/13044.
21. On 19 August 2014 the applicant applied to the Foreigners’ Department and Directorate General of Immigration Authority, Provincial Security Directorate of the İstanbul Governor’s Office and requested to be released from the Kumkapı Centre and not to be deported by making reference to the decision of non-prosecution rendered by the Kızıltepe Chief Public Prosecutor’s Office as well as the pending nature of the action brought by him on account thereof and of his individual application before the Court.
22. The action brought by him against his deportation order was dismissed by the 1st Chamber of the İstanbul Administrative Court by its decision no. E 2014/1371 K2014/1486 and dated 18 September 2014. The dismissal decision was served on the applicant on 5 November 2014.
23. In his second challenge against the administrative detention before the İstanbul Magistrate Judge’s Office on 11 September 2014, the applicant requested that his administrative detention be discontinued and his immediate release be ordered, maintaining that the Kızıltepe Chief Public Prosecutor’s Office rendered a decision of non-prosecution in respect of him; that he had applied for international protection and he was therefore under temporary protection; that the procedural safeguards set forth in Article 57 of Law no. 6458 were not afforded to him; and that his detention conditions at the Kumkapı Centre caused his physical and mental suffering as well as his being subject to maltreatment and humiliation.
24. This application was dismissed with final effect by the İstanbul 1st Magistrate Judge’s Office by its decision dated 17 September 2014 and dated 2014/1058.
25. His subsequent challenges for the third and fourth times on the same matter were also dismissed with final effect, on similar grounds, by the İstanbul 4th Magistrate Judge’s Office (decision dated 2 October 2014 and miscellaneous no. 2014/1503) and İstanbul 2nd Magistrate Judge’s Office (decision dated 7 November 2014 and miscellaneous no. 2014/2450) respectively.
26. On 5 December 2014 the applicant lodged an individual application for an interim measure with the Court, for the second time, in due time against the decision of the 1st Chamber of the İstanbul Administrative Court dated 18 September 2014. This application was assigned number 2014/19101.
27. 10 December 2014 the applicant’s request for an interim measure against his deportation was accepted by the Court, which indicates “as the alleged threat against the applicant’s life or his physical or mental integrity has been considered serious at this stage and for securing effective implementation of the non-refoulement principle -an international principle-, by virtue of Article 49 § 5 of Code no. 6216 and Article 73 of the Rules of Procedures of the Constitutional Court”. The Court accordingly ordered suspension of his deportation until a further decision.
28. Upon the interim measure indicated by the Court, the applicant’s challenge against the decision ordering his administrative detention was accepted by the İstanbul 4th Magistrate Judge’s Office by its decision dated 31 December 2014 and miscellaneous no. 2014/3324. Accordingly, the applicant’s detention was discontinued on 6 January 2015. The reasoning of the said decision is as follows:
“… IT HAS BEEN DECREED:
It appears that as indicated in the letter, dated 29 December 2014 and no. 47909374.52645(41261)S1-2014/124024, issued in reply to the writ submitted to our court by the Foreigners’ Department, Provincial Security Directorate of the İstanbul Governor’s Office, an action was taken against the person concerned for “his membership of a terrorist organization”; his deportation was ordered as per Article 54 (b), titled Persons subject to a Removal order, of the Law no. 6458 on Foreigners and International Protection; and pursuant to Article 57 § 3 of the Same Law providing for ‘the duration of administrative detention in removal centres shall not exceed six months. However, in cases where the removal cannot be completed due to the foreigner’s failure of cooperation or providing correct information or documents about their country [of origin], this period may be extended for a maximum of six additional months’, he was ordered to be placed in administrative detention for one month.
Regard being had to the file and evidence as a whole, it has been revealed that as the Constitutional Court suspended the de facto implementation of the deportation order by its decision no. 2014/19101 and dated 10 December 2014, which would render the administrative detention process dysfunctional. It has been accordingly decided that the applicant’s request be accepted and his administrative detention be discontinued pursuant to Article 57 § 6 of Law no. 6458.”
29. On 5 February 2015 following his release, the applicant lodged an individual application for an interim measure, for the third time, with the Court in due time against this act. This application was assigned number 2015/2243.
B. Relevant Law
30. Article 3 (d) and (r), Article 4, Article 53 § 3, Article 54 §§ 1 (d) and 2 and Article 55 § 1 (a) of Law no. 6458 read as follows:
“Definitions
ARTICLE 3
…
d) Applicant: a person who made an international protection claim and a final decision regarding whose application is pending;
r) International protection: the status granted for refugee, conditional refugee, and subsidiary protection;
…”
“Non-refoulement
ARTICLE 4
(1) No one within the scope of this of this Law shall be returned to a place where he or she may be subjected to torture, inhuman or degrading punishment or treatment or, where his/her life or freedom would be threatened on account of his/her race, religion, nationality, membership of a particular social group or political opinion.”
“Removal decision
ARTICLE 53
(3) Foreigner, legal representative or lawyer may appeal against the removal decision to the administrative court within fifteen days as of the date of notification. The person who has appealed against the decision to the court shall also inform the authority that has ordered the removal regarding the appeal. Such appeals shall be decided upon within fifteen days. The decision of the court on the appeal shall be final. Without prejudice to the foreigner’s consent, the foreigner shall not be removed during the judicial appeal period or in case of resort to the judgement…”
“Persons subject to a removal decision
ARTICLE 54
(1) A removal decision shall be issued in respect of those foreigners listed below who/whose:
d) pose a public order or public security or public health threat;
(2) Removal of the applicant or those granted international protection status may be ordered only in case of existence of serious indications that they pose a threat to the country’s safety or their final conviction on account of an offence posing a threat to public order.”
“Exemption from removal decision
ARTICLE 55
(1) Removal decision shall not be issued in respect of those foreigners listed below regardless of whether they are within the scope of Article 54:
a) when there are serious indications to believe that they shall be subjected to the death penalty, torture, inhuman or degrading treatment or punishment in the country to which they shall be returned to;”
31. Article 57, titled “Administrative detention and duration of detention for removal purposes”, of Law no. 6458 reads as follows:
“(1) Where foreigners within the scope of Article 54 are apprehended by law enforcement units, they shall immediately be reported to the governorate for a decision to be made concerning their status. With respect to those where a removal decision is considered necessary it shall be issued by the governorate. The duration of assessment and decision-making shall not exceed forty-eight hours.
(2) Those for whom a removal decision has been issued, the governorate shall issue an administrative detention decision for those who; bear the risk of absconding or disappearing; breached the rules of entry into and exit from to Turkey; have used false or fabricated documents; have not left Turkey after the expiry of the period granted to them to leave, without an acceptable excuse; or, pose a threat to public order, public security or public health. Foreigners subject to administrative detention shall be taken to removal centres within forty-eight hours of the decision by the [same] law enforcement unit that apprehended them.
(3) The duration of administrative detention in removal centres shall not exceed six months. However, in cases where the removal cannot be completed due to the foreigner’s failure of cooperation or providing correct information or documents about their country [of origin], this period may be extended for a maximum of six additional months.
(4) The need to continue the administrative detention shall be regularly reviewed monthly by the governorates, and when consider it necessary. For those foreigners where administrative detention is no longer considered necessary, the administrative detention shall immediately be ended. These foreigners may be required to comply with administrative obligations such as to reside at a given address and report to the authorities in form and periods to be determined.
(5) The administrative detention decision, the extension of the administrative detention period and the results of the monthly regular reviews together with its reasons shall be notified to the foreigner or, to his/her legal representative or lawyer. If the person subject to administrative detention is not represented by a lawyer, the person or his/her legal representative shall be informed about the consequence of the decision, procedure and time limits for appeal.
(6) The person placed in administrative detention or his/her legal representative or lawyer may appeal against the detention decision to the Judge of the Magistrate’s Court. Such an appeal shall not suspend the administrative detention. In cases where the petition is handed to the administration, it shall immediately be conveyed to the competent magistrate judge. The magistrate judge shall finalize the assessment within five days. The decision of the magistrate judge shall be final. The person placed in administrative detention or his/her legal representative or lawyer may further appeal to the magistrate judge for a review should that the administrative detention conditions no longer apply or have changed.
(7) Those who appeal against an administrative detention action but do not have the means to pay the attorney’s fee shall be provided legal counsel upon demand, pursuant to the Legal Practitioner’s Law no. 1136 of 19/03/1969.”
32. Article 58, titled “Removal Centres” and taking effect on 11 April 2014 pursuant to Article 125 of the same Law of Law no. 6458, reads as follows:
“Foreigners subject to administrative detention shall be placed in removal centres.”
33. Article 6 § 1 of the Temporary Protection Regulation taking effect upon being promulgated in the Official Gazette dated 22 October 2014 and no. 29153 reads as follows:
“(1) No one within the scope of this Regulation shall be returned to a place where he or she may be subjected to torture, inhuman or degrading punishment or treatment or, where his/her life or freedom would be threatened on account of his/her race, religion, nationality, membership of a particular social group or political opinion.
(2) The Directorate General may take administrative actions regarding foreigners who cannot be removed from our country pursuant to the paragraph (1) even though they are to be removed from our country pursuant to relevant legislation.”
34. Provisional Article 1 of the above-cited Regulation is as follows:
“(1) The citizens of the Syrian Arab Republic, stateless persons and refugees who have arrived at or crossed our borders coming from Syrian Arab Republic as part of a mass influx or individually for temporary protection purposes due to the events that have taken place in Syrian Arab Republic since 28 April 2011 shall be covered under temporary protection, even if they have filed an application for international protection. Individual applications for international protection shall not be processed during the implementation of temporary protection.
(2) Those among the foreigners covered under paragraph (1), who filed international protection application prior to 28 April 2011, shall be covered under temporary protection upon their request.
(3) Those who have obtained residence permits after 28 April 2011 but whose residence permits were not extended or were cancelled and those who have requested protection at the end of the duration of their visas or visa exemption period shall be covered under temporary protection without prejudice to provisions under Article 8. General provisions shall apply to those among these [foreigners] who do not request protection.
(4) Identification documents issued prior to the entry into force date of this Regulation shall substitute temporary protection identification documents until the issuance of the temporary protection identification documents laid down in Article 22. Foreigner identification number may be issued to the holders of this document under the Law No. 5490.
(5) Proceedings for entry into our country from Syria or exit from our country to Syria by third country nationals, excluding the foreigners covered under paragraph (1), shall be conducted at the border gates and in the framework of general provisions.”
35. Articles 17 and 23 of the Law no. 5683 on Residence and Travels of Foreigners in Turkey, which is dated 15 July 1950 and was abolished by Article 124 § 1 of Law no. 6458, read as follows:
“Article 17: Foreigners who take refuge in Turkey for political reasons can only reside in the localities allowed by the Ministry of Internal Affairs.
Article 23: Persons whose expulsion has been ordered but who cannot leave Turkey because they cannot obtain their passport or for any other reasons, shall be obliged to stay in the places indicated to them by the Ministry of Internal Affairs.”
36. Article 33, titled “Prohibition of expulsion or return ("refoulement")”, of the Convention relating to the Status of Refugees, which was adopted on 28 July 1951 and promulgated in the Official Gazette dated 5 September 1961 and no. 10898, reads as follows:
“1. No Contracting State shall expel or return (" refouler ") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that country.”
37. Article 3 of the European Convention on Establishment, which was adopted on 13 December 1955 and promulgated in the Official Gazette dated 12 April 1989 and no. 3527, reads as follows:
“1) Nationals of any Contracting Party lawfully residing in the territory of another Party may be expelled only if they endanger national security or offend against public order or morality.
2) Except where imperative considerations of national security otherwise require, a national of any Contracting Party who has been so lawfully residing for more than two years in the territory of any other Party shall not be expelled without first being allowed to submit reasons against his expulsion and to appeal to, and be represented for the purpose before, a competent authority or a person or persons specially designated by the competent authority.
3) Nationals of any Contracting Party who have been lawfully residing for more than ten years in the territory of any other Party may only be expelled for reasons of national security or if the other reasons mentioned in paragraph 1 of this article are of a particularly serious nature.”
38. Article 13 of the International Covenant on Civil and Political Rights reads as follows:
“An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.”
39. Standards adopted by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on the matter (CPT/Inf/E (2002) 1 – Rev. 2010 see http://www.cpt.coe.int/lang/tur/tur-standards.pdf) insofar as relevant read as follows:
“48. Specific mention should be made of outdoor exercise. The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard (preferably it should form part of a broader programme of activities). The CPT wishes to emphasise that all prisoners without exception (including those undergoing cellular confinement as a punishment) should be offered the possibility to take outdoor exercise daily. It is also axiomatic that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather.
29. In the view of the CPT, in those cases where it is deemed necessary to deprive persons of their liberty for an extended period under aliens legislation, they should be accommodated in centres specifically designed for that purpose, offering material conditions and a regime appropriate to their legal situation and staffed by suitably-qualified personnel. The Committee is pleased to note that such an approach is increasingly being followed in Parties to the Convention.
Obviously, such centres should provide accommodation which is adequately furnished, clean and in a good state of repair, and which offers sufficient living space for the numbers involved. Further, care should be taken in the design and layout of the premises to avoid as far as possible any impression of a carceral environment. As regards regime activities, they should include outdoor exercise, access to a day room and to radio/television and newspapers/magazines, as well as other appropriate means of recreation (e.g. board games, table tennis). The longer the period for which persons are detained, the more developed should be the activities which are offered to them.
79. Conditions of detention for irregular migrants should reflect the nature of their deprivation of liberty, with limited restrictions in place and a varied regime of activities. For example, detained irregular migrants … should be restricted in their freedom of movement within the detention facility as little as possible…”
40. Articles 1 and 4 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the Resolution no. 43/173 of the General Assembly of the United Nations, which is dated 9 December 1988, read as follows:
“Principle 1 – Liability to treat in a humane manner
All persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person.”
Principle 4 – Judicial review of detention and other measures
Any form of detention or imprisonment and all measures affecting the human rights of a person under any form of detention or imprisonment shall be ordered by, or be subject to effective control, of a judicial or other authority.”
41. Relevant part of the Resolution no. 44 on “Detention of Refugees and Asylum-Seekers”, which is issued by the Executive Committee of the UN High Commissioner for Refugees, reads as follows:
“The Executive Committee,
Recalling Article 31 of the 1951 Convention relating to the Status of Refugees.
(f) Stressed that conditions of detention of refugees and asylum seekers must be humane. In particular, refugees and asylum-seekers shall, whenever possible, not be accommodated with persons detained as common criminals, and shall not be located in areas where their physical safety is endangered.”
42. The Human Rights Institution of Turkey (“HRIT”) issued a Report on İstanbul Removal Centre of 2014 with respect to the Kumkapı Centre. The visit forming a basis for the report was paid on 2 May 2014, which was about one week after the applicant was taken to the Kumkapı Centre, namely 26 April 2014. In the report which was also available in the Institution’s web-site (see www.tihk.gov.tr/www/files/5476057c62b42çpdf), comprehensive information is given on the qualifications of the Kumkapı Centre as well as the services provided for those placed in this Centre.
43. Certain information included in this report and needed to be taken into consideration with respect to the applicant is as follows:
“A. INFORMATION OBTAINED FROM THE CENTRE’S AUTHORITIES
13. At the İstanbul Foreigners’ Removal Centre, there are 350 persons by 2 May 2014. On 28 April 2014, the total inmates placed in the centre was 384 of whom 228 were male, 149 were female and 7 were children.
- Every day, on average 30 or 40 persons are taken to the Centre and persons nearly in the same number leave the Centre.
- If the foreigner does not wish to return his country and has lodged an application, the asylum process shall last for 3-4 months on average.
- Sağlık A.Ş., a company working under the Metropolitan Municipality, carries out general cleaning once every two months. Wards are cleaned by the inmates.
- A doctor pays a visit to the Centre once a week on Thursdays. Those who are sick are provided with medicine.
- A nurse is available at the Centre between 08:00 a.m. and 05:00 p.m.. In case of any emergency, 7/24 ambulance service is provided.
- Daily allowance for food is 9 Turkish liras (TRY), and the food service is provided by the firm winning the tender. This amouınt is inadequate given the conditions of İstanbul. Inmates are provided with hot meals for lunch and dinner, and monthly calorie calculation is taken into consideration.
- During seasons when the weather is nice, inmates are allowed to take fresh air after 05:00 p.m.. However, they are not allowed to do so in winters in order to avoid them getting sick. Tha yard is allocated for the use of officials from the security directorate and for vehicles entering and existing the Centre.
B. INFORMATION OBTAINED FROM THE INMATES
14. In the place separated from the administrative units with iron doors, there are wards (units). The wards’ doors are open. It appears that in general, the wards are very dirty, uncared and over-crowded; that female inmates are washing their cloths by hand; that and there are no duvet covers and pillows. There is a large hall used as a corridor and dining hall. There are three sports equipment in the corridor.
C. OBSERVATIONS AND ASSESSMENTS
1. Not Allowing the Inmates to Take Fresh Air
16. The Centre’s administrator stated, during the interview, that the administration was trying to provide the inmates with the opportunity of taking fresh air at the yard for 45 minutes after 05:00 p.m. on weekdays and for 2-3 hours on a daily basis at weekends; that however, the inmates were not allowed to take fresh air during winter for the fear that they might get sick, and in the same vein, the inmates did not in fact wish to do so due to cold. The administrator also noted that there was no place where the inmates could safely take fresh air.
17. The inmates interviewed during the inspection also noted that they were not provided with the opportunity of fresh air as indicated. The visit was paid in May. The last time when female inmates were allowed to go out to the yard was two weeks ago. There were inmates who noted that they had been in the Centre for three or four months during which they were allowed to go out only twice and who had a one-year-old baby.
21. In the same vein, the report of 2012 issued by the Human Rights Investigation Committee of the Grand National Assembly of Turkey indicates “…placing illegal migrants in a place with no opportunity to take fresh air as they might flee is not found appropriate.” It is inadequate for the inmates to go out for a short time only once a week due to understaffing. To take fresh air is a requisite of the right to life, and inmates should be ensured to take fresh air, at any time they wish, on every day of the week”.
23. However, the main reason for not allowing the inmates to go out to the yard is that there are vehicles entering and exiting the Centre and therefore, the security could not be maintained; and that if they were allowed to go out in winter, they would probably get sick. In this respect, the administration noted that as parking was not allowed, during the working hours, around the Centre given its location, the yard was therefore used as a parking area.
24. As regards the inmates’ inability to go out to the yard, the administration pointed out the question of security at the yard as it was assigned as an area whereby vehicles entered and exited the Centre and where they were parked. Therefore, the inmates were not allowed to go out to the yard as they might flee.
2. Overcrowding
29. Normal capacity of the İstanbul Foreigners’ Removal Centre is 300 in total, out of whom 200 are male and 100 are female. During the first week of the inspection, there are 384 inmates placed in the Centre. The Non-Governmental Organizations also state that there are generally 400-500 inmates in the Centre.
30. In a place of 64 square meters, 40 inmates are being held. During the inspection at the wards, it has been observed that the bunk beds are attached to each other, and the wards are overcrowded to an intolerable extent. As there is no empty bunk bed, some of the inmates are sleeping on the ground on blankets.
31. Even in the capacity of 300 inmates, a space of nearly 3 square meters is assigned per capita in the Foreigners’ Removal Centre, which is less than a half of the space laid down in the CPT standards. Besides, the Centre is sheltering 400-500 inmates on average. Therefore, it is undoubtedly far below the standard set by the CPT (a space of minimum 7 square meters for each detainee or convict) (for CPT’s standard, see CPT/Inf (92)3 § 43 http://www.cpt.coe.int/turkish.htm). As a matter of fact, this issue was discussed in the ECHR’s judgment in the case of Yarashonen where the ECHR noted that when the number of male inmates was considered to be 297 as indicated in the GNAT’s report, the space allocated per capita was 2.27 square meters, which was even per se in breach of Article 3 of the Convention” (see footnote 5).”
44. In the ECHR’s judgment in the case of Yarashonen v. Turkey (no. 72710/11, 24 June 2014, § 18), the information provided by the Turkish Government on the Kumkapı Foreigners’ Removal Centre is summarized as follows:
“The Government submitted that the Kumkapı Centre where the applicant was detained had a capacity of 300 persons. The detainees were accommodated on three floors: the first two floors were reserved for male detainees, and the third floor for females. There were five dormitory rooms on each floor, measuring 50, 58, 69, 76 and 84 sq. m respectively. There were fifteen to twenty beds in each of the ten rooms reserved for male detainees and all rooms were sufficiently ventilated. There were also five showers and six toilets per floor, as well as a cafeteria measuring 69 sq. m, where breakfast, lunch and dinner were served daily on each floor. The detainees had the right to outdoor exercise in suitable weather conditions. A doctor was present on the premises every Thursday and the detainees also had access to medical care in cases of emergency. As for the hygiene in the facility, there were six cleaning staff working full time at the removal centre, and the building was disinfected whenever necessary.”
45. The Human Rights Investigation Commission of the GNAT paid an official visit to the Kumkapı Centre in May 2012. In the report issued thereafter, it is indicated that although it is reported that the Centre had a capacity of 300 persons, there were a total of 397 inmates accommodating at the Centre; 391 were males, 97 were females and 7 were children.
IV. EXAMINATION AND GROUND
46. The Constitutional Court, at its session of 11 November 2015, examined the application and decided as follows:
A. The Applicant’s Allegations
47. The applicant, a Syrian national and placed in administrative detention at the Kumkapı Centre by the date when he lodged his first two individual applications, maintained that he had been placed in administrative detention for deportation based on the intelligence that he was a member of the terrorist organization; that due to dismissal, with final effect by the first instance court, of his action brought against his deportation order, his deportation came into question; that the conclusion was reached on the basis of the administration’s defence submissions; that the inferior court failed to take into consideration the fact that a decision of non-prosecution had been rendered at the end of the criminal investigation conducted against him; that although he had requested international protection and he was taken under temporary protection, he was still placed in administrative detention unlawfully; that in case of being deported, he would face the risk of being killed, tortured and ill-treated; and that he was placed in administrative detention in a way that would harm his physical and mental integrity and under conditions incompatible with human dignity. He accordingly alleged that there had been violations of the right to life, the prohibition of torture and maltreatment, the right to property, the right o legal remedies as well as the right to liberty and security. He also requested the Court to indicate an interim measure pursuant to Article 73 of the International Regulations of the Constitutional Court and to be awarded compensation.
B. The Court’s Assessment
48. The Court, which is not bound by the applicant’s legal qualification, examined his complaints under the right to life, the prohibition of torture and maltreatment and the right to personal liberty and security, safeguarded by Articles 17 and 19 of the Constitution, as well as in conjunction therewith, the right to legal remedies safeguarded by Article 40 of the Constitution.
1. Alleged Violation of Article 17 of the Constitution due to the risk of being killed and being subject to torture and ill-treatment in case of deportation
49. The applicant maintained that in case of his deportation to Syria where there had been turmoil since 2011, he would face the risk of being killed as well as being subject to torture and torment.
50. In its observations, the Ministry, making a reference to the ECHR’s judgments, noted with respect to the applicant’s allegations that the Contracting Parties were entitled to monitor the foreigners’ entry into and stay within the country as well as their deportation; that the right to political asylum was not laid down in the European Convention on Human Rights (“Convention”) or its Protocols; that a Contracting Party was in principle entitled to accept a foreigner into the country, to deport a foreigner having illegally entered, and trying to stay within, the country or to repatriate the foreigner to the country where he had committed an offence; as well as to expel the foreigner, who had committed an offence in another country, to that country; and that however, these powers conferred on the State were limited to the risk of violation of human rights; It also noted that Article 3 of the UN Convention of 1984 against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment prohibits “expulsion, refoulement or extradition of a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”; that according to the ECHR, if there were substantial grounds to believe that there was a real risk that he would be subjected to treatment contrary to Article 3 in the event of his return, the foreigner’s deportation may engage the responsibility of that State under the Convention, and in that case, Article 3 of the Convention imposed an obligation not to deport the person in question to that country.
51. The Ministry also stated in its observations that the civil insurrection erupting in Syria on 15 March 2011 turned into a civil war during the period having elapsed; that the instability in the country led the Syrians to engage in forced migration in pursuit of safe places; that pursuant to the Directive no. 62 on Acceptance and Accommodation of the Citizens of the Syrian Arab Republic and Stateless Persons Residing in the Syrian Arab Republic, who had entered Turkey for mass asylum (adopted by the Ministry of Internal Affairs on 30 March 2012), the Syrians in Turkey were taken under temporary protection; that the persons arriving in Turkey from the Syrian Arab Republic since 28 April 2011 acquired a legal status by virtue of Law no. 6458 and Article 1 of the Temporary Protection Regulation of 13 October 2014, which was put into force pursuant to Article 91 of Law no. 6458; that accordingly, citizens of the Syrian Arab Republic as well as stateless persons residing in the Syrian Arab Republic, who were under temporary protection could not be deported; however, applications lodged individually by these persons for international protection would neither be put in process. The Ministry further indicated that as maintained by the applicant, he filed an application with the İstanbul Governor’s Office for being granted refugee status on 25 June 2014 but he could not receive any favourable or unfavourable reply; that he brought this claim also before the 1st Chamber of the İstanbul Administrative Court during the proceedings whereby he challenged the deportation order against him; and that the administrative court dismissed the applicant’s request for revocation of the deportation order but did not make any inquiry and assessment as to the applicant’s legal status (whether being under temporary protection or an asylum-seeker).
52. Article 46 of Code no. 6216, titled “Persons who have the right to individual application”, lists the persons who may lodge an individual application. According to this provision, three basic preconditions must exist concurrently in order for a person to submit an individual application to the Constitutional Court. These preconditions are: “a current right of the applicant must be violated” due to an act, action or negligence of the public authority which gives rise to the application and is alleged to have caused a violation; the individual must be “personally” and “directly” affected by this violation; and as a result, the applicant must bring himself/herself forward as a “victim” (see Onur Doğanay, no. 2013/1977, 9 January 2014, § 42).
53. Removal of the victim status depends especially on the nature of the right alleged to be breached, justification of the decision finding a violation as well as on the question whether the losses suffered by the relevant party continue or not following the decision. The conclusion as to whether the redress provided for the applicants is appropriate and sufficient may be reached after all circumstances of the case are assessed by having regard to the nature of the breach of the fundamental right and freedom in question. (Sadık Koçak and Others, § 84).
54. Within this framework, in cases where execution of a deportation order is no longer possible in respect of the persons whose deportation has been ordered, these persons cannot be said to have victim status. The word “victim” denotes that the person concerned has been deported or run the risk of being directly deported. Therefore, a person cannot be considered to be a victim due to deportation orders which have been withdrawn, which are temporary or are not permanently enforceable. In cases where execution of a deportation or extradition order has been stayed indefinitely or otherwise deprived of legal effect, the same stance must be adopted (for the ECHR’s judgment in the same vein, see A.D. and Others v. Turkey, no. 22681/09, 22 July 2014, §§ 79-80).
55. In the impugned case, it has been observed that a deportation order was issued against the applicant who subsequently brought an action before the administrative court for revocation of the order; however, his action was dismissed. As noted in the Ministry’s observations, the applicant filed an application, with the İstanbul Governor’s Office on 25 June 2014, for international protection (refugee status); however, his application was not concluded. On the other hand, pursuant to Provisional Article 1 of the Temporary Protection Regulation, which took effect upon being promulgated in the Official Gazette dated 22 October 2014, it is set forth that those who have arrived in Turkey from the Syrian Arab Republic since 28 April 2011 are under temporary protection and cannot be deported; and that however, their individual applications for international protection will not be put in process. In his action brought for revocation of the deportation order, the 1st Chamber of the İstanbul Administrative Court dismissed his request but did not make any inquiry and assessment as to his legal status; namely whether he was entitled to a temporary protection status or to an international protection.
56. In the system introduced through Law no. 6458, the applicant has the status of an applicant pursuant to Article 54 § 2 of this Law by 25 June 2014 when he primarily applied for international protection. Pursuant to the same paragraph, a deportation order may be issued only in case of severe indication that the person concerned poses a threat to the country’s safety or is convicted of an offence posing a threat to public order” (see above § 30). The applicant, a Syrian citizen, acquired temporary protection status by virtue of Provisional 1 of the Temporary Protection Regulation taking effect on 22 October 2014. It has been accordingly envisaged that he could not be deported; and nor his application for international protection shall be put in process. It must be ascertained how these changes in the applicant’s legal status have a bearing on his deportation for “posing a threat to public order or public safety or public health”, which forms a basis for his deportation order and administrative detention order issued pursuant to Article 54 (d), and thereby on his being placed in administrative detention. The decision rendered by the administrative court, given the applicant’s then legal status, at the end of the action brought against the deportation order -but without considering the temporary protection status obtained by the applicant subsequent to the final decision- as well as the decisions issued by the magistrate judge’s offices in concluding the applicant’s challenges against the administrative detention order do not have any decisive effect on his current legal status within the meaning of Law no. 6458.
57. The Temporary Protection Regulation defines “temporary protection” as the protection afforded to foreigners who were forced to leave their country but could not return there; who have arrived at, or crossed, our borders in mass or individually during this mass immigration with a view to obtaining urgent and temporary protection and whose request for international protection cannot be individually taken into consideration. In this sense, in line with the international law and practices, Turkey affords “temporary protection” to the foreigners of Syrian nationality by way of fulfilling the following basic elements of the temporary protection: 1. Unconditional access to the country by virtue of open border policy; 2. Implementation of non-refoulement principle without any exception; 3. Meeting the basic needs of those who have entered the country.
58. The UN High Commissioner for Refugees acknowledges that Syrians, refugees and stateless persons from Syria, who are seeking for international protection as a part of the temporary protection regime put into effect by the Turkish Government, have been accepted to Turkey and shall not be repatriated to Syria against their will.
59. In the light of the above-cited findings, it has been observed that there is no deportation order which has been executed or likely to be executed actually in respect of the applicant granted temporary protection status of which safeguards are set out by the Temporary Protection Regulation issued on the basis of Law no. 6458; that he cannot be deported under Article 17 of the Constitution; that it is therefore impossible to accept that the applicant has the victim status in terms of the alleged violations of the right to life or the prohibition of torture and maltreatment as he might face the risk of being subject to a treatment likely to give rise to such violations.
60. As a matter of fact, upon the interim measure indicated by the Court in respect of the applicant, the İstanbul 4th Magistrate Judge’s Office, examining his challenge to the administrative detention order, decided by its decision of 31 December 2014 to discontinue his administrative detention as well as to release him if the deportation process could not be immediately completed. Accordingly, the applicant being notified of the necessity to submit signature at fortnightly intervals was released on 6 January 2014.
61. For these reasons, the Court has found inadmissible the alleged violations of the right to life and the prohibition of torture and maltreatment due to deportation for incompatibility ratione personae as the applicant had no victim status.
2. Alleged violations of Articles 17 and 40 of the Constitution due to inadequate conditions of his administrative detention pending deportation
62. The applicant maintained that Articles 17 and 40 of the Constitution had been breached on the grounds that he was placed in administrative detention at the Kumkapı Centre, pending his deportation, in a manner that would impair his physical and mental integrity and under conditions incompatible with human dignity; and that there was no effective remedy to challenge these conditions.
63. In its observations, the Ministry noted that as the domestic legal remedies did not fulfil the standards set by the ECHR, Law no. 6458 was adopted by way of a legislative amendment; that the Law entered into force after being promulgated in the Official Gazette dated 11 April 2013 and no. 28615; and that it was also indicated in the same Law that the contested provisions of the legislative amendments would take effect one year later. The Ministry further stated that in the present case, the applicant filed challenge, twice under Law no. 6458, to his administrative detention at the removal centre, before the magistrate judge’s offices and also brought an action before the administrative court for annulment of his deportation; and that however, as it appeared from the petition submitted by the applicant, he had not filed a request, with the relevant administrative authority, regarding a change in the poor living conditions of the Kumkapı Centre.
64. In his counter-statements against the Ministry, the applicant maintained that filing an application with the administration for his complaints regarding the conditions at the Kumkapı Centre would not be effective in practice; that no reply was taken in return for the applications filed for several persons with the Security Directorate on various dates, and written and oral applications filed in respect of him were also left unanswered; that besides, he was detained at the removal centre without his consent, and therefore, the liability resulting from the incompatibility of the detention conditions with Article 17 of the Constitution was not attributable to him; that for instance, his petition of 30 October 2014 regarding his dental treatment was left unanswered; and that there was no effective legal remedy to challenge the conditions he had suffered.
a. Admissibility
65. In order to decide whether the legal remedies have been exhausted insofar as it concerns the allegations raised in this part of the application, the right to legal remedies safeguarded by Article 40 of the Constitution, must be examined, under its substantive aspect, in conjunction with Article 17 of the Constitution.
b. Merits
i. Alleged violation of the right to legal remedies enshrined in Article 40 of the Constitution in conjunction with Article 17 thereof
66. The applicant maintained that his detention conditions at the Kumkapı Centre were in breach of his physical and mental integrity as well as incompatible with human dignity; that there were no effective administrative and judicial remedy whereby he could raise his complaints.
67. Article 40, titled “Protection of fundamental rights and freedoms”, of the Constitution reads as follows:
“Everyone whose constitutional rights and freedoms have been violated has the right to request prompt access to the competent authorities.
The State is obliged to indicate in its proceedings, the legal remedies and authorities the persons concerned should apply and time limits of the applications…”
68. Article 13, titled “Right to an effective remedy”, of the European Convention on Human Rights (“Convention”) reads as follows:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
69. Article 40 of the Constitution secures the right to request prompt access to the competent authority for everyone whose rights and freedoms enshrined in the Constitution have been violated.
70. The administrative and judicial remedies which are prescribed for acts or actions allegedly constituting a violation and all of which must be exhausted before lodging an individual application with the Court are to be accessible, capable of offering redress as well as, once exhausted, to offer a reasonable prospect of success for affording redress for the alleged violation. Therefore, the existence of these remedies must be sufficiently certain not only in theory but also in practice or must be at least proven not to be ineffective (see Ramazan Aras, no. 2012/239, 2 July 2013, §§ 28-29).
71. The scope of the safeguard afforded to persons under the right to an effective remedy varies depending on the nature of the applicant’s complaint. However, it must be noted in general that the legal remedy prescribed by Article 40 of the Constitution must be “effective” in law as well as in practice in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (for the ECHR’s judgment in the same vein, see Ananyev and Others v. Russia, no. 42525/07 and 60800/08, 10 January 2012, § 96).
72. However, in cases where the right in question is the prohibition of “torture”, “maltreatment”, or penalty or treatment “incompatible with human dignity”, which is safeguarded by Article 17 of the Constitution, a legal remedy may be said to be effective only when it is capable of preventing the alleged violation -and in certain circumstances must be punitive as well- and, if necessary, of providing reasonable redress for any violation that has already occurred as a complementary element, as a requisite of the absolute nature of this prohibition. Otherwise, merely providing a redress for such kind of violations would (partially/implicitly) justify those suffered by persons subject to such treatments as well as diminish, to an unacceptable degree, the State’s liability to ensure the detention conditions corresponding to the standards enshrined by the Constitution. Therefore, as in the present case where what is complained of is “detention under conditions incompatible with human dignity”, a remedy which is capable of ensuring improvement/enhancement in detention conditions as well as offering redress for damage resulting therefrom may be said to be effective. As a matter of course, as regards the applications where the applicant is no longer detained at the impugned place, there must exist compensatory remedies to cover pecuniary and non-pecuniary damages that have already sustained (for the ECHR’s judgment in the similar vein, see Anenyev and Others v. Russia, § 98).
73. The ECHR also acknowledges that the special importance attached by the Convention to that provision requires that the States establish, over and above a compensatory remedy, an effective mechanism in order to put an end to any such treatment rapidly (see Yarashonen v. Turkey, § 61).
74. In the present case, it has been observed that the applicant lodged his first two applications in the course of his detention at the Kumkapı Centre and his last application following his release by virtue of the Court’s decision. Accordingly, the remedy, which the applicant should have, must be capable of both improving the alleged poor conditions of the Kumkapı Centre and of offering redress for the damages he sustained on account of these conditions.
75. It is set out in Article 53 of Law no. 6458 that a foreigner in respect of whom a deportation order has been issued may challenge the deportation order before the administrative court within 15 days as from the notification of the order. This remedy provides for conducting the general review by the administrative court in respect of the impugned deportation act but does not include any information as to the scope of the examination to be conducted by the administrative court in respect of special considerations.
76. It is set forth in Article 57 of Law no. 6458 that the relevant governor’s office shall regularly assess whether the continued administrative detention is necessary on monthly basis; that if there is no such necessity, the administrative detention of the foreigner concerned shall be immediately ended; that the administrative detention order, the extension of such order and the results of the monthly regular assessments by the Governor’s Office along with the grounds thereof shall be notified to the foreigner, or his legal representative or lawyer; that the foreigner under administrative detention or his legal representative or lawyer may challenge these orders before the magistrate judge’s office; and that furthermore, in case of any alleged discontinuance of, or change in the conditions justifying, administrative detention, the person concerned may once again apply to the magistrate judge.
77. The legal remedy set forth in Article 57 of Law no. 6458 does not afford a special type of administrative or judicial mechanism which provides the opportunity for a review of the compatibility of detention conditions with Article 17 § 3 of the Constitution or in case of an unconstitutionality, for improving the conditions or ending the detention, which sets the conditions of detention, and which involves judicial review of such conditions. It has been observed that the remedy before the magistrate judge’s offices, which is contemplated as a judicial remedy, is intended for review of the lawfulness of the administrative detention order; that in the present case, upon the applicant’s challenges against this order, the incumbent magistrate judge’s offices made assessments merely to that end but not in respect of the allegedly poor conditions of detention put forward by the applicant in his petition.
78. In the present case, the Ministry did not provide, with the Constitutional Court, any information demonstrating that there was an administrative and judicial remedy capable of improving the conditions at the Kumkapı Centre. In its observations, the Ministry did neither submit any information indicating that the applicant’s written requests for improving his detention conditions and ending his detention had been replied. On the other hand, the applicant informed the Court of the fact that his written and oral requests for receiving dental treatment had been left unanswered by the administration, which was the same for the other inmates of the Kumkapı Centre. Besides, the applicant substantiated his allegation that the legal arrangement whereby the relevant governor’s office would regularly assess whether the continuation of administrative detention was necessary on monthly basis and, if not necessary, the administrative detention would be immediately ended was not applicable in practice in that he could not receive any reply in spite of having filed applications with the Security Directorate, the Directorate General of Immigration Authority and the magistrate judges (see §§ 21-25). Besides, even if it is assumed that the detention conditions at the foreigners’ removal centre are subject to review, it is not clear on the basis of which standards these standards would be assessed.
79. The report issued by the HRIT contains the following information in this respect: “… It is not possible in practice for the foreigners to complain of the human rights violations they have sustained at the removal centres. As the applicants are foreigners, do not know Turkish and have limited access to legal assistance, there are very few complaints raised as regards the judicial review of the Centre and its officers. As those detained at the Centre are generally deported, it is hardly possible for them to come back to Turkey. Therefore, the impugned incidents are not brought before the judicial authorities.”
80. The ECHR also dealt with applications of the same nature as that complained of in the present case. In its relevant judgments, the ECHR notes that the Turkish Government did not, however, submit a single judicial or administrative decision showing that a migrant detainee had been able to vindicate his or her rights by using the remedies suggested, that is, where recourse to an administrative court or authority had led to the improvement of detention conditions and/or to an award of compensation for the anguish suffered on account of the adverse material conditions; and that it likewise failed to provide an explanation as to why they could not submit any such examples (see Yarashonen v. Turkey, § 63; and Abdolkhani and Karimnia v. Turkey, no. 30471/08, 22 September 2009, § 25).
81. In the light of these findings, it has been observed that there was no effective administrative and judicial remedy, available in theory and in practice, for the applicant placed in administrative detention for deportation.
82. For these reasons, it has been concluded under the particular circumstances of the present case that as regards the alleged violation of Article 17 of the Constitution due to the impugned detention conditions, there was no effective legal remedy as set forth in Article 40 of the Constitution and thus, there was a breach of this right.
ii. Alleged Violation of Article 17 of the Constitution due to detention conditions at the Kumkapı Centre
83. The applicant maintained that the Kumkapı Centre was overcrowded and dirty; that as there was no space in the dormitory rooms, he stayed in the TV room with 12 or 13 persons on a foam-rubber mattress; that there was no standard in the quality of foods; that he had access to fresh air once a week at the outset but he could never avail of this opportunity in the recent period; that the persons accommodated in the Centre were troubled and diseased and he was worried that they could harm him or he could fall sick; that there was no sufficient treatment opportunity; that the procedures carried out were not subject to judicial review; and that he had been placed at the Kumkapı Centre for over 8 months in total under inhuman and degrading conditions. He accordingly alleged that Article 17 of the Constitution and Article 3 of the Convention were violated (see § 17).
84. In its observations, the Ministry indicated, by making a reference to the ECHR’s judgements, as regards the allegations raised in this part that overcrowding of the places where the persons who are under administrative detention were placed as well as inadequacy of the services concerning heating, health, sleep, food, recreation opportunities and communication with the outside world may amount to inhuman or degrading treatment; that cumulative effects of the detention conditions must also be taken into consideration in assessments as to such conditions; that the alleged ill-treatment must be substantiated with appropriate evidence; that the ECHR has several times dealt with the conditions at the Kumkapı Centre; that the document concerning the applicant’s detention conditions at the Kumkapı Centre, which was submitted to the Ministry, did not include sufficient information, and the Ministry could not also exchange any correspondence on the matter within the prescribed period; and that for these reasons, it would be much more appropriate to take into consideration the opinion submitted by the Ministry of Internal Affairs in assessing whether the applicant’s detention conditions were contrary to Article 3 of the Convention and Article 17 of the Constitution.
85. Any information on the detention conditions of the Kumkapı Centre at the relevant time was submitted neither by the Ministry nor by the Ministry of Internal Affairs although requested. However, the above-cited report of the HRIT, dated November 2014 (see §§ 42 and 43), includes comprehensive information on the ventilation, cleaning, health-care and food provision opportunities provided for those placed at the Kumkapı Centre. It is indicated in the report that the delegation paying the visit, which formed the basis for the report, was consisted of the members and experts of the HRIT as well as academicians, representatives of the non-governmental organisations and lawyers; that along with the negotiations held with the official from the Directorate General of Immigration Authority and the Centre’s administrator, one-on-one negotiations were held with those accommodated at the Centre, and thereby obtaining information on the general conditions and services of the Kumkapı Centre; and that the units within the Centre notably the men’s and women’s wards were visited and inspected.
86. Although there are certain discrepancies, for the Court, between the issues asserted by the applicant in support of his allegations and the findings and conclusions drawn from the above-cited report, the Court has considered that it has sufficient material and substitutive elements capable for ensuring assessment of the applicant’s detention conditions at the Kumkapı Centre.
General Principles
87. Article 17 of the Constitution safeguards everyone’s right to protect and improve their corporeal and spiritual existence. The first paragraph thereof is intended for protecting human dignity. Its third paragraph provides for that no one shall be subjected to “torture” or “mal-treatment” and that no one shall be subjected to “penalties or treatment incompatible with human dignity”.
88. The obligation incumbent on the State to respect for individual’s right to protect and improve his corporeal and spiritual existence primarily requires public authorities not to interfere with this right; in other words, to avoid harming the physical and mental integrity of the individuals as specified in Article 17 § 3 of the Constitution. It is the State’s negative duty stemming from its obligation to respect for the individuals’ physical and mental integrity (see Cezmi Demir and Others, no. 2013/293, 17 July 2014, § 81).
89. For a treatment to fall into Article 17 § 3 of the Constitution, it must have attained the minimum threshold of severity. This minimum threshold may vary and must therefore depend on the particular circumstances of each case. In this sense, in determining the level of severity, factors such as the duration of impugned treatment, its physical and mental effects as well as sex and age of the applicant; and state of health of the victim are of importance (see Tahir Canan, no. 2012/969, 18 September 2013, § 23). The aim and motivation of the alleged treatment may also be added to these factors (see Cezmi Demir and Others, § 83).
90. Given its effects on individual, ill-treatment is graded and defined with different terms in the Constitution and the Convention. Therefore, it appears that the expressions included in Article 17 § 3 of the Constitution involves difference not in terms of intensity. In order to ascertain whether a treatment may be qualified as “torture”, it is necessary to consider the distinction between the notions of “mal-treatment” as well as treatment “incompatible with human dignity” and the notion of torture that are specified in the said provision (see Cezmi Demir and Others, § 84).
91. Less severe treatments degrading in nature, which arouse feelings of fear, anguish or inferiority capable of humiliating and embarrassing individuals or which cause the victim to act against his own will and conscience, may be characterised as “treatment or penalty incompatible with the human dignity” (see Tahir Canan, § 22). Unlike “mal-treatment”, such treatment creates, beyond any physical or mental suffering, a humiliating or degrading effect on the individual (see Cezmi Demir and Others, § 89).
92. As cited above (see § 89), in order to determine under the scope of which notion a treatment falls, each concrete case must be assessed in the light of its own particular circumstances. Although public nature of a treatment plays a role in its qualification as a degrading treatment which is incompatible with human dignity, the sense of inferiority felt by the individual may also suffice, in certain circumstances, to form such ill-treatment. Besides, it is also taken into consideration whether the treatment is applied with the intent of humiliation or degradation. However, the failure to establish such an intent would not mean that the treatment does not amount to an ill-treatment. Degrading treatments in the form of poor detention conditions, practices suffered by the detainees, discriminatory behaviours, libellous expressions by the public officers and providing individuals with unusual foodstuff may also amount to treatment “incompatible with human dignity” (see Cezmi Demir and Others, § 90).
93. As in the present case, an individual may be arrested or placed in detention pending his deportation (see Rıda Boudraa, no. 2013/9673, 21 January 2015, § 73). For the material conditions -to which the foreigners placed in administrative detention for this purpose have been subjected- to fall into the ambit of Article 3 of the Convention and Article 17 of the Constitution, they must attain a minimum threshold of severity. In making such an assessment as to this minimum threshold of severity, all information of the conditions, notably the duration of the impugned treatment, its physical or mental effects as well as the victim’s sex, age and state of health must be taken into consideration (see Rıda Boudraa, § 60; for the ECHR’s judgments in the same vein, see Kafkaris v. Cyprus, no. 21906/04, 12 February 2008, § 95; and Yarashonen v. Turkey, § 71).
94. A treatment is described as “inhuman”, if it has been premeditated and has caused actual bodily injury or physical or mental suffering, and degrading if it has been “such as to arouse in [its] victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Rıda Boudraa, § 61).
95. In determining whether a penalty or treatment is “degrading” within the meaning of Article 17 of the Constitution and Article 3 of the Convention, it is necessary to ascertain whether the aim of this penalty or treatment is to offend and humiliate the person concerned as well as, given its effects, whether the measure has a bearing on his personality. However, in the absence of any such motivation, it cannot be said that the probability of a breach of Article 17 of the Constitution is out of the question. For a penalty or treatment to be qualified as “inhuman” or “degrading”, the suffering and humiliation involved must go beyond that inevitable element of suffering and humiliation connected with a legitimate treatment or penalty (see Rıda Boudraa, § 62).
96. The extreme lack of personal space in the detention area weighs heavily as an aspect to be taken into account for the purpose of establishing whether the impugned detention conditions were “degrading” from the point of view of Article 17 of the Constitution (see, for the ECHR’s judgment in the same vein, Yarashonen v. Turkey, § 72). It appears that the applicant, maintaining that the detention conditions at the Kumkapı Centre were inhuman and humiliating, referred to the overcrowding of the Centre, his inability to sleep in the dormitory and instead his staying at the TV room as well as to his psychological problems and impairment of his health on account of his detention conditions.
97. In this respect, the ECHR notes that whereas the provision of four square metres of living space remains the acceptable minimum standard of multi-occupancy accommodation, the circumstances under which an applicant has less than three square metres of floor surface at his or her disposal would lead to a violation of Article 3 (see Hagyó v. Hungary, no. 52624/10, 23 April 2013, § 45; and Yarashonen v. Turkey, § 72). Besides, the ECHR considers it a basic safeguard of prisoners’ well-being that they be allowed at least one hour of exercise in the open air every day (see Ananyev and Others v. Russia, § 150).
98. Quite apart from the necessity of having sufficient personal space, other aspects of physical conditions of detention are relevant for the assessment of compliance with Article 17. Such elements include access to outdoor exercise, natural light or air, availability of ventilation, and compliance with basic sanitary and hygiene requirements (see Yarashonen v. Turkey, § 73). The standards adopted by the CPT with respect to “migrants under detention” (§ 39) point out that in those cases where it is deemed necessary to deprive persons of their liberty for an extended period under aliens legislation, they should be accommodated in centres specifically designed for that purpose, offering material conditions and a regime appropriate to their legal situation and staffed by suitably-qualified personnel; that such centres should provide accommodation which is adequately furnished, clean and in a good state of repair, and which offers sufficient living space for the numbers involved; that care should be taken in the design and layout of the premises to avoid as far as possible any impression of a carceral environment; that as regards regime activities, they should include outdoor exercise, access to a day room and to radio/television and newspapers/magazines, as well as other appropriate means of recreation; and that the longer the period for which persons are detained, the more comprehensive should be the activities which are offered to them. In this scope, the CPT notes that all prisoners without exception (including those undergoing cellular confinement as a punishment) should be offered the possibility to take outdoor exercise daily; and that outdoor exercise facilities should be reasonably spacious and whenever possible offer shelter from inclement weather. It is obvious that this standard which is adopted in respect of prisoners is applicable a fortiori to “the migrants under detention”.
99. The above-cited standards (see §§ 96-98) in principle lay down the minimum standards for the Court to consider in its examinations in this regard. However, these standards must be separately examined in the light of particular circumstances of each concrete case.
Application of Principles to the Present Case
100. In the application file, there is no precise information as to the living conditions of the Kumkapı Centre, notably to the living space per capita, at the time when the applicant was placed there. Besides, neither the applicant nor the Ministry of Internal Affairs and the Ministry submitted to the Court any precise information about the room where the applicant was staying and number of his roommates. The Court having limited information at its hand was to obtain an approximate value for the space per capita at the Kumkapı Centre by dividing the total surface assigned to the inmates by the number of inmates.
101. As stated in the report issued by the Human Rights Institution of Turkey, the total capacity of the Kumkapı Centre, which was reported by the Centre’s administration, was 384 by 28 April 2014 and 350 by 2 May 2014. As indicated by its administration, nearly 30-40 persons leave the Centre everyday but new foreigners approximately in the same number are taken to the Centre. According to the applicant and the officials of the NGOs whose opinions are reflected in the HRIT’s report, number of foreigners accommodated at the Centre are 400-500. Given the information provided by the Centre’s administration and the fact that number of foreigners taken to and discharged from the Centre is almost the same, it may be accepted that the minimum number of inmates at the relevant time was 350-380. The applicant’s allegation to the effect that “approximately 12-13 persons stay in the television room for lack of space in the dormitories” is supported with the information included in the Report: “In a place of 64 square meters, 40 inmates are being held. During the inspection at the wards, it has been observed that the bunk beds are attached to each other, and the wards are overcrowded to an intolerable extent. As there is no empty bunk bed, some of the inmates are sleeping on the ground on blankets”. It was accordingly concluded that there were, at the relevant time, a minimum of approximately 350 inmates at the Kumkapı Centre, which is above the reported capacity of the Centre, namely 300 inmates.
102. As regards the determination of the width of the space assigned to those placed at the Centre, it appears from the report and opinions prepared concerning the Kumkapı Centre that the official capacity of the Centre was accepted, during all the time including the one when the applicant was accommodated, to be 300; and that there was no significant change in the space assigned to the inmates. As also noted by the officials of the Centre whose opinions are also included in the HRIT’s report, it is not even possible to make a substantial change in the space allocated to the inmates as the Centre is located in the city centre with dense buildings. Regard being had to the above-cited information concerning the Centre as a whole (see §§ 42-45), it has been understood that the total surface assigned to the inmates, both male and female, is nearly 1.000 square meters; and that there has been no change in the width of this space in the recent period including that of the applicant’s detention.
103. It accordingly appears that the minimum space per capita at the Centre is approximately 3 square meters.
104. In such removal centres, distress suffered by those due to provision of scarce space may in some circumstances be compensated for by the freedom to spend time away from the dormitory rooms, which may be taken as a factor in assessing the living conditions under Article 17 of the Constitution (see, for the ECHR’s judgment in the same vein, Yarashonen v. Turkey, § 78).
105. When the applicant’s living conditions are examined within this framework, it has been observed that as expressed in the HRIT’s report, in the space separated by iron doors from the administrative units at the Kumkapı Centre, there are a large hall used as a corridor and a dining hall, apart from the wards (units); that there are three sports equipment in the hall; and that due to lack of space in the dormitory rooms, the applicant together with a group of individuals stayed in the TV room. It has been accordingly understood that communal spaces at the Kumkapı Centre are very limited and used for sleeping due to lack of space in the dormitory rooms. In this connection, it appears that the inmates confined to overcrowded dormitory rooms with only beds and lockers have no access to any opportunity which could relieve them.
106. In addition to the above-cited assessments, the inmates should be, in the light of the standards set by the CPT in this respect, provided with the opportunity to have access to at least one-hour outdoor exercise every day, as a measure likely to prevent them from maintaining their daily lives under intolerable conditions.
107. As indicated in the HRIT’s report, the Centre’s manager stated that they were trying to enable those under detention at the Centre to take fresh air at the yard for 45 minutes during weekdays and for 2-3 hours at weekends (see § 43). In this regard, the applicant alleged that although he was allowed to have access to ventilation once a week at the outset, he was not provided with this opportunity in the recent period (§ 83). Some of the inmates whose opinions were included in the report also noted that they were not allowed to receive fresh air; and that moreover, some of them were not even provided with this opportunity for weeks, whereas some of them were provided only twice during 3-4 months.
108. It has been observed that the opportunity of fresh air “tried to be provided” as reported by the officials of the Centre was even far below the CPT’s standards. Besides, as explicitly shown by the acknowledgement of the Centre’s officials that the inmates could not be provided with the ventilation opportunity due to security concerns as the yard was being used as a car park as well as due to winter conditions (see § 43), it has been concluded that the fresh air opportunity actually provided for the individuals accommodated at the Centre was far below the minimum level indicated by the CPT’s standards. Undoubtedly, the conditions under which those individuals who are neither a detainee nor a convict may avail themselves of the fresh air and which are below the CPT’s standards, are not at acceptable level.
109. Regard being had to these findings as a whole, it has been concluded that the overcrowding of the Kumkapı Centre where living space per capita was under 3 square meters as well as the conditions under which the applicant was accommodated at the Kumkapı Centre would per se exceed the level associated with the treatment “incompatible with human dignity”, which is prohibited under Article 17 of the Constitution; that the inadequate communal areas other than the dormitory rooms, which may enable inmates to relieve themselves, and more importantly, very limited opportunity of fresh air afforded to the applicant also aggravated the applicant’s conditions at the Kumkapı Centre; and that the applicant’s being placement in administrative detention under these circumstances for over 8 months constituted a manifest breach of Article 17 of the Constitution.
110. As the findings reached up to so far were sufficient to accept that the treatment suffered by the applicant at the Kumkapı Centre went beyond the humiliation and anguish involved in case of an individual’s arrest or detention pending his deportation in accordance the procedure prescribed by law, the Court did not find it necessary to make a separate examination, under Article 17 of the Constitution, as to the applicant’s allegations concerning poor hygiene conditions and inadequate health-care services and foodstuff as well as lack of communication with the outside world, which fell within the scope of this heading.
111. For these reasons, it has been concluded that under the particular circumstances of the present case, Article 17 of the Constitution was violated as the detention conditions at the Kumkapı Centre amounted to a treatment “incompatible with human dignity”.
3. Alleged Violations of Articles 19 and 40 of the Constitution for Being Placed in Administrative Detention and Lack of an Effective Remedy to Challenge His Detention
112. The applicant maintained that he was taken into custody within the scope of an investigation conducted by the Kızıltepe Chief Public Prosecutor’s Office; that in spite of the prosecutor’s order for his release following his questioning, the Security Directorate did not release him but took him to the Kumkapı Centre where he was placed in administrative detention; and that he was deprived of his liberty for over 8 months in the absence of a judicial decision ordering his detention and he was still under “administrative detention” without any legal basis as of the date of his first individual application. He further asserted that although Law no. 6458 allowed a challenge to his administrative detention before the magistrate judge as well as regular review of this detention by the governor’s office on monthly basis (review of the administrative detention), he could not effectively make use of these remedies in practice; that the magistrate judge’s offices before which he challenged his administrative detention, dismissed his challenges without making a substantive assessment as to the reasons of his administrative detention; that his being deprived of liberty on the basis of abstract allegations and only for security concerns of the administration was considered lawful by the incumbent magistrate judge’s offices; and that there were therefore violations of Article 19 §§ 1, 4, 6, 7, 8 and 9 and Article 40 of the Constitution.
113. In the Ministry’s observations, it was stated with respect to the allegations under this heading that the ECHR considered that detention at the removal centre amounted to deprivation of liberty within the meaning of Article 5 of the Convention; that detention might be considered lawful within the meaning of Article 5 § 1 of the Convention only when it was based on one of the exceptions listed in sub-paragraphs (a) to (f); that where the ‘lawfulness’ of detention was in issue, including the question whether ‘a procedure prescribed by law’ had been followed, the Convention referred essentially to national law and laid down the obligation to conform to the substantive and procedural rules of national law; that in order to avoid arbitrariness in this respect, national law including arrangements as to deprival of liberty must be sufficiently accessible, precise and foreseeable in its application; and that deprival of liberty must be lawful under domestic law and must not contain any element of arbitrariness.
114. It was further indicated that Law no. 6458, which was adopted in order to eliminate the legal gap in this respect, embodied a detailed legal arrangement as to the foreigners’ detention pending their deportation; that the applicant was placed in administrative detention by virtue of this Law; that he challenged twice his administrative detention before the magistrate judge’s office; that as noted before, the nationals of the Syrian Arab Republic seeking for shelter due to the civil war were accorded temporary protection and could not be deported; that pursuant to Article 57 of Law no. 6458, the foreigners against whom a deportation order had been issued could only be placed in administrative detention; and that in the light of the above-cited provisions and basic principles, it would be for the Court, in assessing the alleged violation of the applicant’s right to personal liberty and security, to determine whether he was among those who might be placed in administrative detention by means of determining his legal status.
115. The right to effective legal remedies before any judicial authority, which is safeguarded under Article 19 § 8 of the Constitution for individuals deprived of their liberty, is a lex specialis form of the right to prompt access to competent authority safeguarded in Article 40 of the Constitution in respect of those whose constitutional rights and freedoms have been violated. Therefore, in the present case, the Court did not find it necessary to make a separate examination under Article 40 of the Constitution.
116. The applicant’s allegations that he was placed in administrative detention at the Kumkapı Centre for deportation without a legal basis, that he was not duly informed of the processes carried out in respect of him and of the grounds thereof, that there was no effective remedy to challenge such processes are not manifestly ill-founded. Nor did the Court find any other ground to declare these complaints inadmissible. Therefore, the Court declaring this part of the application admissible proceeded with its examination as to the merits.
i. Alleged Unlawfulness of His Administrative Detention
117. The applicant maintained that he had been placed in administrative detention for deportation, but his administrative detention had no legal basis; that although Law no. 6458 offered the opportunity to file a challenge with the magistrate judge and there was a legal arrangement envisaging that the governor’s office would regularly review the detention on monthly basis (review of the administrative detention), he was not ensured to effectively avail himself of these opportunities in practice.
118. Making a reference to the ECHR’s judgments rendered on various dates, the Ministry in its observations indicated that such kind of applications were dealt with under Article 5 § 1 of the Convention. The applicant reiterated his former counterstatements against the Ministry’s observations without presenting any new submissions.
119. Article 19 §§ 1, 2, 4, 8 and 9 of the Constitution reads as follows:
“Everyone has the right to personal liberty and security.
No one shall be deprived of his/her liberty except in the following cases where procedure and conditions are prescribed by law:
Execution of sentences restricting liberty and the implementation of security measures decided by courts; arrest or detention of an individual in line with a court ruling or an obligation upon him designated by law; execution of an order for the purpose of the educational supervision of a minor, or for bringing him/her before the competent authority; execution of measures taken in conformity with the relevant provisions of law for the treatment, education or rehabilitation of a person of unsound mind, an alcoholic, drug addict, vagrant, or a person spreading contagious diseases to be carried out in institutions when such persons constitute a danger to the public; arrest or detention of a person who enters or attempts to enter illegally into the country or for whom a deportation or extradition order has been issued.
Individuals arrested or detained shall be promptly notified, in all cases in writing, or orally when the former is not possible, of the grounds for their arrest or detention and the charges against them; in cases of offences committed collectively this notification shall be made, at the latest, before the individual is brought before a judge.
Persons whose liberties are restricted for any reason are entitled to apply to the competent judicial authority for speedy conclusion of proceedings regarding their situation and for their immediate release if the restriction imposed upon them is not lawful.
(As amended on October 3, 2001 by Article 4 of Law no. 4709) Damage suffered by persons subjected to treatment other than these provisions shall be compensated by the State in accordance with the general principles of the compensation law.”
120. Article 5 §§ 1 (f), 2, 4 and 5 of the Convention is as follows:
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”
121. In Article 19 § 1 of the Constitution, it is set out in principle that everyone has the right to personal liberty and security. Article 19 §§ 2 and 3 provides that individuals may be detained under the circumstances enumerated therein with due process of law. Therefore, the right to liberty and security may be restricted only in cases where one of the circumstances specified in this article exists (see Ramazan Aras, 2 July 2013, § 43).
122. In paragraph 8 of the same article, which sets forth “Persons whose liberties are restricted for any reason are entitled to apply to the competent judicial authority for speedy conclusion of proceedings regarding their situation and for their immediate release if the restriction imposed upon them is not lawful”, the right to apply to a competent judicial authority against the deprivation of liberty is enshrined. On the other hand, in Article 5 §§ 1 and 4 of the Convention, it is set forth that everyone has the right to liberty and security, and it is also enshrined that in cases where an individual is deprived of liberty, he is entitled to apply to a tribunal which would review the lawfulness of such deprivation and, if unlawful, be capable of ordering his release.
123. The authority to place in administrative detention is an exceptional power introduced by Article 19 of the Constitution and Article 5 of the Convention. It is accordingly possible to arrest or detain a foreigner, pending his deportation or extradition, in compliance with the procedure terms and conditions of which are indicated by law (see Rıza Bodraa, § 73). In such cases, administrative detention may be ordered merely for the purpose of conducting deportation or extradition processes, without the need for existence of any ground such as prevention of his committing an offence or his fleeing. However, unless deportation or extradition processes are conducted “with due diligence” pursuant to Article 19 of the Constitution, the person concerned can no longer be free and the deprivation of his liberty can no longer be said to be legitimate (for the ECHR’s judgments in the similar vein, see A. and Others/the United Kingdom, no. 3455/05, 19 February 2009, § 164; and Abdolkhani and Karimnia v. Turkey, § 129).
124. As an exceptional practice leading to deprivation of liberty, administrative detention must be lawful and must not amount to an arbitrary treatment. This measure must be subject to review to a reasonable extent required by a democratic state of law; its conditions must comply with generally recognized standards and must not amount to a humiliating, degrading and inhuman treatment; and those placed in administrative detention must be provided with basic procedural rights and safeguards. The said provisions of the Constitution and Convention intend to secure a legal position with more safeguards in respect of personal liberty by seeking the condition that terms and conditions of certain circumstances whereby the individual is deprived of his liberty must be prescribed by law (see Rıza Boudra, § 74 and, for the ECHR’s judgments in the same vein, Abdolkhani and Karimnia v. Turkey, § 129; and A. and Others v. the United Kingdom, § 164).
125. A legal arrangement to be made with a view to satisfying the requirements of Article 19 of the Constitution must explicitly set forth the procedural safeguards such as conditions of detention pending deportation, its term, extension of term, its notification to the person concerned, available remedies against the administrative detention, access to lawyer and providing assistance of an interpreter for the person placed in administrative detention. Otherwise, it cannot be said that individuals are sufficiently protected against arbitrary deprivation of liberty and that such deprivation is lawful (see, for the ECHR’s judgments in the same vein, Abdolkhani and Karimnia v. Turkey, § 135).
126. As indicated in the Ministry’s observations, Law no. 6458 enacted on this issue sets forth that out of the foreigners in respect whom a deportation order has been issued, those “who bear the risk of absconding or disappearing; breached the rules of entry into and exit from to Turkey; have used false or fabricated documents; have not left Turkey after the expiry of the period granted to them to leave, without an acceptable excuse; or, pose a threat to public order, public security or public health” shall be subject to administrative detention order issued by the governor’s office; that the term of administrative detention shall not exceed six months; that the governor’s office shall regularly review whether the continued administrative detention is necessary on monthly basis, and when required, it shall not be necessary to wait for the expiry of 30 days for review of administrative detention; for those foreigners where administrative detention is no longer considered necessary, the administrative detention shall immediately be ended; that these foreigners may be required to comply with administrative obligations such as to reside at a given address and report to the authorities in form and periods to be specified; that the administrative detention decision, the extension of the administrative detention period and the results of the monthly regular reviews together with its consequences shall be notified to the foreigner or, to his legal representative or lawyer; that the person placed in administrative detention or his legal representative or lawyer may appeal against the detention decision before the magistrate judge that shall adjudicate the appeal within five days; and that a further appeal may be lodged with the magistrate judge.
127. It is evident that the legal arrangement prescribed in this Law explicitly affords a procedure which will be complied with in conducting the deportation process and is capable of precluding any arbitrariness. In the present case, it must be accordingly assessed whether this procedure was conducted with due diligence.
128. As inferred from the application form and annexes thereto, on 25 April 2014 the applicant was arrested and taken into custody by the police in Zeytinburnu district of İstanbul. On the very same day at 00:00 a.m. his release was ordered, by the Kızıltepe Chief Public Prosecutor’s Office, following his questioning, and a report was issued in this regard. However, as also revealed from another report, the applicant was taken to the Kumkapı Centre by the Police Department of the Deportation Procedures and Removal Centre on 26 April 2014 at 02:15 a.m. for “the missing documents to be completed on the next workday…”. On 28 April 2014 upon the request of the Security Directorate and order of the Governor’s Office, a deportation order as well as an administrative detention order pursuant to Article 57 § 3 of the same Law were issued in respect of the applicant for “posing a threat to public order or public safety or public health” pursuant to Article 54 of Law no. 6458. He challenged the administrative detention order before the magistrate judge’s office on 19 June 2014 as well as the deportation order before the administrative court on 27 June 2014.
129. Given these procedures carried out until that day, it has been observed that the reason underlying the applicant’s arrest and custody was the investigation conducted by the Kızıltepe Chief Public Prosecutor’s Office; that in spite of the decision taken by the Kızıltepe Chief Public Prosecutor’s Office on the same day for his release, he was taken to the Kumkapı Centre; and that he was subsequently placed in administrative detention pending his deportation which was ordered by the İstanbul Governor’s Office two days later, namely on 28 April 2014. It accordingly appears that his placement in the Kumkapı Centre between 25 April 2014 00:00 a.m. when his release was ordered and 28 April 2014 –at an unknown hour- when his placement in administrative detention was ordered was based on neither a judicial nor an administrative decision.
130. It is revealed from the administrative detention order issued against the applicant, in conjunction with the deportation order, on 28 April 2014 that the applicant was considered to “pose a threat to public order or public safety or public health”. As noted above, application of a measure such as issuing an administrative detention order against the person concerned pending his deportation is not necessarily conditioned upon any ground such as prevention of his commission of an offence or his absconding (see § 123). Therefore, unlike the applicant’s allegation, the Kızıltepe Chief Public Prosecutor’s decision ordering his release or the decision of non-prosecution issued in respect of him at the end of the investigation does not automatically render his deprivation of liberty unlawful. In this respect, as in the present case, the administration -relying on the information at its hand as well as the judicial investigations conducted against such persons- may decide to place those concerned in administrative detention for grounds such as posing a risk to public order, public safety or health or involving the risk of absconding (which may be considered less severe than the grounds required for detention during a criminal investigation) provided that it is for conducting the deportation process. It cannot be nevertheless said that a lawfully issued administrative detention order provides the administration with the opportunity to continue applying this measure for an indefinite period of time. Also during the period when the administrative detention order is in force, it is necessary to afford procedural guarantees which are explicitly prescribed by a legal arrangement and capable of reviewing whether the administrative detention measure is applied in accordance with the requirement of “due diligence”, thereby precluding any risk of arbitrariness.
131. Regard being had to the present case in terms of the procedural guarantees prescribed in Article 57 of Law no. 6458 for the placement in administrative detention, it has been observed that the applicant was not informed of the ground requiring his placement at the Kumkapı Centre; that the Governor’s Office failed to review on monthly basis the necessity to continue the administrative detention; that it is uncertain whether such an assessment was made; if conducted, neither the applicant nor his lawyer was notified in respect thereof; that the total administrative detention served by the applicant, namely 8 months and 10 days, exceeded the six-month period, the legal time-limit prescribed for administrative detention; and that nor was the applicant notified of the grounds justifying the extension of this six-month time-limit.
132. As to the appeal remedy before the magistrate judge that is envisaged for the administrative detention orders, it has been observed that the applicant asserted through his challenges before the magistrate judge that in spite of the decision ordering his release, which was issued by the Kızıltepe Chief Public Prosecutor’s Office, he was placed in administrative detention at the Kumkapı Centre on 25 April 2014 without being notified of the reason thereof; that the Kızıltepe Chief Public Prosecutor’s Office rendered a decision of non-prosecution in respect of him; that he had applied for an international protection and that he was under temporary protection; that therefore it was not possible for him to be deported and placed in administrative detention; that he was not provided with the procedural guarantees set forth in Article 57 of Law no. 6458; that he suffered humiliation and physical and mental distress due to his detention conditions at the Kumkapı Centre; and that as the maximum period of six months had been exceeded in his case, he requested that the administrative detention order be lifted and his immediate release be ordered.
133. It appears that in rendering their decisions with final effects about the applicant’s challenges, the magistrate judges took into consideration the information about the applicant which was provided by the Foreigners’ Department and took the relevant steps in respect of him for “his membership of a terrorist organization”; that on 28 April 2014 his administrative detention was ordered pursuant to Article 54 (d) of Law no. 6458; and that as this administrative detention process was contrary neither to procedure nor to law, they rejected the applicant’s challenges. It has been observed that these decisions did not contain any assessment as to the applicant’s allegations as to his application for international protection and his status of temporary protection, which are of importance for the applicability of deportation process underlying the administrative detention order and which are decisive for the continuation of his administrative detention as well as his allegations as to the alleged incompatibility with the procedural guarantees afforded by Law no. 6458 to those whose administrative detention has been ordered.
134. Accordingly, it is evident that the procedure whereby a foreigner’s detention is ordered pending his deportation, his continued detention is ordered and a time-limit is prescribed for the length of such detention is explicitly set forth in Law no. 6458; and that the applicant was placed in administrative detention, for the purpose of conducting the deportation process, in compliance with the ground and procedure specified in this legal arrangement, except for the fact that the administrative detention order was issued with a delay of two days. However, it has been concluded that neither the relevant authority issuing the administrative detention order and envisaged to review the detention order on monthly basis nor the magistrate judges examining the applicant’s challenges took into consideration the changes in his legal status, which were decisive for the application of the deportation order and which could ensure his release at an earlier date and allow for the implementation of other measures prescribed in Article 54 of Law no. 6458 (his application for international protection as well as his being granted temporary protection). Nor did they consider whether the ground for placing him in administrative detention was sufficient to order the continuation of his administrative detention. It has been accordingly considered that the administrative detention process pending the applicant’s deportation cannot be said to have been conducted with “due diligence”. In other words, in the present case, it cannot be concluded that the applicant was afforded necessary safeguards against the arbitrariness of deprivation of liberty and that accordingly, his administrative detention was “lawful”.
135. Consequently, the Court found a violation of Article 19 § 2 of the Constitution in so far as it concerned the applicant’s complaints under this heading.
ii. Alleged Failure to Be Duly Notified of the Reason for Administrative Detention
136. The applicant alleged that he had not been notified of the reason for detention when he was taken to the Kumkapı Centre. The Ministry’s observations do not include any explanation in this respect.
137. In Article 19 § 4 of the Constitution, it is prescribed that individuals arrested or detained shall be promptly notified, in all cases in writing, or orally when the former is not possible, of the grounds for their arrest or detention and the charges against them.
138. The requirement that legal and factual facts forming a basis for the arrest and detention of an individual must be explained in a simple and non-technical language which could be easily understood would ensure the person whose restriction has been restricted to have recourse to a competent judicial authority with a view to ensuring that a decision be rendered in respect of him within a short time and, if the restriction is unlawful, he be immediately released under Article 19 § 8 of the Constitution. Content of the information notified as well as whether the notification was made promptly must be assessed according to particular circumstances of every concrete case (for the ECHR’s judgment in the same vein, see Abdolkhani and Karimnia v. Turkey, § 136).
139. In this respect, it is set forth in Article 57 of Law no. 6458 that the administrative detention order, its prolongation as well as consequences of the monthly reviews by the Governor’s Office, along with the grounds thereof, be notified to the foreigner or his representative or his lawyer; and that the foreigner placed in administrative detention or his legal representative or his lawyer may raise a challenge to these processes (see § 76).
140. In the impugned case, it appears from the written record of the interview between the applicant and his lawyer, which was held on 25 June 2014 “He was taken under custody while walking along the road in Zeytinburnu. He was questioned by the police and then taken to the Foreigners’ Department. He had been detained in Kumkapı for two months but did not know the reason thereof. The police arresting him told that they would release him following his questioning which would approximately last for two hours. However, I have not been released yet despite two months having elapsed. There were 7-8 police officers and they made me sign documents that were unknown to me”.
141. In his petition of 27 June 2014, which was submitted to the administrative court, he claimed that he became aware of the deportation order issued against him when his lawyer requested, on 23 June 2014, a copy of the document included in his file; and that the deportation order had been notified neither to him nor to his lawyer.
142. There is no such information in the report included in the applicant’s file and concerning his release ordered by the Kızıltepe Chief Public Prosecutor’s Office following his questioning and in the report concerning his being taken to the Police Department of the Deportation Procedures and Removal Centre on 26 April 2014 at 02:15 a.m.. In consideration of the fact that the decision ordering his deportation and his placement in administrative detention is dated 28 April 2014, it has been observed that it was not also possible for the applicant to be informed, in the course of his transfer to the Kumkapı Centre, of legal and factual reasons underlying his detention.
143. The applicant further alleged that although his lawyer’s identity and residence was available in his file kept by the Governor’s Office, he was not also notified of the reviews monthly made as to the necessity of his continued administrative detention; that therefore, he could not learn the reason of his continued detention; and that nor was he notified of the reason requiring his continued detention in spite of the expiry of the maximum period of 6 months.
144. As inferred from the above-given information, the applicant was firstly placed in detention at the Kumkapı Centre at 02:15 a.m. on 26 April 2014; that the reports and documents annexed to the application form do not contain any information indicating that the applicant had been notified thereof; that neither the Ministry nor the Ministry of Internal Affairs submitted any information on this matter; and that accordingly, there is no information indicating that he was informed of the reasons underlying his detention at the Kumkapı Centre.
145. It has been concluded that in the present case, the applicant was not notified in time of the decisions ordering his administrative detention and its continuation as well as of the information concerning himself; and that therefore, he was precluded from using the opportunities to request speedy conclusion of the proceedings regarding him as well as to request his release if his detention was unlawful.
146. For these reasons, the Court found a violation of Article 19 § 4 of the Constitution.
iii. Alleged Lack of an Effective Remedy to Challenge the Administrative Detention
147. The applicant maintained that although Law no. 6458 allowed a challenge to his administrative detention before the magistrate judge as well as regular review of this detention by the governor’s office on monthly basis (review of the administrative detention), he could not effectively make use of these remedies in practice; that the magistrate judges before which he challenged his administrative detention, dismissed them without making a substantive assessment as to the reasons of his administrative detention; that his being deprived of liberty on the basis of abstract allegations and only for security concerns of the administration was considered lawful by the incumbent magistrate judges; and that there were therefore violations of Articles 19 § 8 and 40 of the Constitution.
148. Article 19 § 8 of the Constitution reads as follows:
“Persons whose liberties are restricted for any reason are entitled to apply to the competent judicial authority for speedy conclusion of proceedings regarding their situation and for their immediate release if the restriction imposed upon them is not lawful.”
149. Article 5 § 4 of the Convention reads as follows:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
150. Article 19 § 8 of the Constitution and Article 5 § 4 of the Convention entitle a person whose freedom is restricted for whatsoever reason to apply to a court which can speedily decide on the lawfulness of his detention or administrative detention and order his release if his detention is unlawful. These provisions essentially constitute a guarantee for review of the requests for release or of the decisions ordering extension of detention through the cases brought before tribunals upon a challenge as to the unlawfulness of detention (see Firas Aslan and Hebat Aslan, no. 2012/1158, 21 November 2013, § 30).
151. Given the particular circumstances of the present case, Article 19 § 8 of the Constitution entitles a person who has been deprived of his liberty by way of arrest or detention to apply to a competent judicial authority as to the procedural and substantive conditions underlying the lawfulness of the deprivation of his liberty. The examination to be made by the competent judicial authority concerning the complaints raised by the person deprived of his liberty must be of judicial nature as well as afford safeguards appropriate for the challenges raised by this person (see Firas Aslan and Hebat Aslan, § 64).
152. Such judicial review must ensure release of the person concerned when necessary so that such a legal remedy would offer sufficient prospects of success not only in theory but also in practice. Otherwise, such remedy cannot be said to be accessible and effective (see, for the ECHR’s judgment in the same vein, Abdolkhami and Karimnia v. Turkey, § 139).
153. As explained in detail in the section where compliance of the applicant’s administrative custody with Article 19 § 2 of the Constitution is discussed, it has been concluded that Law no. 6458 provides for a procedure which would be followed and capable of preventing arbitrariness likely to occur during the enforcement of deportation orders; that however, this process was not operated in a way that would ensure conduction of administrative detention process pending deportation “with due diligence”; and that the available remedies in the present case were not capable of affording an opportunity for effective examination of the applicant’s allegations as to the developments likely to ensure his release.
154. It has been further decided that the applicant was not duly notified of the reasons for his deprivation of liberty (see §§ 136-146); and that this fact in itself meant that the applicant’s right to appeal against his detention was deprived of all effective substance (see for the ECHR’s judgment in the same vein Abdolkhani and Karimnia v. Turkey, § 141). Therefore, the applicant was also deprived of the opportunity to request speedy conclusion of his case as well as his immediate release if his detention was unlawful.
155. As explained in the last two paragraphs above, it has been observed that available remedies prescribed in Law no. 6458 and capable of ensuring his release following a re-assessment to be made on the basis of the changes in applicant’s legal status were not effectively operated in the present case.
156. Consequently, the Court has found a violation of the applicant’s right to apply to an effective judicial authority, which is safeguarded by Article 19 § 8 of the Constitution, in relation to the substantive and procedural conditions underlying the lawfulness of his deprivation of liberty.
4. Application of Article 50 of Code no. 6216
157. Article 50 § and 2 of the Code no. 6216 on the Establishment and Rules of Procedures of the Constitutional Court reads as follows:
“(2) If the determined violation arises out of a court decision, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed. In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favour of the applicant or the remedy of filing a case before the general courts may be shown. The court, which is responsible for holding the retrial, shall deliver a decision over the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its decision of violation.”
158. The applicant claimed 30,000 Turkish liras (TRY) as non-pecuniary damage due to distress and aguish he suffered on account of the infringement of his fundamental rights and freedoms, TRY 7,995.93 as pecuniary damage for the loss of income during the period he was placed in administrative detention and for his necessary expenses, as well as TRY 2,318 for the court expenses.
159. In the present case, the Court indicated an interim measure for the applicant and thereby halted his deportation. The Court also found violations of Article 17 § 3, 40 and 19 §§ 2, 4 and 8 of the Constitution due to the applicant’s placement in administrative detention and conditions of his administrative detention. Given the particular circumstances of the present case, the Court awarded, as non-pecuniary compensation, a net amount of TRY 10,000 to the applicant for the non-pecuniary damage which could not be compensated by merely finding a violation.
160. As the Court found no causal link between the applicant’s claim for the pecuniary damage he allegedly sustained and the damage, his claim must be rejected.
161. The total court expense of TRY 1,706.10 including the court fee of TRY 206.10 and the counsel fee of TRY 1.500, which is calculated over the documents in the case file, must be reimbursed to the applicant, and a copy of the judgment would be sent to the İstanbul 1st, 2nd and 4th Magistrate Judge’s Offices as well as to the 1st Chamber of the İstanbul Administrative Court.
V. JUDGMENT
For these reasons, the Constitutional Court UNANIMOUSLY held on 11 November 2015 that
A. The applicant’s request for concealing his identity in public documents be ACCEPTED;
B. 1. The alleged violations of the right to life and the prohibition of torture and mal-treatment due to deportation order be DECLARED INADMISSIBLE for lack of competence ratione personae;
2. The alleged violations of Articles 17 and 40 of the Constitution due to the conditions of his administrative detention pending deportation as well as violation of Article 19 of the Constitution for being placed unlawfully in administrative detention and lack of an effective remedy to challenge his detention be DECLARED ADMISSIBLE;
C. 1. Article 17 § 3 of the Constitution was VIOLATED in so far as it concerned the allegation that the detention conditions at the Kumkapı Centre attained the level of “treatment incompatible with human dignity”;
2. Article 40 of the Constitution was VIOLATED in so far as it concerned the alleged lack of an effective remedy to raise his allegations that his detention conditions had been in breach of Article 17 of the Constitution;
3. Article 19 § 2 of the Constitution was VIOLATED in so far as it concerned the allegation that his placement in administrative detention had no “legal” basis;
4. Article 19 § 4 of the Constitution was VIOLATED in so far as it concerned the allegation that the reason underlying the administrative detention had not been duly notified;
5. Article 19 § 8 of the Constitution was VIOLATED in so far as it concerned the alleged lack of an effective remedy whereby he could challenge the administrative detention;
D. Pursuant to Article 50 § 2 of the Code no. 6216, a net amount of TRY 10,000 be PAID to the applicant as non-pecuniary compensation, and his other claims for compensation be DISMISSED;
E. The total court expense of TRY 1,706.10 including the court fee of TRY 206.10 and the counsel fee of TRY 1.500, be REIMBURSED TO THE APPLICANT;
F. The payment be made within four months as from the date when the applicant applies to the Ministry of Finance following the notification of the judgment. In case of any default in payment, legal INTEREST ACCRUE for the period elapsing from the expiry of four-month time limit to the payment date.
G. A copy of the judgment be SENT to the İstanbul 1st, 2nd and 4th Magistrate Judge’s Offices as well as to the 1st Chamber of the İstanbul Administrative Court.
