REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 PLENARY

DECISION

B.T.

(Application no. 2014/15769)

30 November 2017

THE FACTS

[9-38] The applicant, an Uzbek national who stated that he had left his country for being subject to oppression on account of his religious and political opinions, was arrested at the Sabiha Gökçen Airport on 26 June 2014 while attempting to go abroad with a false passport. He was imposed an administrative fine for misrepresentation of his identity and his illegal entry into Turkey. A criminal investigation was also initiated against him for forgery of an official document.

He was then placed in the detention room of the Sabiha Gökçen Airport for 6 days until 28 June 2014. It is evident from the “Interview Report” issued by the law enforcement officers on 23 June 2014 following their interview with the public prosecutor by phone that there was no instruction for taking him in custody for the offence of forgery. The applicant was then transferred to the Kumkapı Foreigners’ Removal Centre for being placed under administrative detention.

The applicant’s appeal against the administrative detention order was dismissed by the İstanbul 7th Magistrate Judge by its decision of 17 July 2014 with a final effect. This decision was notified to the applicant’s lawyer on 4 August 2014.

Pending his detention at the Kumkapı Centre, the applicant sought international protection from the İstanbul Governor’s Office on 22 July 2014. By the letter of the Directorate General of Immigration Authority, he was released from the Kumkapı Centre on 21 August 2014.

He was placed under detention for 60 days, in the detention room of the Sabiha Gökçen Airport for 6 days between 23 June and 28 June 2014 and subsequently in the Kumkapı Foreigners’ Removal Centre for 54 days between 28 June and 21 August 2014.

V.   EXAMINATION AND GROUNDS

39. The Constitutional Court, at its session of 30 November 2017, examined the application and decided as follows:

A.   Alleged Violation of the Prohibition of Treatment Incompatible with Human Dignity   

40. The applicant maintained that he had to leave Uzbekistan of which he was a citizen for having being subject to oppression and persecution due to his religious and political thoughts and arrived in Turkey where he was arrested at the airport while leaving the country; that he was then placed in a detention room for 6 days with no daylight and outdoor activities; and that after being released from detention, he was placed in the Kumkapı Foreigners’ Removal Centre (“Kumkapı Centre”) for 54 days. He further indicated that cells of the Kumkapı Centre was unfit for accommodation –overcrowded (occasionally up to 500 inmates) and a smoker place with bad food, dirty toilet and bathroom facilities and limited living space and recreation facilities–; that he could enjoy fresh air for only ten minutes once a week; that he had very limited access to health-care services and he was to stay in the same place with persons with infectious diseases; that his psychological balance was disturbed for being placed there; and that he had no effective remedy whereby he could challenge the conditions of his detention. He accordingly alleged that the prohibition of treatment incompatible with human dignity, the rights to a fair trial as well as to an effective remedy had been violated.  

41. The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). As the actions concerning the foreigners’ entry into the country, their residence and deportation from the country are not related to “civil rights and obligations” or to an adjudication on the merits of “a criminal charge”, no separate examination as to the right to a fair trial was carried out.

42. The Court, in its previous judgments, examined the detention conditions of the foreigners who were placed in administrative detention within the ambit of the prohibition of treatment incompatible with human dignity (see Rıda Boudraa, no. 2013/9673, 21 January 2015; K.A. [Plenary], no. 2014/13044, 11 November 2015; F.A. and M.A., no. 2013/655, 20 January 2016; A.V. and Others, no. 2013/1649, 20 January 2016; F.K. and Others, no. 2013/8735, 17 February 2016; T.T. no. 2013/8810, 18 February 2016; A.S., no. 2014/2841, 9 June 2016; and I.S. and Others; no. 2014/15824, 22 September 2016).

43. Article 148 § 3 in fine of the Constitution reads as follows:

“In order to make an application, ordinary legal remedies must be exhausted”.

44.  Article 45 § 2, titled “Right to individual application”, of the Code on Establishment and Rules of Procedures of the Constitutional Court, no. 6216 and dated 30 March 2011, provides for:

“All of the administrative and judicial remedies that have been prescribed in the code regarding the transaction, the act or the negligence that is alleged to have caused the violation must have been exhausted before making an individual application”.  

45. Respect for fundamental rights and freedoms is a constitutional duty incumbent on all organs of the state, and in case of any breach of this duty, the alleged violation must be primarily brought before the competent administrative authorities and instant courts. As required by the subsidiarity nature of the individual application mechanism, the ordinary legal remedies must be exhausted in order to lodge an application with the Constitutional Court. Pursuant to this principle, the applicant is to duly inform the relevant administrative and judicial authorities of his complaint primarily and on time and to present, in a timely manner, all relevant information and evidence at his hand to the authorities as well as to show due diligence to pursue his case and application. Only when it is not possible to redress the alleged violations through this ordinary review mechanism, an individual application may be lodged (see İsmail Buğra İşlek, no. 2013/1177, 26 March 2013, § 17; and Bayram Gök, no. 2012/946, 26 March 2013, § 18).

46. For the requirement of the exhaustion of domestic remedies, the legal system must primarily afford an administrative or judicial remedy to which an individual who alleged any of rights has been violated may have recourse. Besides, this legal remedy must be effective and capable of providing redress in respect of the complaints and offering reasonable prospects of success as well as must be available not only in theory but also in practice (see Fatma Yıldırım, no. 2014/6577, 16 February 2017, § 39). However, the doubt as to the fact that any remedy which is capable of offering a reasonable prospect of success in theory would not accomplish in practice does not justify the failure to exhaust that remedy (see Sait Orçan, no. 2016/29085, 19 July 2017, § 36). Furthermore, the failure to actually resort to or use any legal remedy which has been introduced through a legal arrangement and which arouses no hesitation as to its existence given the objective meaning of the law will not suffice to reach a conclusion that this remedy is not effective or does not exist.

47. The question as to whether the applicant can be considered to have done everything which could be reasonably expected of him must be examined in the light of the particular circumstances of each case (see S.S.A., no. 2013/2355, 7 November 2013, §§ 27 and 28). However, in cases where it appears that exhaustion of available remedies would not serve the purpose or is not effective, an application lodged without these remedies being exhausted may be examined (see Şehap Korkmaz, no. 2013/8975, 23 July 2014, § 33).

48. Given the absolute nature of the prohibition of 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. 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. Besides, in addition to a compensatory legal remedy, the State must also establish an effective mechanism which would promptly halt such treatment (see K.A., §§ 72 and 73). 

49. However, if the person concerned is no longer placed in the place giving rise to the alleged violation, “his placement” will be discontinued. Therefore, the violation resulting from such placement can be said to no longer exist. Besides, the person leaving the removal centre and thereby gaining his freedom would have no legal interest in seeking proactive improvement of the placement conditions. In this sense, for foreigners released from the removal centre, it is unreasonable to resort to legal remedies capable of preventing the violation or ensuring proactive improvement of the placement conditions, in which case there must be mechanisms capable of redressing the damage sustained. It may be accordingly concluded that with respect to the complaints raised by those placed in the removal centres about their detention conditions, the effective legal remedy is the compensatory remedy.

50. In the present case, the applicant was released from the Kumkapı Centre on 21 August 2014 upon the letter of the Directorate General of Immigration Authority. Following his release, the applicant directly lodged an individual application on 22 September 2014. It is therefore necessary to examine whether a mechanism offering a redress for pecuniary and non-pecuniary damage sustained by the applicant on account of his detention conditions until his release had been available in the Turkish legal system prior to the introduction of the individual application mechanism.

51. In its K.A. judgment (see §§ 80 and 81), the Court concluded that there was no effective administrative and judicial remedy capable of offering redress for the damage sustained due to placement in unfavourable conditions. In reaching this conclusion, the Court took into consideration the absence of any judicial or administrative decision which indicates that the applicant was awarded compensation for his suffering on account of the unfavourable conditions of his detention.  

52. However, the Court has currently reached the conclusion that this case-law must be reviewed. One of the factors leading the Court to adopt such consideration is the fact that pursuant to Article 125 of the Constitution and Article 2 of Law no. 2577 on Administrative Jurisdiction Procedure, absence of a decision indicating an award of compensation must not be per se decisive in concluding that there is no effective remedy whereby the damage sustained on account of unfavourable detention conditions could be redressed. As a matter of fact, it may be erroneous to consider that there is no effective compensatory remedy without discussing whether such a remedy exists in theory but by merely relying on the absence of any court decision demonstrating that no such action has been so far brought and no compensation has been awarded. In this respect, in order to conclude that there is no available remedy, the national legal system must be primarily examined so that it would be ascertained whether a compensatory remedy whereby a foreigner may resort is available in theory. In addition, the failure to operate a remedy -which appears to exist in theory- in practice merely due to lack of information must not be construed to the effect that it is ineffective. In this case, what is indeed important is the existence of any decision indicating that no compensation could be awarded rather than a decision indicating an award of compensation. The conclusion that a remedy which is in theory capable of offering redress is nevertheless ineffective in practice may be reached only when the courts find it incapable of offering redress for the damage sustained on account of the detention conditions.

53. Administrative detention is based on a decision of administrative nature. Besides, the detention room where foreigners are placed under administrative detention and the Foreigners’ Removal Centres are run, inspected and operated by the Ministry of Internal Affairs as a public service. Therefore, it is incumbent on this Ministry to ensure compliance of the conditions of these detention rooms and centres with the standards specified in the national and international law.

54. Article 2 of Law no. 2577 provides for that those whose individual rights have been infringed directly on account of an administrative act or action are entitled to bring an action for compensation before administrative tribunals. Accordingly, an action for compensation may be brought in administrative jurisdiction in case of any damage resulting from the administration’s acts and actions. As the said provision does not make any distinction as to the kinds of administrative acts or actions, it is possible to seek compensation, through an action for compensation to be brought in administrative jurisdiction, for damage resulting from any kind of acts or actions in the form of an administrative function. It accordingly appears that Article 2 of Law no. 2577 forms a sufficient legal ground for litigating, before administrative tribunals, any kind of damage resulting from an administrative act. It has been therefore concluded that it is possible to bring an action for compensation, before administrative tribunals pursuant to Article 2 of Law no. 2577, due to the damages resulting from the alleged unlawfulness of the detention conditions at detention rooms and foreigners’ removal centres.

55. In this regard, there is no doubt that the administrative court is, through an action for compensation to be brought in administrative jurisdiction, entitled to examine whether the detention conditions are compatible with the relevant national and international law as well as to award compensation if detention conditions are found to be unlawful -provided that this has caused damage and there is a casual link between the damage and the detention conditions-.  

56. In addition, the administrative judicial authorities are in a better position than the Constitutional Court to make an assessment as to physical conditions of detention rooms and removal centres where foreigners are detained. In assessing the compatibility of physical conditions of detention rooms and foreigners’ removal centres with national and international standards, the Constitutional Court makes an assessment over the case file whereas the inferior courts have several opportunities such as conducting an on-site examination, obtaining an expert report and etc.. It is therefore undisputed that making an assessment as to the physical conditions of foreigners’ removal centres primarily by administrative judicial authorities is not only an approach compatible with the subsidiarity principle but also would be advantageous to the applicant.

57. In the light of Article 2 of Law no. 2577, it has been concluded that it would be incompatible with the “subsidiarity nature” of the individual application mechanism to examine this application lodged without the exhaustion of the remedy of “action for compensation” which appears to be accessible as well as be capable of having a prospect of success and offering sufficient redress for pecuniary and non-pecuniary damage arising from the incompatible conditions of detention.  

58. For these reasons, the Court declared this part of the application inadmissible for non-exhaustion of available remedies without making any further examination as to the other admissibility criteria.

59. However, the Court has found it necessary to clarify an issue as to the duration of administrative actions likely to be brought, following this judgment, in case of impugned incidents like in the present application as well as those which are of the same nature with the present one and pending before the Court. It must be primarily stressed that it is in the discretion of the administrative tribunals to assess the conditions as to the duration of the proceedings and to determine whether the administrative actions have been brought in due time. It is therefore undisputed that the inferior courts are vested also with the power to assess whether the administrative actions -which are likely to be brought, after this judgment becomes public, with respect to incidents which are directly brought before the Constitutional Court in line with the case-law specified in the case of K.A. where it was concluded that there had been no effective administrative and judicial remedy capable of offering redress for the damage sustained on account of unfavourable conditions of detention- have been filed in due time. However, in respect of the foreigners who have had recourse to administrative jurisdiction following “the inadmissibility decisions rendered due to non-exhaustion of available remedies” pursuant to the change of the case-law concerning the present application and those which are of the same nature and pending before the Court, terms of litigation must be considered in a way that would not lead to a violation of their right to access to court.

60. As the alleged violation of the prohibition of treatment incompatible with human dignity was found inadmissible for non-exhaustion of available remedies, the alleged violation of the right to an effective remedy set forth in Article 40 of the Constitution, in conjunction with the said prohibition, was not examined by the Court at this stage.

Mr. Serruh KALELİ did not agree with this conclusion.

B.    Complaints as to the Right to Personal Liberty and Security

1.    Alleged Violation of the Right to Personal Liberty and Security due to Non-compliance with the Principle of Being Brought Promptly before a Judge

61. The applicant maintained that the police officers in charge had consulted with the public prosecutor two hours after he had been taken into custody for allegedly using a false Greek passport at the Sabiha Gökçen Airport; that he had been taken into custody despite no instruction had been issued by the prosecutor; and that he had not been brought before a judge within forty-eight hours as specified in Article 19 § 5 of the Constitution.

62. The safeguards of being brought promptly before a judge, being entitled to trial within a reasonable time or of being released pending trial, which are enshrined in Article 5 § 3 of the Convention, have been introduced for individuals against whom there is reasonable suspicion of having committed an offence or there are reasonable grounds leading to the necessity to prevent their committing an offence or fleeing after having done so. In other words, these safeguards are applicable to individuals against whom a criminal investigation has been initiated or who are still being investigated. 

63. Pursuant to Articles 47 § 3 and 48 §§ 1 and 2 of the Code no. 6216 on Establishment and Rules of Procedures of the Constitutional Court (Code no. 6216) and relevant paragraphs of Article 59 of the Internal Regulations of the Constitutional Court, the applicants are obliged to explain their allegations as to the impugned incidents, to substantiate their legal claims on the violation of the constitutional provision invoked as well as to indicate which rights within the scope of the individual application mechanism have been violated, the reasons and evidence thereof (see S.S.A., § 38; and Veli Özdemir, no. 2013/276, 9 January 2014, §§ 19 and 20).

64. If the specified conditions are not satisfied, the Court may find the application inadmissible for being manifestly ill-founded.

65. In maintaining that “he had not been brought promptly before a judge or other officer authorised by law to exercise judicial power in conjunction with Article 5 § 1 (c) of the Convention”, the applicant failed to submit any explanation or evidence to prove that his particular case fell within the ambit of “Article 5 § 1 (c) of the Convention”, in other words he failed to demonstrate that his placement in a detention room was based on the suspicion of his guilt or the necessity to prevent his fleeing after having committed an offence. It has been observed that during the interview of the police officers with the public prosecutor following his arrest with a false passport, the latter did not give any instruction ordering the applicant’s custody; and that the applicant continued to be detained in spite of the expiry of the forty-eight-hour period specified in Article 19 § 5 of the Constitution as well as Article 91 § 1 of the Code of Criminal Procedures no. 5271. The applicant did not submit any proof or convincing explanation that his detention until 30 June 2014 when his administrative detention was ordered for his being a foreigner fell within the scope of a criminal investigation.

66. For these reasons, as the applicant failed to substantiate the alleged violation, the Court declared this part of the application inadmissible for being manifestly ill-founded without making any further examination as to the other admissibility criteria.

2. Alleged Unlawfulness of Detention, Failure to Duly Inform the Reasons for Arrest and Non-existence of an Effective Remedy against Detention and Opportunity to Offer Redress

a. The Applicant’s Allegations

67. He maintained that he had been placed in the detention room and in the foreigners’ removal centre for 6 days and 54 days respectively in spite of the non-existence of any public prosecutor’s instruction and any deportation order issued in respect of him pursuant to Article 54 of the Law no. 6458 on Foreigners and International Protection -even if such an order existed, it had been notified neither to him nor to his lawyer- ; that he had not been promptly informed, in a language which he understood, of the accusation against him and his legal rights; and that his relatives had not been notified of his custody. He further asserted that his detention lacked a legal ground; that his challenge to administrative detention had been dismissed by the Magistrate Judge; that the Governor’s Office issued an order for his administrative detention on 30 June 2014, eight days after his arrest; that prior to the issuance of administrative detention order, the procedure of “Summons to leave Turkey” set out in Article 56 of Law no. 6458 had not been implemented; that his administrative detention had not been reviewed on monthly basis; and that his request for release had not been subject to an effective judicial review. He also indicated that even after his request for international protection from the Governor’s Office on 22 July 2014, his administrative detention continued in breach of Article 68 of the said Law; and that there was no remedy available in the Turkish law to which he could have recourse against the alleged violations. He accordingly alleged that there had been violations of his right to personal liberty and security as well as right to an effective remedy.

b. The Court’s Assessment

68. Relevant part of Article 19 of the Constitution reads as follows:

“Personal liberty and security

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 against whom there is strong evidence of having committed an offence may be arrested by decision of a judge solely for the purposes of preventing escape, or preventing the destruction or alteration of evidence, as well as in other circumstances prescribed by law and necessitating detention. Arrest of a person without a decision by a judge may be executed only when a person is caught in flagrante delicto or in cases where delay is likely to thwart the course of justice; the conditions for such acts shall be defined by law. 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.

(As amended on April 16, 2017; Act No. 6771) The person arrested or detained shall be brought before a judge within at latest forty-eight hours and in case of offences committed collectively within at most four days, excluding the time required to send the individual to the court nearest to the place of arrest. No one can be deprived of his/her liberty without the decision of a judge after the expiry of the 9 above specified periods. These periods may be extended during a state of emergency or in time of war.

(As amended on October 3, 2001; Act No. 4709) The next of kin shall be notified immediately when a person has been arrested or detained. Persons under detention shall have the right to request trial within a reasonable time and to be released during investigation or prosecution. Release may be conditioned by a guarantee as to ensure the presence of the person at the trial proceedings or the execution of the court sentence. 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; Act 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.”

69. The Constitutional Court is not bound by the legal qualification of the facts by the applicant and it makes such assessment itself (see Tahir Canan, no. 2012/969, 18 September 2013, § 16). As the right to effectively apply to the competent judicial authority, which is safeguarded by Article 19 § 8 of the Constitution for those who are deprived of liberty, is a lex specialis in relation to Article 40 thereof, the Court has not found it necessary, in the present case, to make a further examination under Article 40 of the Constitution.

i. Admissibility

70. Pursuant to Article 57 § 6 of Law no. 6458, a challenge may be brought against the decision ordering administrative detention before magistrate judges which thereby review the lawfulness of the decision. The legislator has assigned the magistrate judges as the appeal authority in respect of the decisions ordering administrative detention in spite of its nature as an administrative action. In envisaging that lawfulness of the decisions ordering administrative detention shall be reviewed by magistrate judges instead of administrative courts which have general jurisdiction over administrative acts, the legislator has taken into consideration the nature of such decision which deprives the foreigner of his liberty. In this sense, administrative courts are not entitled to review the lawfulness of the administrative detention order.

71. On the other hand, as there is no separate provision of law which sets out that claims for compensation of damages sustained on account of the unlawfulness administrative detention order will be dealt with by the judicial authorities, there is no obstacle to bringing such claims before administrative authorities pursuant to Article 2 of Law no. 2577which is a general rule. However, in case of an action for compensation, the jurisdiction of the administrative courts is limited to the determination as to whether any damage has occurred due to the administrative detention order as well as, if any, determination of the amount of compensation, and they are not vested with the authority to review the lawfulness of an administrative detention order pursuant to Law no. 6458. As a matter of fact, the legislator has vested the power to review the lawfulness of the administrative detention order solely in magistrate judges. It has been therefore concluded that no action for compensation may be brought against an administrative detention order without lodging an appeal before the magistrate judge and awaiting for the outcome of the decision to be rendered by the magistrate judge.

72. In addition, if the magistrate judge finds the administrative detention order lawful -given the fact that the administrative judicial authority is not entitled to review the lawfulness of the administrative detention order-, the action for compensation enshrined in Article 2 of Law no. 2577 would become ineffective in respect of compensation claims due to alleged unlawfulness of the administrative detention order.  In such cases, an individual application may be directly lodged with the Constitutional Court in the prescribed period upon finalization of the magistrate judge’s decision on lawfulness of the administrative detention order.

73. However, if the magistrate judge finds the administrative detention order unlawful, it is possible to bring an action for compensation, upon finalization of the magistrate judge’s decision, before the administrative court within the period prescribed in Law no. 2577 for redress of any damage resulting therefrom. In that case, an individual application cannot be lodged with the Constitutional Court without exhausting the compensatory remedy in administrative jurisdiction.

74. Besides, it is undisputed that those who have been deprived of their liberty in the absence of any administrative detention order may directly bring an action for compensation before the administrative courts for damages sustained for being placed under administrative detention.

75. In the present case, the applicant’s appeal against the administrative detention order was dismissed by the İstanbul 7^th Magistrate Judge by its decision of 17 July 2014. It therefore appears that the applicant was not required to exhaust the remedy of a compensatory action before the administrative courts.

76. This part of the application was declared admissible for not being manifestly ill-founded and there being no ground declaring it inadmissible.  

ii. Merits

(1) Alleged Unlawfulness of Administrative Detention

(a) General Principles

77. The right to personal liberty and security is a fundamental right which provides safeguards to protect the individuals against arbitrary interference by the State with their liberty (see Erdem Gül and Can Dündar [Plenary], no. 2015/18567, 25 February 2016, § 62).

78. The Court has defined the notion of deprivation of liberty within the scope of Article 19 of the Constitution. Accordingly, deprivation of liberty encompasses two elements -detention of an individual in a restricted space for a significant period of time and no consent given by that person to such detention- (see Cüneyt Kartal, no. 2013/6572, 20 March 2014, § 17).

79. Phrase of “liberty” specified in the first paragraph of the provision means freedom and independence as well as freeness. In this sense, it may be concluded that there has been an interference with the individual’s liberty only when an individual’s freedom of action is physically restricted. Such restriction on the freedom of action is much stricter than the interference with the freedom of movement safeguarded by Article 23 of the Constitution. For an interference with the right to personal liberty and security, the individual must be physically detained in a restricted space at least for a disturbing period of time (see Galip Öğüt [Plenary], no. 2014/5863, 1 March 2017, § 34).   

80. Regard being had to the wording of Article 19 of the Constitution as a whole, the reasons for restriction set forth in its second and third paragraphs are related to the physical liberty of individuals, and the safeguards contemplated in the subsequent paragraphs are intended for those who are physically deprived of their liberty. Therefore, what is safeguarded by the right to personal liberty and security is merely physical liberty of individuals (see Galip Öğüt, § 35).

81. It is set forth in Article 13 of the Constitution that fundamental rights and freedoms may be restricted only by law. Besides, Article 19 of the Constitution provides for that the conditions under which the right to personal liberty and security may be restricted must be prescribed by law. It appears that the condition of “lawfulness” introduced by Article 13 of the Constitution with respect to any restriction of all fundamental rights and freedoms is specified also in Article 19 thereof in relation to the right to personal liberty and security. Accordingly, pursuant to Articles 13 and 19 of the Constitution which are in harmony with one another, detention as an interference with the personal liberty must have a legal basis (see Murat Narman, no. 2012/1137, 2 July 2013, § 43).

82. The subsequent paragraphs provide safeguards for those who are deprived of their liberty. In this sense, the right to be informed of the reasons for arrest or detention as well as the accusations is safeguarded in paragraph 4; the term of custody is specified in paragraph 5; the necessity that the relatives must be notified of the arrest or detention of the suspect in paragraph 6; the right to be tried within a reasonable time as well as to be released during investigation and prosecution in paragraph 7; the right to apply to a judicial authority in paragraph 8; and the right to compensation in paragraph 9.

83. An interference with the right to liberty and security constitutes a breach of Article 19 of the Constitution unless it also complies with the conditions set out in Article 13 of the Constitution in which the criteria with respect to the restriction of fundamental rights and freedoms are specified (see Halas Aslan, no. 2014/4994, 16 February 2017, §§ 53 and 54).

84. As per Article 16 of the Constitution, the fundamental rights and freedoms of foreigners may be restricted by law compatible with international law. Accordingly, the administrative detention giving rise to deprivation of liberty is to be prescribed by law, and its principles and procedures prescribed by law are to comply with international law (see Rıda Boudra, § 76).

85. 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 Convention, the deprivation of his liberty can no longer be said to be legitimate (see K.A., § 123).

86. 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 under 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).

87. 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 under administrative detention. Otherwise, it cannot be said that individuals are sufficiently protected against an arbitrary and unlawful deprivation of liberty (see K.A., § 125).

(b)   Application of General Principles to the Present Case

88. Pursuant to Law no. 6458, the Governor’s Office may issue an order for administrative detention of the foreigners -out of those whose deportation has been ordered- “who bear the risk of absconding or disappearing; have breached the terms and conditions of legal entry and exit; used false documents; failed to leave Turkey within the prescribed period in the absence of any acceptable excuse; and pose a threat to public order, public security or public health”. The duration of administrative detention in removal centres shall not exceed six months. The need to continue the administrative detention shall be regularly reviewed by the governor’s office on monthly basis. It is not necessary to wait for 30 days in order to make an assessment as to the continued detention. For those foreigners whose administrative detention is no longer considered necessary, the administrative detention shall be immediately ended. They may be required to comply with administrative obligations such as to reside at a given address and report to the authorities in the manner and periods to be determined. The administrative detention order, the extension of its duration and outcomes of the monthly regular reviews as well as the reasons thereof shall be notified to the foreigner, or to his legal representative or lawyer. The person placed under administrative detention or his legal representative or lawyer may appeal against the detention order before the magistrate judge who is to conclude the assessment within five days. The decision of the magistrate judge shall be final. The person placed under administrative detention or his legal representative or lawyer may further appeal to the magistrate judge for a review, alleging that the administrative detention conditions no longer apply or have changed.

89. It appears that the legal arrangement set out in the said Law clearly introduces a procedure which must be complied with in conducting deportation process and is capable of preventing any arbitrariness. In the present case, it must be ascertained whether the procedure set out in the Law was conducted with due diligence (see K.A., § 127).

90. The applicant was arrested at the Sabiha Gökçen Airport on 26 June 2014 while attempting to go abroad with a false passport. He was imposed an administrative fine for misrepresentation of his identity and his illegal entry into Turkey. A criminal investigation was also initiated against him for forgery of an official document. The file contains no information as to the outcome of the criminal investigation.

91. The applicant, who was illegally in Turkey and arrested while attempting to leave Turkey with a false passport, was among the persons who might be deported pursuant to Articles 53, 54 and 57 of Law no. 6458. Accordingly, immediately after an individual’s arrest by law enforcement officers, the governor’s office is to be notified of the situation in order to issue a deportation order. There is no imperative provision which entails that an order for deportation will be issued following the assessment to be made by the governor’s office within forty-eight hours.

92. Pursuant to Article 57 § 2, titled “Administrative detention for deportation purposes and its duration”, of Law no. 6458, out of individuals for whom an deportation order has been issued, the governor’s office shall issue an administrative detention order 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 them to leave, without an acceptable excuse, or pose a threat to public order, public security or public health. Foreigners in respect of whom an administrative detention order has been ordered shall be taken, within forty-eight hours, to the foreigners’ removal centres by the law enforcement units arresting them.

93. As per Articles 16 and 19 § 2 of the Constitution, the foreigners’ right to personal liberty and security may be restricted by law in compliance with the international law. According to Law no. 6458, it is not possible to put in administrative detention the foreigners in respect of whom no deportation order has been issued. As inferred from the applicant’s file, there is no decision ordering his deportation or administrative detention. Upon his arrest with false documents, the Governor’s Office was not immediately informed of the situation. Therefore, it did not issue any deportation order and thereby an administrative detention order in respect of the applicant. Without being subject to such a procedure and in the absence of a prosecutor’s instruction for his custody within the scope of the investigation into the forgery of official document, the applicant had been placed in custody until 3 June 2014 when his administrative detention was ordered, which was contrary to Law no. 6458. Although the applicant could be placed in detention room only for 2 days until the issuance of a deportation order, his continued placement in detention room and the foreigners’ removal centre, in the absence of a deportation order and -in conjunction therewith- an administrative detention order issued against him, lacked a legal basis.

94. Nor could it be ascertained whether the deficiency in the lawfulness condition which was not satisfied at the initial stage of deprivation of the applicant’s liberty has been subsequently eliminated. Although a deportation order could have been issued, pursuant to Article 54 of Law no. 6458, against the applicant for being arrested while attempting to leave Turkey with false documents, the order subsequently issued by the Governor’s Office was submitted neither by the relevant Security Directorate nor the applicant. As the applicant indicated in his application form that he had not been notified with any deportation order, it has been concluded that he was put in administrative detention for sixty days without any legal ground.

95. It has been accordingly observed that the measure of administrative detention required to be applied pending deportation had no legal basis; and that nor was a deportation order issued in the subsequent period in order to ensure lawfulness of the relevant process. Given the failure to monthly review the administration detention as well as the magistrate judge’s failure to identify alleged unlawfulness, the Court has concluded that the administrative detention process was not conducted with due diligence.

96. For these reasons, the Court has found a violation of Article 19 § 2 of the Constitution as the applicant’s detention was unlawful. 

(2) Alleged Failure to Duly Notify the Reason for Placement under Administrative Detention

97. 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.

98. The requirement that legal and factual facts forming a basis for the arrest and detention of an individual must be explained in 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. In this sense, the right to be informed set out in Article 19 § 4 of the Constitution, in some way, embodies the other safeguards inherent in this article (see A.V. and Others, § 137).  

99. The applicant who is a foreigner was arrested and taken into custody on 23 June 2014 while attempting to leave the country with false documents. He was reminded of certain legal rights -such as the rights to remain silence, to legal assistance, to inform his relatives of his arrest and etc.- in the “Arrest and Custody Report, Form of Suspect’s and Accused’s Rights” which was notified to him at 00:05 a.m.. However, it appears that the applicant was reminded of these rights in his capacity as the suspect of the forgery of official documents. Despite the absence of the prosecutor’s instruction for the applicant’s custody for forgery as well as any administrative detention order, the applicant continued to be kept in custody. As there was no judicial or administrative decision ordering his custody, it was not therefore actually possible to inform him of the reasons for his detention. The fact that the administrative detention order was issued on 30 June 2014 -eight days after 23 June 2014 the date when he was initially deprived of his liberty- is also a significant and sufficient indication for this conclusion.

100. Article 57 of Law no. 6458 sets forth that the administrative detention order, 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, and that the person under administrative detention or his legal representative or lawyer may challenge these orders before the magistrate judge.

101. According to the decision of 17 July 2014, which was issued by the 7^th Chamber of the İstanbul Criminal Court, it appears that a decision ordering the applicant’s administrative detention was taken by the Governor’s Office on 30 June 2014. However, it appears from the minutes and documents included in the application form and its annexes that there is no information indicating that this decision and the other decisions on monthly assessments, if any, were notified to the applicant; and that neither the Ministry of Justice nor the Ministry of Internal Affairs provided such information to be included in the application file, which indicates that there is no information demonstrating that the applicant was informed of the reasons for his detention in the Kumkapı Foreigner’s Removal Centre.

102. In the present case, it has been concluded that neither the decision ordering his administrative detention as well as continuation of this measure nor any related information was notified to him in due time, which has therefore impaired his opportunities to request a decision to be issued in respect of him and to request his immediate release if this restriction is unlawful.

103. For these reasons, the Court has found a violation of Article 19 § 4 of the Constitution.

(3) Alleged Absence of an Effective Remedy to Challenge the Administrative Detention

104. Article 19 § 8 of the Constitution and Article 5 § 4 of the European Convention on Human Rights (“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 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 courts upon a challenge as to the unlawfulness of detention (see Firas Aslan and Hebat Aslan, no. 2012/1158, 21 November 2013, § 30).

105. Given the particular circumstances of the present case, Article 19 § 8 of the Constitution entitles a person who is 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.

106. 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 K.A., § 152).

107. As explained in detail in the section where compliance of the applicant’s administrative custody with Article 19 § 2 of the Constitution is discussed, 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. The applicant asserted that this procedure did not effectively operate in the present case.

108. The alleged unlawfulness of the applicant’s detention -as he was detained in the absence of a deportation order to be issued in respect of him at the initial and subsequent stages of his detention as well as of an administrative detention order required to be issued in relation therewith- is also discussed in the relevant section.

109. Law no. 6458 includes no legal arrangement which would cease the actual practice leading to the applicant’s detention without the existence of any decision in this respect. Therefore, he could not request any judicial or administrative authority to review his detention until 30 June 2014 when his administrative detention was ordered.

110. Absence of a deportation order which is the basic legal pre-requisite for the applicant’s detention at the stage when his challenge to the administrative detention order was examined before the criminal court -which thereby led to the failure to consider the unlawfulness of the detention in conducting the review- made it impossible to reach the conclusion that the appeal examination had been conducted “with due diligence” in a way that would provide a safeguard for the applicant.

111. As there is no information indicating whether monthly review specified in Article 57 of Law no. 6458 was conducted, in addition to the unlawfulness of the administrative custody at the initial stage, and if such review was conducted, whether the result thereof and its grounds were notified to the applicant or his lawyer, it cannot be concluded that the administrative custody order was enforced in compliance with the requirement of “due diligence” also at the stage when this order was enforced.

112. As explained 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.

113. 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 of the Constitution, in relation to the substantive and procedural conditions underlying the lawfulness of his deprivation of liberty.

(4) Alleged Violation of the Right to Compensation due to Wrongful Detention

114. In Article 19 § 9 of the Constitution, it is set forth that damages sustained by persons detained contrary to the preceding paragraphs of the same article shall be compensated by the State. This arrangement entails the State to establish a mechanism which provides the opportunity to claim compensation if any of the rights specified in this article has been violated. Therefore, in cases where there has been a violation of one paragraph or several paragraphs preceding Article 19 § 9 of the Constitution, the absence of any compensatory remedy in the domestic law would be also in breach of Article 19 § 9 of the Constitution.  

115. As per Article 125 of the Constitution, acts and actions of the administration are subject to judicial review, and the State is liable to offer redress for damages resulting from such acts and actions. In Articles 141-144 of Code no. 5271, the suspects or accused who have been wrongfully deprived of their liberty during a criminal investigation or prosecution and whose legal rights have not been respected as well as not been reminded to them are entitled to bring an action for compensation before criminal courts for the damages sustained by them. However, the foreigners who are under administrative detention cannot avail themselves of this legal arrangement specified in Code no. 5271 as they have not been deprived of their liberty for any reason as a criminal suspect or accused.  

116. As explained in detail in the section where the prohibition of treatment incompatible with human dignity is dealt with, those whose personal rights have been damaged due to any administrative act and actions under Article 2 of Law no. 2577 may bring an action for compensation. It is also set forth in the same article that the administrative jurisdiction is limited to the review of lawfulness. Accordingly, in cases of an action for annulment or compensation, administrative courts may either issue an annulment decision or award compensation if they have found the administrative act or action unlawful.

117. It has been explained above under the heading of admissibility that Law no. 6458 does not vest the administrative courts with the authority to review the lawfulness of foreigners’ detention; that this authority is exercised solely by the magistrate judges pursuant to Article 57 of Law. 6458; and that it is possible to bring an action for compensation only when magistrate judges find the detention unlawful.

118. The applicant was released by the Kumkapı Centre on 21 August 2014, upon the letter of the Directorate General of Immigration Authority, after having been detained under administrative custody. His detention was discontinued by virtue of an administrative act, and there is no judicial decision taken with respect to the lawfulness of his detention. As the administrative courts are not tasked with the review of the lawfulness of detention, it has been considered that the applicant had no opportunity to ensure redress of his damage by means of directly bringing an action for compensation before lodging an individual application with the Constitutional Court.

119. In the present case, the Court has found a violation of the right to personal liberty and security on the grounds that the applicant’s detention was not lawful, that the reasons for his detention was not duly notified and that there was no effective remedy to challenge his detention. It is therefore necessary that, pursuant to Article 19 § 9 of the Constitution, the applicant should have been provided with a remedy capable of offering redress for his damages.

120. Consequently, the Court has found a violation of Article 19 § 9 of the Constitution as the applicant’s challenge to the administrative detention order restricting his liberty was rejected by the 7^th Chamber of the İstanbul Criminal Court on 17 July 2014 and the administrative courts were not, under Law no. 6458, vested with the review of lawfulness of the administrative detention and did not therefore have the capacity to award compensation in favour of those detained.

C. Application of Article 50 of Code no. 6216

121. Article 50 §§ 1 and 2 of the Code no. 6216 on the Establishment and Rules of Procedures of the Constitutional Court reads as follows:

“1) At the end of the examination of the merits it is decided either the right of the applicant has been violated or not. In cases where a decision of violation has been made what is required for the resolution of the violation and the consequences thereof shall be ruled…”   

(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.”  

122. The applicant claimed 2,498.14 Turkish liras (TRY) for pecuniary damage and TRY 30,000 for non-pecuniary damage.

123. It has been concluded that the applicant’s right to personal liberty and security was violated on the grounds that his detention was unlawful, that the reasons for his detention was not duly notified to him, and that there was no effective remedy to challenge his detention and no opportunity capable of offering redress for his wrongful detention.

124. The applicant was awarded a net amount of TRY 10,000 for his non-pecuniary damage which could not be redressed by merely finding a violation.

125. In order for the Court to award pecuniary compensation, there must be a causal link between the pecuniary damage allegedly sustained by the applicant and the violation found. Although he claimed pecuniary compensation, for the days he could not work, on the basis of the minimum wage, his claim for pecuniary damage must be rejected for the absence of casual link between his unemployment and the violations found.

126.  The court expense of TRY 1.800, which covers the counsel fee, must be reimbursed to the applicant.

VI. JUDGMENT

For these reasons, the Constitutional Court held on 30 November 2017:

A. The applicant’s request for concealing his identity in public documents be ACCEPTED;

B. 1. By MAJORITY and by dissenting opinion of Mr. Serruh Kaleli that the alleged violation of the prohibition of treatment incompatible with human dignity due to the detention conditions be DECLARED INADMISSIBLE for non-exhaustion of available remedies;

2. UNANIMOUSLY that the alleged violation of the applicant’s right to personal liberty and security due to the breach of the principle of being promptly brought before a judge be DECLARED INADMISSIBLE for being manifestly ill-founded;

3. UNANIMOUSLY that the alleged violation of his right to personal liberty and security due to the unlawfulness of his detention, the failure to duly notify him of the reasons for his detention and the lack of an effective remedy to challenge his detention as well as of an opportunity capable of offering redress for his wrongful detention be DECLARED ADMISSIBLE.

C. UNANIMOUSLY that the right to personal liberty and security was VIOLATED in so far as it concerned Article 19 §§ 2, 4, 8 and 9 of the Constitution due to the unlawfulness of the applicant’s detention, the failure to duly notify him of the reasons for his detention and the lack of an effective remedy to challenge his detention as well as of an opportunity capable of offering redress for his wrongful detention.

D. 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 court expense covering the counsel fee of TRY 1,800 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 Ministry of Justice.

DISSENTING OPINION OF JUSTICE SERRUH KALELİ

The applicant maintained that he was arrested on 23 June 2014 while attempting to go abroad with a false passport and that he was initially placed under administrative custody in a detention room for six days by virtue of an order having no legal basis and subsequently in the Kumkapı Foreigners’ Removal Centre for fifty-four days.

He asserted that while being detained, he had been subject to treatment incompatible with human dignity; that he had been deprived of daylight during the first six day and had had no opportunity to do physical exercise; that physical conditions of his detention had failed to comply with the criteria set by the European Court of Human Rights (“the ECHR”) as well as with international standards; that the cells had been overcrowded; and that he had had to stay with in an unhealthy and smoker environment with full of pests and persons suffering from all kinds of diseases. He further maintained that he had been ensured to have access to fresh air for only 10 minutes once a week; that there had been no doctor and health officer at the facility with limited access to medical assistance; that there had been no social care specialist; that toilets and bathrooms had been dirty and not been cleaned regularly; that prisoners had not been provided with clean potable water which could be only purchased in return for money; that prisoners had been served insufficient and poor quality food; that he had had to live in a noisy environment with lights on at night and he had been therefore mentally depressed, which amounted to a humiliating treatment incompatible with human dignity; and that there had been no effective remedy whereby he could challenge his detention. He accordingly lodged an application and requested the Court to find a violation of Article 3 of the Convention and Article 17 of the Constitution.

ASSESSMENT AS TO THE ALLEGED VIOLATIONS OF THE PROHIBITION OF TREATMENT INCOMPATIBLE WITH HUMAN DIGNITY AND OF THE RIGHT TO AN EFFECTIVE REMEDY IN CONJUNCTION THEREWITH:

1) Although it is not bound by the legal qualification of the facts by the applicant, the Court, in its previous judgments, examined the detention conditions of the foreigners who were placed in administrative detention within the ambit of the prohibition of treatment incompatible with human dignity (see Rıda Boudraa, no. 2013/9673, 21 January 2015; K.A.; F.A. and M.A., no. 2013/655, 20 January 2016; A.V. and Others, no. 2013/1649, 20 January 2016; F.K. and Others, no. 2013/8735, 17 February 2016; T.T., no. 2013/8810, 18 February 2016; A.S., no. 2014/2841, 9 June 2016; and I.S. and Others; no. 2014/15824, 22 September 2016).

2) Regard being had to the impugned facts of the present case as well as the fact that the Court had previously declared admissible all applications of similar nature and there being no ground declaring it inadmissible, the present application was declared admissible and accordingly decided to be examined as to its merits under Articles 17 and 40 of the Constitution.

3) The applicant’s first complaint which he considered to fall under the prohibition of treatment incompatible with human dignity concerns the conditions of the detention room where he had been placed in custody for 6 days.

4) The applicant, an Uzbekistan citizen who entered Turkey illegally and also attempted to leave the country with a false passport, was arrested on 23 June 2014. He was then placed in the detention room of the Sabiha Gökçen Airport for 6 days until 28 June 2014 when he was transferred to the Kumkapı Centre. It is evident from the “Interview Report” issued by the law enforcement officers on 23 June 2014 following their interview with the public prosecutor by phone that the applicant was being placed under administrative detention as there was no instruction for taking him in custody for the offence of forgery.

5) Upon the applicant’s challenge to lift the administrative detention order, which was dated 15 July 2014, the 7^th Chamber of the İstanbul Criminal Court rendered a decision where it was indicated that the applicant had been under administrative detention since 30 June 2014.

6) For the material conditions to which the persons placed under administrative detention have been subject to fall into the ambit of Article 17 § 3 of the Constitution, it must attain a minimum threshold of severity. Detention conditions must not reach an intensity exceeding the unavoidable level of suffering inherent in detention as well as must have no mental effect on the foreigner detained and foster a sense of desperation in him. In making such an assessment as to this minimum threshold of severity, all information of the detention conditions, notably the duration of detention, its physical or mental effects as well as the victim’s sex, age and state of health must be taken into consideration (see K.A., § 93; and Rıda Boudraa, § 60).

7) 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 K.A., § 94; and Rıda Boudraa, § 61).

8) It may be inevitable under certain circumstances to place the foreigners -who illegally entered Turkey and were arrested by law enforcement officers while attempting to leave Turkey- in detention rooms before necessary steps being taken pending their deportation and prior to their detention in the foreigners’ removal centres. However, mandatory placement in detention rooms for a short period of time does not per se amount to a violation of the treatment incompatible with human dignity. In this respect, the duration of detention also plays an important role for the foreigners’ placement in detention at police stations to exceed a minimum level of severity. The placement of a foreigner/refugee in detention rooms -like high security penitentiary institutions where suspects of ordinary offences are being held- for a long time may, in combination with other conditions, constitute a breach of the treatment incompatible with human dignity.  In order to conclude that the mandatory and short-term placement in detention rooms has exceeded the minimum threshold of severity, a certain part of the other elements of the ill-treatment must also exist.  

9)  It is indicated in various reports that detention rooms which are defined in Article 4 of the Regulation on Arrest, Custody and Statement-Taking Procedures as “places where suspects or accused are placed until they are brought before the judicial authorities” do not afford appropriate conditions for detention of the foreigners to be deported to their countries of origin.

10) However, it has been found unreasonable to consider that placement, in detention rooms for a reasonable period, of foreigners, who would undergo an assessment as to whether a deportation order would be issued pursuant to Articles 54 and 57 of Law no. 6458, until they are transferred to foreigners’ removal centres as well as of foreigners, who have sought international protection pursuant to Article 71 of the Law and received no final decision yet, until they are transferred to the foreigners’ admission and accommodation centres is per se sufficient to exceed the minimum threshold of severity.

11) The applicant did not complain of having been deprived of opportunities -such as food, cleaning and health-care services- to the extent it would go beyond the inevitable element of suffering and humiliation connected with the conditions of the detention rooms where criminal suspects are being held. Besides, the applicant’s abstract allegations of being deprived of daylight and outdoor activities without providing any detailed explanation as to the conditions of detention rooms is not sufficient for acknowledging that the application is substantiated.

12) The applicant’s placement in a detention room conditions of which have not been assessed to be compatible with the requirements of the prohibition of treatment incompatible with human dignity for 6 days before his transfer to the foreigners’ removal centre was not per se considered sufficient to accept that the minimum threshold of severity has been exceeded with regard to the prohibition of treatment incompatible with human dignity, which is enshrined in Article 17 § 3 of the Constitution (for a similar judgment where the ECHR held that a foreigner’s placement in a detention room with insufficient physical conditions for 11 days had not exceeded the minimum threshold of severity, see Moghaddas v. Turkey, § 56).

13) For these reasons, the present application must be declared inadmissible for being manifestly ill-founded as it is explicit that the applicant’s placement in a detention room for 6 days was not in breach of the prohibition of treatment incompatible with human dignity. However, the Court did not make any assessment in this respect. 

14) As regards the applicant’s other complaint concerning the conditions of detention at the Kumkapı Foreigners’ Removal Centre, Articles 5, 13, 16, 17 and 23 of the Constitution read as follows:

“Article 5 – Fundamental aims and duties of the State

The fundamental aims and duties of the State are to safeguard the independence and integrity of the Turkish Nation, the indivisibility of the country, the Republic and democracy, to ensure the welfare, peace, and happiness of the individual and society; to strive for the removal of political, economic, and social obstacles which restrict the fundamental rights and freedoms of the individual in a manner incompatible with the principles of justice and of the social state governed by rule of law; and to provide the conditions required for the development of the individual’s material and spiritual existence.

Article 13- Restriction of fundamental rights and freedoms (Amended on 3 October 2001 by Article 2 of Law no. 4719)

Fundamental rights and freedoms may be restricted only by law and in conformity with the reasons mentioned in the relevant articles of the Constitution without infringing upon their essence. These restrictions shall not be contrary to the letter and spirit of the Constitution and the requirements of the democratic order of the society and the secular republic and the principle of proportionality.

Article 16 - Status of aliens

The fundamental rights and freedoms in respect to aliens may be restricted by law compatible with international law.

Article 17 - Personal inviolability, corporeal and spiritual existence of the individual

Everyone has the right to life and the right to protect and improve his/her corporeal and spiritual existence.         

…

No one shall be subjected to torture and mal-treatment; no one shall be subjected to penalties or treatment incompatible with human dignity.

…

Article 23 - Freedom of residence and movement

Everyone has the freedom of residence and movement.

Freedom of residence may be restricted by law for the purpose of preventing crimes, promoting social and economic development, achieving sound and orderly urbanization, and protecting public property.

Freedom of movement may be restricted by law for the purpose of investigation and prosecution of an offence, and prevention of crimes…”.     

15) The right to protect and develop one’s corporeal and spiritual existence is safeguarded under Article 17 of the Constitution. The first paragraph of the same provision intends to protect human dignity. In its third paragraph, it is prescribed that no one shall be subjected to “torture” and “mal-treatment” as well as to penalties or treatment incompatible with human dignity (see Cezmi Demir and Others, no. 2013/293, 17 July 2014, § 80).

16) However, in order to conclude that these rights which are safeguarded by this prohibition have been under absolute protection, it is not sufficient for the State to avoid inflicting torture and ill-treatment. It must also protect individuals against the acts of its own agents and even third parties which may amount to torture and ill-treatment (see Cezmi Demir and Others, §§ 81-82).

17) The said article does not embody any exception to the State’s negative obligation not to inflict torture and ill-treatment. It is also specified in Article 15 of the Constitution which allows for suspension of fundamental rights and freedoms in times of war, mobilization or a state of emergency that the integrity of individuals’ corporeal and spiritual existence shall be inviolable. This points out the absolute nature of the prohibition of torture and ill-treatment (see F.R., no. 2016/4405, 15 February 2017, § 54).

18) In Article 5 of the Constitution, it is among the State’s fundamental aims and duties to provide the conditions required for the development of the individual’s corporeal and spiritual existence. Regard being had to Articles 17 and 5 of the Constitution in conjunction with the principle of constitutional holism, it appears that the State is also obliged  to protect individuals against torture and ill-treatment (positive obligation) (see F.R., § 56).

19) 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 time spent in detention; sex and age of the applicant; and mental health of the victim are of importance (see Tahir Canan, § 23). The aim and motivation of the alleged treatment may also be added to these factors (see Cezmi Demir and Others, § 83).

20) 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 nature but 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.  Accordingly, pursuant to the constitutional arrangement, the treatment which causes damage, to the highest extent, to the individual’s corporeal and spiritual existence is “torture”. Along with the severity of the treatment, Article 1 of the United Nations Convention on Torture and other Cruel, Inhuman or Degrading Treatment and Punishment points out that “torture” is applied notably for the purposes of obtaining information, punishing or intimidating, or with a discriminatory motive (see Cezmi Demir and Others, § 84).

21) Inhuman treatments which do not reach the level of “torture” but which is premeditated, last for a certain period of time and cause intense physical and mental suffering may be defined as “mal-treatment”. Suffering in these cases must not go beyond the level which is inevitable in a given form of legitimate treatment or punishment. Unlike torture, “mal-treatment” does not involve the condition of causing a suffering with a certain motivation (see Cezmi Demir and Others, § 88).

22) Treatments 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”. Unlike “mal-treatment”, such treatment creates a humiliating or degrading effect on the individual even if it does not lead to any physical or mental suffering (see Cezmi Demir and Others, § 89).

23) 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. If a treatment is applied publicly or the public is informed of such treatment, it would play an important role in establishing the degrading nature of this treatment. However, non-public nature of the treatment would not prevent its being defined as ill-treatment if it makes him feel inferior. 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 (see Cezmi Demir and Others, § 90).

24) The authority to control foreigners’ entry into, and their residence within, the country as well as the authority to deport the foreigners in the country are entrusted by virtue of international law to sovereign States. Pursuant to Article 23 of the Constitution, everyone has the freedom of residence and movement. It is also specified therein that citizens cannot be deported or deprived of their right of entry into the homeland. However, it is set out in Article 16, which is the basic arrangement as to the fundamental rights and freedoms enjoyed by foreigners: “the fundamental rights and freedoms in respect to foreigners may be restricted by law compatible with international law”.  

25) In this respect, it seems possible to impose restriction on the freedom of movement and residence exercised by the foreigners arrested while attempting to illegally enter in or leave the country as well as to detain them. However, this distinction between citizens and foreigners must be in accordance with international law. It is possible to arrest or take into custody the foreigners having illegally entered in, or attempting to illegally leave, Turkey in compliance with the procedure prescribed in the laws, pending their deportation or their request for international protection (see Rıda Boudraa, § 73).  

26) It has been noted above that the Constitutional Court examines the conditions of detention of migrants -who are placed under administrative detention in the foreigners’ removal centres- within the scope of the prohibition of treatment incompatible with human dignity. In its judgments of such kind, the Court has taken into consideration the criteria inherent in the standards recognised by the European Committee for the Prevention of Torture (CPT) with regard to “the migrants placed under administrative custody” in making an assessment as to whether physical conditions of the places where the foreigners are detained attain the minimum threshold specified in Article 17 § 3 of the Constitution.

27) According to the standards accepted by the CPT, in cases where foreigners are to be deprived of their liberty for a long time pursuant to the legislation on foreigners, they must be placed in centres especially designed for this purposes and having a program appropriate for their legal status, physical conditions and adequately qualified staff. Such centres must be furnished with adequate equipment, be clean and tidy and must provide a sufficient living space for detainees. Such centres must be also ensured, to the greatest extent possible, to leave the impression that they are not in the form of prisons. Programmed activities must involve access to outdoor exercises as well as to a room where they can spend time and which is furnished with radio/television, newspapers/journals and other appropriate recreation means. It is accepted that the longer the period under which such individuals are detained, the more extensive the activities to be provided for them must be. In this sense, CPT accepts that all convicts without any exception (including those kept in solitary confinement) must be provided with the opportunity to do outdoor exercises; and that places where open-air exercises will be performed must be of reasonable size and provide shelter, as much as possible, against unfavourable weather conditions. It is explicit that this standard introduced for convicts are a fortiori applicable to “the migrants kept in detention” (see K.A., § 98).

28) The above-mentioned principles form in principle minimum standards for the assessments to be made by the Court on this issue. However, these principles must be assessed in the light of the particular circumstances of each concrete case.

29) As appears from the individual application form and the information provided by the Security General Directorate, it is undisputed that the applicant was held in the Kumkapı Foreigners’ Removal Centre for 54 days between 28 June and 21 August 2014. The challenges experienced by those detained in such centres due to the limited space allocated to them as well as existence of places other than dormitories where inmates may spend time are the factors to be taken into consideration as a criteria in assessing the living conditions pursuant to Article 17 of the Constitution.

30) The applicant failed to provide precise information about the total number of inmates kept at the Kumkapı Centre at the relevant time as well as about the unit where he was staying and the number of inmates kept in that unit, -information which could be taken into consideration in determination of the living conditions at the Kumkapı Centre and the number of inmates-. However, he instead noted that there were sometimes over 500 inmates at the Kumkapı Centre.

31) In this sense, the most significant materials at hand are the information submitted through the letter of the Security General Directorate dated 16 March 2016, the report of 2012 issued by the Grand National Assembly of Turkey, findings of the UN Special Rapporteur on the Human Rights of Migrants, the ECHR’s judgment in the case of Yarashonen v. Turkey dated 24 June 2014 as well as the CPT’s report referred to in this judgment, the Constitutional Court’s judgment in the case of K.A. and the report issued by the Human Rights Foundation of Turkey (“the Foundation) which substantially form a basis for the K.A. judgment.

32) Another element to be considered within the scope of the prohibition of treatment incompatible with human dignity is the spaces -other than dormitories- where inmates may spend time as such spaces are in fact capable of reducing the unfavourable effects of the living conditions. 

33) Regard being had to the conditions under which the applicant was kept, it has been observed that there are a large hall allocated as a corridor and dining hall, along with the units which are separated from the administrative offices by iron doors, as indicated in the Foundation’s report . There are three sports equipment in the corridor. It is indicated that some of the migrants are sleeping in the TV room for lack of available space in the dormitories. It has been accordingly concluded that the spaces designed for common use of inmates are very limited as they are used as a dormitory due to overcrowding in the dormitories. Accordingly, it has been observed that the migrants staying at overcrowded dormitories with attached bunk beds and cupboards are not provided with an environment where they could have a rest.

34) In the report containing the findings and conclusions reached through the official visit paid by the UN Special Rapporteur on the Human Rights of Migrants to the Kumkapı and Edirne Foreigners’ Removal Centres between 25 and 29 June 2012, it is indicated that conditions of the removal centres are poor; those who are under administrative detention as well as the children are usually kept locked in rooms or units with very limited or no access to outdoor spaces; and that the other significant concerns are “overcrowding”, “unhealthy conditions” and “inadequate food”.

35) In addition to the above-given considerations, in the light of the standards established by the CPT on this issue, those detained at the Kumkapı Centre must be provided with the opportunity to do open-air exercise every day for at least one hour, as a measure capable of ensuring the inmates to maintain their daily lives under acceptable conditions.

36) In the GNAT’s report issued with regard to the visit of 11 May 2012, it is pointed out that irregular migrants detained at the Kumkapı Centre have access to fresh air for short periods only once a week because of the location of the Kumkapı Centre and understaffing. However, it is not evident from the report whether this finding based on theoretical information submitted by the authorities complies with the practice. However, it is indirectly stated in this report that merely this finding has turned the Kumkapı Centre into a prison for irregular migrants and that the opportunity to have access to fresh air once a week is inadequate.

37) In the Foundation’s report, it is indicated by the director of the Kumkapı Centre that those under administrative detention have access to fresh air at the yard for 45 minutes during weekdays and for 2-3 hours during weekends. However, the applicant maintained that he had access to fresh air only for 10 minutes once a week. According to the non-governmental organizations whose considerations are referred to in the report, the migrants’ statements that they have not been indeed provided with the fresh air opportunity as indicated and even some of them could not avail of this opportunity for weeks while some of them could have access to fresh air only twice during three or four months increase the plausibility of the applicant’s allegation.

38) In the Security General Directorate’s letter of 16 March 2013, it is indicated “inmates, in groups, are ensured to have access to fresh air at the yard to the extent possible given the physical conditions of the Kumkapı Centre and number of staff, and within the centre, there is also an outdoor space designated for ventilation where all inmates may use during the day”. However, in its letter dated 7 January 2016 in reply to the individual application of K.A., there is no information as to this space designated for ventilation and no explanation as to its features and capacity as well as the duration during which inmates may use there. It is contradictory that the Security General indicates, on one hand, that the Kumkapı Centre has a space where all inmates may avail for ventilation during the day and, on the other hand, that inmates are ensured to have access to fresh air to the extent possible given the physical conditions and number of staff. This contradictory explanation is in support of the alleged lack of sufficient ventilation at the Kumkapı Centre.

39) Besides, given the absence of any information indicating that the criticisms included in the report issued with regard to the visit paid on 2 May 2014 shortly before 28 June 2014, the starting date of the applicant’s administrative detention, it is explicit that the ventilation opportunity provided “to the extent possible given the physical conditions and number of staff of the Kumkapı Centre” is not capable of satisfying the CPT’s standards. Moreover, as pointed out in the Foundation’s report, the authorities admitted that the yard of the Kumkapı Centre is being used as a parking lot and that the inmates could not be provided with the opportunity to have access to fresh air for reasons such as security risk and unfavourable weather conditions.

40) Regard being had to the above-mentioned findings, it has been concluded that the conditions under which the applicant was detained at the Kumkapı Centre was of the nature that could reach the level of the prohibition of “treatment incompatible with human dignity” safeguarded by Article 17 of the Constitution; that insufficient spaces for common use, which are designed not for accommodation but for rest, as well as most importantly, the very limited opportunity of access to fresh air made the applicant’s detention conditions intolerable, which was in breach of the prohibition of treatment incompatible with human dignity (see, for the Court’s similar judgments, Rıda Boudraa, no. 2013/9673, 21 January 2015; K.A.; F.A. and M.A., no. 2013/655, 20 January 2016; A.V. and Others, no. 2013/1649, 20 January 2016; F.K. and Others, no. 2013/8735, 17 February 2016; T.T., no. 2013/8810, 18 February 2016; A.S., no. 2014/2841, 9 June 2016; and I.S. and Others, no. 2014/15824, 22 September 2016).

ALLEGED VIOLATION OF THE RIGHT TO AN EFFECTIVE REMEDY:

41) The applicant maintained that he was detained, at the detention room and the Kumkapı Foreigners’ Removal Centre for 60 days, under conditions that would constitute inhuman and degrading treatment; and that there was no effective legal remedy whereby he could challenge the detention conditions. He accordingly alleged that his rights to a fair trial and to an effective remedy were violated.

Article 40 of the Constitution reads as follows:

   “ARTICLE 40- Protection of fundamental rights and freedoms

   Everyone whose constitutional rights and freedoms have been violated has the right to request prompt access to the competent authorities.

(Paragraph added on October 3, 2001; Act No. 4709) 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…”

42) The right to an effective remedy ensuring the protection of fundamental rights and freedoms is enshrined in Article 40 of the Constitution. This right is a fundamental right safeguarded by the Constitution and entitles an individual alleging a violation of his freedom to promptly resort to a competent authority. This right is not an independent right which can be exercised alone but a complementary right which may be exercised only in case of an alleged violation of any other fundamental right and freedom safeguarded by the Constitution. In other words, in order to discuss whether the right to an effective remedy has been violated, it must be firstly ascertained in respect of which fundamental rights and freedoms the right to an effective remedy has been restricted (see Onurhan Solmaz, no. 2012/1049, 26 March 2013, §§ 33-34; and Sıtkı Güngör, no. 2013/5617, 21 April 2016, § 86).

43) To exercise the right to an effective remedy, existence of violation of one of the fundamental rights and freedoms is not a pre-requisite. This right requires an individual who is of the opinion that he has sustained damage on account of an alleged unconstitutionality to have recourse to a legal remedy in order to ensure adjudication of his allegations as well as, if possible, redress of his damage. In other words, everyone alleging to be victim of an arguable violation of any fundamental rights and freedoms enshrined in the Constitution is entitled to an effective remedy under Article 40 of the Constitution (see Sıtkı Güngör, § 87).

44) 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 preventing the applicant’s alleged violations, for terminating the alleged violation if it still continues, or for affording redress for the alleged violation which no longer continues. 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. In this regard, in order for a legal remedy to be effective, recourse to this remedy must not be unjustly prevented notably by the acts or omissions of public authorities (see Ramazan Aras, no. 2012/239, 2 July 2013, §§ 28-29; Hatice Gizem Dağcı and Sevin Gül Dağcı, no. 2013/3438, 17 September 2014, § 28; and K.A. [GC], no. 2014/13044, 11 November 2015, § 71).

45) It appears from the information included in the individual application form and the letter issued by the Security General Directorate that the applicant was placed under administrative detention at the Kumkapı Foreigners’ Removal Centre for 54 days between 28 June 2014 and 21 August 2014.

46) 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 includes the general review to be conducted 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.

47) The legal remedy set forth in Article 57 of Law no. 6458 which allows for an appeal against the administrative detention order before the magistrate judges 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 this remedy is intended to review the lawfulness of the administrative detention order; that in the present case, upon the applicant’s challenges against this order, the incumbent magistrate judges made assessments merely to that end but not in respect of the allegedly poor conditions of detention which are put forward by the applicant in his petition.

48) As a matter of fact, it is indicated in the 2012 report of the GNAT that there is no arrangement to ensure uniformity among all removal centres in terms of the treatments to be applied to the irregular migrants detained therein and the relevant processes, which has led to different treatments; and that a regulatory legal instrument must be prepared on this matter.

49) In the light of these findings, it has been concluded that there existed no administrative and judicial remedy which offered a reasonable prospect of success and was effective both in theory and in practice in respect of the applicant’s legal interests safeguarded by Article 17 § 3 of the Constitution.

50) For these reasons, it has been held that there was no effective legal remedy required by Article 40 of the Constitution for the alleged violation of Article 17 of the Constitution on account of poor detention conditions; and that there had been therefore a violation of the right to an effective remedy. Therefore, I do not agree with the conclusion reached by the majority.

The assessment as to the grounds submitted by the majority of the Court:

51) In reaching such conclusion, the majority of the Court departed from the Court’s established case-law whereby in case of the alleged violations sustained by the applicants under detention, the Court finds violations of Article 17 § 3 of the Constitution as well as Article 40 for lack of an effective remedy.  

52) In the majority’s opinion, it is stated that the applicant has been no longer kept at the impugned centre; that the violation no longer continues as “his detention” has ended; that there is no legal interest in respect of the applicant in seeking prospective improvement of the conditions; that the application is devoid of merit; that if the applicant has actually sustained damage, the effective legal mechanism to offer a redress is COMPENSATORY remedy; that in spite of non-existence of any judicial/administrative decision awarding compensation, non-operation of such a remedy cannot be a proof of its ineffectiveness; and that what is indeed effective should have been the existence of a decision where it is held that no compensation would be paid. 

53) Besides, majority of the Court found the application inadmissible for non-exhaustion of available remedies without making any further examination as to admissibility conditions as Article 2 of Law no. 2577 formed a sufficient legal basis for the damage caused by the administration; the courts were in a better position to assess the physical conditions of the foreigners’ removal centres; and this was a remedy offering a prospect of success and sufficient redress. Therefore, the majority did not examine the application under Article 40 of the Constitution.

54) In Article 5 of the Constitution, it is one of the State’s fundamental aims and duties to provide the conditions required for the development of the individual’s material and spiritual existence. When Articles 17 and 5 of the Constitutions are taken together by virtue of the principle of constitutional holism, it appears that the State is also obliged to protect individuals from torture and ill-treatment (positive obligation) (see F.R., no. 2016/4405, 15 February 2017, § 56).

55) The wording of the grounds submitted by the majority and likely to be construed that in cases where the applicant has left the place where he was detained, there is no need to fulfil this prospective duty incumbent on the State, which is not therefore in the applicant’s favour or involves no legal interest for him, leads to implicit JUSTIFICATION of these treatments exposed by such individuals, diminishes the State’s obligation to increase detention conditions up to the standards safeguarded by the Constitution, as well as instead of primarily ensuring the protection of their rights, affords an opportunity for individuals -detained under conditions incompatible with human dignity- to obtain monetary redress on account of the damage they have sustained if proven, which is legally unacceptable.

56) Besides, in the compensatory proceedings in our country, the burden of proof is on the defendant to substantiate his expenses and gains. The criteria and considerations afforded through the compensatory proceedings for offering redress for distress and suffering always remain insufficient and vary according to the courts/experts dealing with the compensatory proceedings. The compensatory amount awarded has on no account had a social deterrent effect on those leading to award of compensation.

57) Given the facts and incidents taking place at the removal centre where the applicant was unlawfully detained, content of the case-file, the reports and documents issued by the institution and the commission as a whole, there is no doubt that the applicant’s living conditions during the period when he was deprived of his liberty in a way incompatible with human dignity do not satisfy the conditions set out in the Convention as well as the relevant standards. It also appears from the information provided by the Kumkapı Centre in reply to the questions put by the Court concerning the national and international criteria that the issues of which the applicant is complaining are also proven to have existed, even in part.

58) In the Court’s previous case-law, the question as to the detention conditions has been explicitly established in compliance with the ECHR’s case-law and in a way that would involve the procedure both in theory and in practice. In this sense, as it is a legal obligation incumbent on the State to ensure the conditions at the removal centres to be in compliance with the humane living conditions and legal rules, I do not agree with the grounds leading to a change in the Court’s established case-law which is considered to have justified the unjust interference with the right in question under similar circumstances.

59) A step to be taken for preventing violation covers an area from which everyone would benefit. However, redress of the damage sustained due to the violation has an individual sphere of influence. In case of a violation which could no longer be remedied in respect of the individual having suffered, offering redress is of course the sole remedy. However, I do not concur with the conclusion which points out a new administrative remedy which has not yet been tried and yielded to any outcome of probative nature in respect of this way of redress.

60) Besides, in respect of the notion of an effective remedy, rather than a sole decision, a series of decisions whereby the existence of the violation has been found in every case of similar nature and a redress is granted may constitute a basis for the effectiveness criteria. What is important is to protect fundamental rights and freedoms and contribute their maintenance and improvement as well as to permanently prevent unjust interferences with these rights and freedoms and to take preventive measures in this regard.

61) I do not consider that in case of such a complaint, relying, as a ground as in the present case, on the judicial or administrative authorities’ expectation of a decision based on a PRESUMPTIVE OUTCOME which almost justifies a degrading treatment incompatible with human dignity, is an accurate legal thesis. For these reasons, I do not agree with the majority’s conclusion as there have been violations of Articles 17 and 40 of the Constitution and there is no ground requiring departure from the Court’s previous case-law.