The ECHR has found a violation of the requirements of paragraph 4 of article 5, article 13, article 3, paragraph 1 of article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR has found a violation of the requirements of paragraph 4 of article 5, article 13, article 3, parag Сведения: 2020-05-16 03:57:16

ECHR judgment of 17 October 2019 in the case of “G.B. and Others (G.B. and Others) v. Turkey” (application No. 4633/15).

In 2015, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Turkey.

The case has successfully examined the application about the applicants' detention without any legal justification and their lack of an effective remedy. The case has violated the requirements of paragraph 4 of Article 5, Article 13, Article 3, paragraph 1 of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.


Circumstances of the case


The applicants in the case were the citizens of the Russian Federation: a mother (the first applicant) and her three children (second to fourth applicants). The three juvenile applicants were detained for three months without any legal basis at the Kumkapi Center for Displaced Persons or the Kumkapi Region until their asylum application and their deportation were examined. The office of the governor of the respective il (region) issued a decision to detain the first applicant. The applicants unsuccessfully appealed six times to the illegality of their administrative detention under Law N 6458 of the Justice of the Peace of Istanbul, and also lodged a separate complaint with the Turkish Constitutional Court while they were still being detained. The applicants were then transferred to the Gaziantep Center for Displaced Persons in the silt (region) of Gaziantep and eventually released by the justice of the peace of that il (region), who, on the basis of the latest decision of the governor of the il (region) of Gaziantep, declared the applicants' detention unlawful. The applicants were released while their case was still pending before the Turkish Constitutional Court.


QUESTIONS OF LAW


Concerning compliance with article 5, paragraph 4, of the Convention. According to paragraph 6 of Article 57 and paragraph 7 of Article 68 of Law No. 6458, foreign citizens who are administratively detained can challenge the lawfulness of their detention in a magistrate court, and the judge must make a final decision on the complaint within five days.

(a) The situation concerning the second to fourth applicants (young children). A literal reading of this law suggests that only justices of the peace were empowered to consider the legality of administrative decisions on the basis of which foreign citizens were detained, thereby excluding persons detained without this decision from their jurisdiction. It was in such a situation that the second to fourth applicants in the magistrates ’court in Istanbul were found.

Before they were transferred to ghaziantep to il (region) and released by decision of the magistrate of that il (region), the applicants were in a legal vacuum for a long period and did not have at their disposal an effective remedy. The scope of the proceedings by the magistrate iala (region) of Gaziantep, who decided to release the applicants from custody, was limited by the legality of the decision of the governor of ili (region) Gaziantep to detain the applicants, but did not concern the period when the applicants were previously detained in g. Istanbul without any formal decision.

(b) The situation concerning the first applicant (mother). No reasons were given explaining why the factors that led to the Magistrate’s (regional) court of Gaziantep ultimately led to the decision on the unlawfulness of the first applicant’s detention, such as the absence of any explanation or evidence justifying her detention, as well as the absence of a decision to reject the asylum application that entered into force, was not or could not be taken into account by the Istanbul City Court, given that they existed from the very beginning of the situation complained of.

Even more important than the length of the individual proceedings was the general effect of the inappropriate review by the world court of Istanbul of subsequent decisions, since this led to an unreasonably prolonged detention of the first applicant, thereby significantly undermining the effectiveness of the judicial review mechanism established by Law No. 6458.

(c) An individual complaint to the Turkish Constitutional Court. The applicants complained about both the unlawfulness of their detention and the failure of the Istanbul World Court to effectively consider its legality. The applicants called the attention of the Turkish Constitutional Court to the fact that they were detained without exploring the possibility of applying other alternative measures to them, despite their vulnerable position as a single mother and three young children, and they were not informed of the reasons for their detention.

An individual complaint to the Turkish Constitutional Court can in principle be considered an appropriate remedy within the meaning of Article 5 § 4 of the Convention. However, the Turkish Constitutional Court did not examine the applicants' complaints about a violation of their right to freedom. About three and a half years after the filing of an individual complaint, the Turkish Constitutional Court simply ruled that since the applicants 'detention during the period under review had been declared unlawful by the Magistrates ’(region) Gaziantep magistrates' court and they were released, the applicants could appeal to the administrative courts for compensation in links to unlawful detention.

After filing a complaint with the Turkish Constitutional Court, the applicants were detained (administratively) for another 50 days, during which he took no action to examine their complaint. Although the Court is, in principle, prepared to allow longer proceedings in constitutional courts, provided that the initial order to detain a person is issued by a court as part of a procedure that provides appropriate guarantees of due process, the constitutional courts must nevertheless comply with the urgency requirement. In the present case, the Turkish Constitutional Court did not act with the speed required by the circumstances of the case.

Firstly, in cases where the decision to detain a person was not issued by a judge, subsequent judicial review of the lawfulness of this decision should be carried out more quickly than consideration of a judicial detention order. The applicants' detention order was or should have been issued by the governor's administration, which was the administrative authority. The Istanbul Magistrates Court, which was the first instance court to examine the lawfulness of administrative detention of persons during the first three months, when the applicants were detained, either did not carry out the examination at all or had no effect. In such circumstances, the Turkish Constitutional Court should have considered the applicants' complaint much faster.

Secondly, in exceptional cases, if domestic authorities decide to detain a child and his / her parents for purposes related to migration, the legality of this decision should be immediately considered by the authorities of all instances. In the absence of any explanation as to why the Turkish Constitutional Court could not consider the lawfulness of the applicants' detention while they were in this situation, which lasted a substantial period, the court did not display the due diligence required by the circumstances of the case. This is especially true given that the applicants' case was not complicated and that the applicants presented clear arguments appealing the unlawfulness of their detention, which could be easily verified by the case file without further investigation.

Thirdly, although the Turkish Constitutional Court noted that the illegality of the applicants' detention had already been established by the Magistrate’s Court of Ili (Oblast) Gaziantep, therefore the possibility of obtaining compensation would be an effective remedy for the applicants, the decision of the magistrate’s court concerned only the illegality of the governor’s decision to conclude the applicants 'detention and were not affected by the applicants' detention during their stay in Istanbul. The issue of the lawfulness of the applicants 'detention for the specified three months has never been the subject of an effective judicial review, which also reduced the applicants' chances of receiving any compensation for that period.

(d) Conclusion. Both the Istanbul International Court of Justice and the Turkish Constitutional Court did not deal effectively and urgently with complaints about the unlawful detention of the applicants. The mechanism established by Law No. 6458, apparently, turned out to be completely ineffective when the detention of a minor (in the context of migration) was not based on an administrative decision. At the same time, the conclusion on this item should be considered in the light of the special circumstances of the present case, and it should not be recognized as casting doubt on the overall effectiveness of the judicial review mechanisms provided for by Law No. 6458 or of filing an individual complaint with the Turkish Constitutional Court.


RESOLUTION


In the case there was a violation of the requirements of paragraph 4 of Article 5 of the Convention (adopted unanimously).

Regarding compliance with article 13 of the Convention. The applicants' conditions of detention were in violation of Article 3 of the Convention, therefore their complaint is “liable to be proved” for the purposes of Article 13 of the Convention.

The Turkish Constitutional Court did not examine the admissibility and merits of the applicants' complaints during the period they were detained, which negatively affected the effectiveness of the individual complaint mechanism as a remedy in this particular case. Given the obvious vulnerable situation of the three juvenile applicants and the problems that had occurred at the Kumkapi Center for Displaced Persons or the Kumkapi region, which were well known to the international bodies and authorities of the respondent State, as well as the fact that the Turkish Constitutional Court had clearly acted as the first court court in the circumstances of the present case, the indicated court could have been expected to show the necessary thoroughness when examining the applicants' complaints of a violation of Article 3 of the Convention.

As soon as the applicants were released from custody, the Turkish Constitutional Court ruled that “in the case of the release of a foreigner from custody, an effective legal mechanism is a claim for full compensation for damage”, which was to be brought before the administrative court, which had the right to award the victims with the necessary compensation. For this reason, the Turkish Constitutional Court declared the applicants ’complaint of a violation of Article 3 of the Convention inadmissible on the merits for failure to exhaust domestic remedies. While compensatory remedies may provide sufficient redress to persons released from custody, the applicants were detained at the time of the complaint to the Turkish Constitutional Court. Consequently, a compensatory remedy available only after release from custody could not provide them with an effective remedy in respect of their specific complaints of violation of Article 3 of the Convention.

The mechanism for submitting individual complaints to the Turkish Constitutional Court was found to be ineffective in relation to the applicants' complaints about the conditions of detention at the Kumkapi Ilya (region) displaced persons center. Furthermore, the Turkish authorities did not offer any other legal remedies, with the exception of compensation, that could provide the applicants with an opportunity to receive sufficient redress in the relevant period by immediately ending the violation of the applicants' rights guaranteed by Article 3 of the Convention.


RESOLUTION


In the case there was a violation of the requirements of Article 13 of the Convention (adopted unanimously).

The Court also unanimously found a violation of Article 3 of the Convention in respect of the conditions of the applicants' detention at the Kumkapi and Gaziantep Centers for Displaced Persons (oblasts) and a violation of Article 5 § 1 of the Convention on account of the second and fourth applicants being detained in the absence of any formal decision on their detention.


COMPENSATION


In application of Article 41 of the Convention. The Court awarded EUR 2,250 to the first applicant and EUR 20,000 to the second and fourth applicants each in respect of non-pecuniary damage.

 

 

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