CEDH · CASELAW;COMMUNICATEDCASES;ENG — 26 mars 2024

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 15 April 2024   FIFTH SECTION Application no. 32/21 M.H. against Türkiye lodged on 15 December 2020 communicated on 26 March 2024 SUBJECT MATTER OF THE CASE The applicant is an Iraqi national who entered Türkiye on 10 August 2014 via regular means. The applicant was placed under custody on 5 January 2016. On 7   January 2016 he was detained pending deportation in the Kumkapı Foreigners’ Removal Centre. On 10 March 2016 the Istanbul First Administrative Court annulled the deportation order issued against the applicant. He was released from the Kumkapı Foreigners’ Removal Centre on 20 April 2016. On 18 April 2016 the applicant lodged an individual application with the Constitutional Court to complain mainly of the conditions and unlawfulness of his detention in the Kumkapı Foreigners’ Removal Centre. The Constitutional Court decided on 30 March 2020, that the applicant’s complaints were inadmissible for failure to exhaust the action for a full remedy ( tam yargı davası ) before administrative courts, which could in theory provide an effective remedy – in the form of compensation – following release from detention. Relying on Articles 3, 5 §§ 1, 4 and 13 in conjunction with Article 3 of the Convention, the applicant complains about the material conditions and unlawfulness of his detention in the Kumkapı Removal Centre as well as the absence of any   effective domestic remedies to raise those complaints. He further argued that his detention did not comply with the safeguards provided for under Article 5 §§ 2 and 5 of the Convention. QUESTIONS TO THE PARTIES 1.     Did the applicant duly exhaust the remedies available in domestic law in respect of his complaint under Articles 3 and 5, as required by Article   35   §   1 of the Convention?   2.     Were the conditions of the applicant’s detention at the Kumkapı Foreigners’ Removal Centre compatible with Article 3 of the Convention (see, mutatis mutandis , Yarashonen v. Turkey , no. 72710/11, §§   51-91, 24   June 2014; Erkenov v. Turkey , no. 18152/11, §§ 26-42, 6   September 2016; and G.B. and Others v. Turkey , no. 4633/15, §§ 99-117, 17   October 2019)?   3.     Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3 of the Convention, as required by Article 13 of the Convention? In this connection, is the action for a full remedy ( tam yargı davası ) before administrative courts capable of providing redress in respect of the applicant’s complaint under Article 3 of the Convention?   4. Did the applicant’s detention comply with the requirements of Article   5   §   1 (f) of the Convention (see,   A. and Others v. the United Kingdom [GC], no.   3455/05, § 164, ECHR 2009; Khlaifia and Others v. Italy [GC], no.   16483/12, § 90, 15 December 2016; Yoh-Ekale Mwanje v.   Belgium , no.   10486/10, §§ 117-19, 20 December 2011; and Amie and Others v.   Bulgaria , no. 58149/08, § 72, 12 February 2013)? In particular, was there a realistic prospect of the applicant’s deportation to his country of origin or to a safe third country, especially after the annulment of the deportation order by the Istanbul First Administrative Court’s decision of 10 March 2016? Have the removal proceedings been conducted with the requisite diligence (compare, inter alia , Azimov v. Russia , no. 67474/11, § 172, 18 April 2013, and   Al Husin v. Bosnia and Herzegovina (no. 2) , no. 10112/16, §§   96-98, 25   June 2019)?   5.     Was the applicant informed promptly of the reasons for his detention, as required by Article 5 § 2 of the Convention (see, inter alia , Khlaifia and Others , cited above, §§ 115-16)?   6.     Did the applicant have at his disposal an effective remedy by which he could challenge the lawfulness of his deprivation of liberty, as required by Article   5 § 4 of the Convention (see, for example, A.M. v.   France , no.   56324/13, §§ 40-41, 12 July 2016, and G.B. and Others , cited above, §§   163-69)? In this connection, is the action for a full remedy ( tam yargı davası ) before administrative courts capable of providing redress within the meaning of Article 5 § 4 in respect of the applicant’s complaint for the period following his release from detention? 7.     Did the applicant have an effective and enforceable right to compensation for his detention in alleged contravention of Article 5 §§ 1, 2 and   4 as required by Article 5 § 5 of the Convention ( see, for example, Vachev v.   Bulgaria , no. 42987/98, § 78, ECHR 2004-VIII (extracts))?   The Government are invited to submit information and supporting documents indicating the conditions of detention at the Kumkapı Foreigners’ Removal Centre at the time of the events. The documents should demonstrate in particular the capacity of the rooms and the number of occupants held in them during the applicant’s stay, the opportunities for access to fresh air and daily exercise and the hygiene conditions. They should also indicate whether the conditions at the centre were suitable for elderly persons.   The Government are also invited to submit sample decisions, delivered in respect of administrative detentions pertaining to the period preceding the entry into force of Law no. 6458, where the administrative courts have examined – within the context of an action for full remedy – the merits of complaints lodged by foreigners concerning (i) the material conditions of their detention, (ii) the unlawfulness of their administrative detention, (iii)   the absence of any effective remedies to challenge the lawfulness of the detention, and (iv) the lack of prompt information on the reasons for deprivation of liberty. The Government are requested to include in their submissions decisions where the administrative courts have applied the time ‑ limit rules for lodging an administrative action flexibly as suggested by the Constitutional Court.