Detention conditions in a migrant center in Turkey for a mother and her three young children. Conviction by the Court.

JUDGMENT

G.B. and others v. Turkey 17.10.2019 (no. 4633/15)

see here 

SUMMARY

The case concerned the immigration detention of a mother and her three young children pending
their deportation from Turkey. They had been released after nearly four months following a series of
challenges about the lawfulness of their detention before the domestic courts.

The Court found that the Government had failed to disprove the applicants’ allegations that they
had been detained in overcrowded dormitories, had rarely been allowed to go outside for fresh air,
had constantly been exposed to cigarette smoke from other detainees and had not been given
suitable food for children. Such conditions were manifestly adverse even for adults, and had
therefore been all the more so for the three applicants who were vulnerable children.

It also held that even though a new law had come into force in 2014 which had completely
overhauled the legal framework on migration and asylum in Turkey, it had had been wholly
ineffective in the applicants’ case for them to complain about either the conditions or lawfulness of
their detention.

PROVISIONS

Article 3

Article 13

Article 5 §§ 1 and 4

PRINCIPAL FACTS

The applicants, G.B. and her three children, are Russian nationals who were born in 1986, 2008,
2012, and 2013 respectively. According to the latest information in the case file, they live in Baku
(Azerbaijan).

They entered Turkey on 17 October 2014. According to the official records, they were arrested the
next day attempting to illegally cross the border into Syria. The local governor’s office ordered G.B.’s
detention pending deportation and the whole family were transferred to Kumkapı Foreigners’
Removal Centre in Istanbul.

On 23 October 2014 the Istanbul governor’s office further ordered the deportation and detention of
G.B. The whole family was held at the Kumkapı Foreigners’ Removal Centre for the next three
months, before being transferred on 23 January 2015 to the Gaziantep Foreigners’ Removal Centre.

Following their transfer, the Gaziantep governor’s office issued a deportation and detention order
against all four applicants.

The applicants challenged the lawfulness of their detention at both removal centres, and requested
their release. They stressed that the conditions at the centres were particularly unsuitable for young
children and that the authorities had not considered any alternatives to detention, despite their
vulnerable situation.

The Istanbul Magistrate’s Court examined their requests with regard to their detention at Kumkapı.
In an initial decision of November 2014 it decided that it could not rule on the lawfulness of the
minor applicants’ detention at this centre because it found that there was no decision actually
ordering their placement there. It further found that their mother’s detention was lawful as she
posed a danger to public safety and had attempted to leave Turkey illegally. In four subsequent
decisions, the court similarly declared G.B.’s detention lawful, referring to the relevant legal
provisions under domestic law.

The Gaziantep Magistrates’ Court, on the other hand, in a decision of 5 February 2015 concluded
that the applicants’ detention at Gaziantep did not comply with law, and ordered their release. The
court found in particular that no explanation had been given as to why their detention was called for
and that an asylum request was still ongoing before the administrative courts. They were released
five days later.

On 15 December 2014, while still being held at Kumkapı, the applicants had also lodged an individual
application with the Constitutional Court about the conditions and unlawfulness of their detention
and the fact that it was impossible for them to raise those complaints under domestic law.

On 9 January 2015 the Constitutional Court dismissed their request for urgent measures, holding
that the conditions of their detention did not amount to an immediate and serious risk to their lives
or to their physical or mental integrity. That court then declared the case inadmissible in May 2018,
finding that the applicants had in the meantime been released following the decision by Gaziantep
Magistrates’ Court and that they could bring compensation proceedings in respect of complaints
concerning both the conditions and the unlawfulness of their detention before the administrative
courts.

THE DECISION OF THE COURT

Article 3 (conditions of detention)

The Court observed that reports by the CPT (the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment) and the National Human Rights Institution of
Turkey had corroborated the applicants’ allegations about their conditions of detention at the
Kumkapı Foreigners’ Removal Centre.

In contrast, the Government had failed to give evidence to refute the applicants’ allegations. It had
failed to prove its submission that the applicants had been accommodated in a separate living area
for families with access to a playground, while they had not disproved the allegations that the family
had rarely been allowed to go outside for fresh air, had constantly been exposed to cigarette smoke
from other detainees and had not been given food suitable for children. Indeed, the little
information it had provided, such as the size of the dormitories and the number of bunk beds in each
dormitory, could on its own lead the Court to draw alarming conclusions as to the severe lack of
personal space at Kumkapı.

The Court considered that the conditions of the applicants’ detention at Kumkapı, for three months
without knowing when exactly they would be released, had caused them distress which had
exceeded the unavoidable level of suffering inherent in detention and had reached the threshold of
severity for bringing the case within the scope of Article 3.

It stressed that it had already found that such conditions were manifestly adverse even for adults.
Such a situation had therefore been particularly unsuitable for the extremely vulnerable applicant
children and had been totally at odds with the widely recognised international principles on the
protection of children.

The Government had likewise failed to submit sufficient evidence to refute the applicants’
allegations with regard to the Gaziantep removal centre. It was not clear from the evidence it had
submitted, namely photographs of some of the rooms there, whether the applicants had actually
stayed in those rooms and, if so, with how many people. The photographs had even suggested that
the applicant children had been made to sleep on iron-frame bunk-beds with sharp edges, which
could be dangerous for children their age, and that they had not been provided with any indoor or
outdoor play areas.

The Court therefore concluded that there had been a violation of Article 3 as concerned the
conditions of detention at both the Kumkapı and Gaziantep removal centres.

Article 13 in conjunction with Article 3 (remedies to complain about conditions of detention)

The Court noted in particular that the Constitutional Court had not examined the admissibility and
merits of the applicants’ complaint while they were still being detained. A purely compensatory
remedy available after release, whether before the Constitutional Court or elsewhere, could not
therefore have been effective in respect of the applicants’ complaints. Moreover, a legal mechanism
with the capacity to provide a more urgent reaction had been called for in circumstances where
children were being detained in adverse conditions.

The Court therefore found that although the individual-application procedure before the
Constitutional Court had in principle offered the possibility of redress, it had not functioned
effectively in the applicants’ case.

Nor had the Government suggested any other remedies available at the time that could have rapidly
put an end to the ongoing violation of the applicants’ rights under Article 3.

The Court also pointed out that even though a new law (Law no. 6548) had come into force in 2014
which had completely overhauled the legal framework on migration and asylum in Turkey, neither
that law nor the regulations to implement it had designated any specific remedies for complaints
about conditions of detention.

There had accordingly been a violation of Article 13 in conjunction with Article 3 as concerned the
lack of effective remedies for the applicants to complain about the conditions of detention at the
Kumkapı removal centre.

Given that finding, the Court held that there was no need to examine the applicants’ complaints
under Article 13 in conjunction with Article 3 about the conditions of their detention at the
Gaziantep removal centre.

Article 5 §§ 1 and 4 (lawfulness of detention and judicial review mechanism)

It was not in dispute that the applicant children had been deprived of their liberty from 18 October
2014 to 10 February 2015. However, the only detention order issued against them had been on 23
January 2015 following their transfer from Istanbul to Gaziantep. The other detention orders had
only concerned their mother, without mentioning them in any way.

The Court therefore concluded that the applicant children had not been detained in accordance with
the procedure prescribed by Law no. 6458, at least not between 18 October 2014 and 23 January
2015, in violation of Article 5 § 1 of the Convention.

It also held that the applicants’ detention between 5 and 10 February 2015, despite an order for
their release and without any satisfactory explanation from the Government for such a delay, had
been arbitrary, in further violation of Article 5 § 1.

The Court then went on to examine the judicial mechanism available to the applicants to have the
lawfulness of their detention reviewed. It reiterated that such judicial-review proceedings were
particularly urgent in the case of the applicants, a mother with her three very young children.
The applicants had been able to challenge their detention on six occasions before magistrates’
courts and to lodge an individual application with the Constitutional Court, ultimately obtaining their
release. However, the applicant children had been left in legal limbo for three months as the
Istanbul Magistrates Court had not actually ruled on the lawfulness of their detention and had only
examined the lawfulness of their mother’s detention in its subsequent decisions. The decisions
concerning the mother had moreover not engaged in any way in a review, simply repeatedly
declaring her detention lawful using the same brief formula, without taking into consideration her
arguments at all.

In those circumstances, namely where a review had not been undertaken at all or had been devoid
of any effect, it had been up to the Constitutional Court to carry out a very prompt review. The Court
noted, however, that the applicants had remained in administrative detention for some 50 days
after lodging their application with the Constitutional Court, during which period that court had
taken no action as regards their complaints.

Having regard to the particular vigilance required by the special circumstances of the applicants, the
Court concluded that both the Istanbul Magistrates’ Court and the Constitutional Court had failed to
conduct a speedy and effective review of the lawfulness of the applicants’ detention, in violation of
Article 5 § 4.

Although the review mechanism under Law no. 6458 had been ineffective in the applicants’ case, the
Court noted that that should not cast doubt on the general effectiveness of the judicial review
mechanism under that law or that of the individual application procedure before the Constitutional
Court.

Other complaints

Given the findings above, the Court held that there was no need to examine the applicants’
remaining complaints under Article 5 §§ 2 and 5 or Article 8, alone or in conjunction with Article 13.

Article 41 (just satisfaction)

The Court held that Turkey was to pay G.B. 2,250 euros (EUR) and EUR 20,000 to each of her children
in respect of non-pecuniary damage, and EUR 5,500 in respect of costs and expenses.


ECHRCaseLaw

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