ECtHR – Dbouba v. Turkey, Application No. 15916/09, 13 October 2010

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Country of Applicant: 
Tunisia
Date of Decision: 
13-10-2010
Citation: 
Dbouba v Turkey, Application No. 15916/09 [2010] ECtHR
Court Name: 
European Court of Human Rights (Second section)
Headnote: 
The applicant, a Tunisian national who has been recognised as a refugee by the UNHCR, faced deportation by Turkey to Tunisia, where he risks ill-treatment and the death penalty. He has not had access to an effective remedy with regards to this, nor has he been allowed to challenge the lawfulness of his detention. By virtue of the applicant’s proposed return to Tunisia the Court found a violation of Article 3 ECHR in conjunction with Article 13. The Court also found a violation of articles 5(1), 5(2), 5(4) and 5(5) ECHR.
 
Facts: 
The applicant, Mr. Dbouba, is a Tunisian national who became an active sympathiser in 1986 of Ennahda, an organisation illegal in Tunisia. As a result of persecution by the security forces in relation to this, he left Tunisia in 1990 and arrived in Turkey in 1996, where he lived without a residence permit until 2007. In 2007 the applicant was arrested by Anti-Terrorist police officers and charged with membership of Al-Qaeda.
 
The Istanbul Assize Court held the first hearing of the case on 14 January 2008 where it decided to release him from pre-trial detention but banned him from leaving the country. The proceedings against the applicant are still pending. The applicant maintained that his application for asylum had been rejected in 1996, that he had not been involved with Al-Qaeda, and that he faced ill-treatment and the death penalty should he return to Tunisia. The applicant was then placed in a Foreigners’ Admission and Accommodation Centre on 25 January 2008.
 
On 5 March 2008 the department for foreigners, borders and asylum orderd the applicant’s deportation from Turkey but this was prevented by the decision of the Assize Court to ban him from leaving the country. The UNHCR recognised the applicant as a refugee on 3 December 2008. On 23 December 2008 the applicant applied for temporary asylum in Turkey. He was interviewed by Turkish officials regarding this in November 2009 but was never informed of the outcome of the interview. On 22 January 2009 the Assize Court had set aside its decision to ban the applicant from leaving the country and so the procedure for his deportation was re-initiated.
 
This was suspended by the application of a rule 39 measure.
 
Decision & Reasoning: 

The Court rejected the Government’s submission under Article 35(1) ECHR that the applicant had failed to exhaust the domestic remedies avalailable to him, as it had already examined and dismissed an identical objection by the Government in the case of Abdolkhani and Karimnia.

Article 3 ECHR

The Court found that the Turkish authorities had given no consideration to the applicant’s claim regarding the risks of persecution he faced in Tunisia, contrary to the absolute nature of Article 3 ECHR. On the basis of its findings in the case of Saadi v. Italy, themselves based on the reports of Amnesty International and Human Rights Watch on Tunisia, and of the UNHCR’s assessment and conclusion on the applicant’s situation that he risked persecution in Tunisia which must be given due weight by the Court, the Court held that there would be a violation of Article 3 ECHR, should the applicant be deported to Tunisia.

Article 13 ECHR

The Court accepted the applicant’s submission under Article 13 ECHR and concluded that the applicant was not afforded an effective and accessible remedy, and so that there had been a violation of article 13, on the basis that:

- it found that the national authorities had not given meaningful examination to the applicant’s allegations of the risks of ill-treatment and death penalty he faced in Tunisia

- it rejected the Government’s submission that the applicant had been informed on 25 January 2005 of its decision to reject his application for temporary asylum and of the deportation procedure, since the Government failed to show that it had served the applicant a written decision

- the Government failed to inform the applicant of the re-initiation of the procedure of deportation against him on 22 January 2009.

Article 5(1) ECHR

The Court concluded that there had been a violation of Article 5(1) ECHR, on the basis of its conclusion in the case of Abdolkhani and Karimnia where the same grievance was examined: the Court had found that the placement of the applicants in the Foreigners’ Admission and Accommodation Centre constituted an unlawful deprivation of liberty in the absence of clear legal provisions establishing the procedure for ordering and extending detention with a view to deportation. As such, in this case the detention of the applicant in the Foreigners’ Admission and Accommodation Centre was found to be unlawful by the Court and to constitute a violation of Article 5(1).

Article 5(2) ECHR

The Court concluded that there had been a violation of Article 5(2), as it found that the reasons for the applicant’s detention from 25 January 2008 onwards were never communicated to him, on the basis of the absence of any documents in the case file to show that the applicant was formally notified of the grounds for his detention.

Article 5(4) and 5(5) ECHR

The Court concluded that there had been a violation of Article 5(4), as it found that the applicant had not been able to challenge the lawfulness of his detention from 25 January 2008 onwards, on the basis that the Government did not make any submission demonstrating that the applicant had had at his disposal any procedure by which the lawfulness of his detention could have been examined by a court and which allowed him to claim compensation for the violation of his rights under Article 5(1), nor provided any example where administrative courts speedily examined and ordered the release of an asylum seeker on grounds of unlawfulness and granted compensation for his or her unlawful detention. The applicant’s right of appeal was, therefore, deprived of all effective substance.

Article 3 ECHR  – with regards to the applicant’s detention

The Court rejected the applicant’s complaint that the conditions of his detention in the Kocaeli Police headquarters were poor, in accordance with Article 35 (1) and 35(4) ECHR, as this part of the application was submitted too long after the detention.

The Court further rejected the applicant’s complaint that the conditions of his detention in the Foreigners’ Admission and Accommodation Centre were poor, on the basis that it has already examined almost identical allegations – for example in Z.N.S. v. Turkey – and found that the material conditions in that centre were not so severe as to bring them within the scope of Article 3 ECHR.

Outcome: 

Application partly successful.

The Court unanimously found that there had been a violation of Article 3 ECHR in conjunction with Article 13, as well as a violation of Articles 5(1), 5(2), 5(4) and 5(5) ECHR. However there had not been a violation of article 3 ECHR within the context of the applicant’s detention.

The Court awarded the applicant damages of EUR 11,000 for non-pecuniary amage and EUR 4,000 for costs and expenses, and further held that Turkey must release the applicant at the earliest date possible.

Observations/Comments: 

This case summary was written by Emily Claire Procter, GDL student at BPP University.

 
Other sources cited: 
• Amnesty International Report 2006 – Tunisia, 23 May 2006
• Human Rights Watch World Report 2007 – Tunisia, 11 January 2007
Authentic Language: 
English
State Party: 
Turkey
National / Other Legislative Provisions: 
Turkey - Turkish Constitution - Article 125
Turkey – Law related to residence and travels of foreign subjects (Law no. 5683) – articles 19 and 23
Turkey – Passport Law (Law no. 5682) – article 4