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

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.