ECtHR – Musaev v. Turkey, Application No. 72754/11

The Court considered the complaint under Article 5§3 inadmissible as it noted that there was no evidence in the submissions to suggest that the applicant had been arrested or detained in accordance with the provisions of article 5§1 (c).

Regarding the alleged violations of Article 5§1, 2, 4 and 5, the Court first considered that there had been a violation of Article 5§1, as Turkish legislation lacks a clear legal provision establishing the procedure for ordering detention with a view to deportation.

While the Government maintained that the applicant had been informed about the removal procedures and his rights, no evidence was presented which showed that the applicant had been given reasons for his detention. The Court concluded that the applicant had not been notified of the reasons for his detention and, thus, the Turkish authorities had violated Article 5§2 of the Convention.

Considering that the Court had already established that the Turkish legal system did not provide persons in the applicant’s position with a remedy whereby they could obtain judicial review of the lawfulness of their detention, within the meaning of Article 5 § 4, and be awarded compensation for their unlawful detention as required under Article 5 § 5 of the Convention. In the absence of any submission by the Government of examples in which the domestic courts speedily examined requests and ordered the release of an asylum seeker on the grounds of the unlawfulness of his or her detention and awarded him or her compensation, the Court did not see any reason to depart from its findings of previous judgments  (Abdolkhani and Karimnia v. Turkey, Tehrani and Others v. Turkey, Dbouba v. Turkey and Keshmiri v. Turkey (no. 2)   The Court further concluded that there had been a  violation of Article 5§4 and 5.

Regarding the conditions of the applicant’s detention the ECtHR first declared inadmissible the complaints under Articles 3 and 13  as to the conditions of detention at the Yedikule Security Directorate and Fatih police station for non-compliance with the six-month rule set out in Article 35§1 of the Convention.

Regarding detention conditions of the applicant in Kumkapı Removal Centre, the applicant maintained that the domestic remedies were available in theory but not in practice. The Court referred to a comparable case (Yarashonen v. Turkey) where it found a violation of Article 13 of the Convention. In the absence of contrary submissions on the part of the Government, the Court found that there was no reason to depart from its findings in its previous jurisprudence and ruled that there has been a violation of Article 13 in conjunction with Article 3 due to the lack of an effective remedy by which the conditions of the applicant’s detention at the Kumkapı Removal Centre could be litigated.

Turning to Article 3, the Court underlinedthat, the State must ensure that a person is detained in conditions which are consistent with respect for human dignity and that the manner and method of executing the detention measure do not cause the individual to suffer distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.The Court reiterated that a lack of adequate personal space in the detention area weighs heavily as a factor to be taken into account. Referring to the Yarashonen case, the Court found a violation of Article 3 of the Convention on account of the material conditions of detention at Kumkapı Removal Centre, notably clear evidence of overcrowding and lack of access to outdoor exercise.