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

Printer-friendly versionPrinter-friendly version
Country of Applicant: 
Uzbekistan
Date of Decision: 
21-10-2014
Citation: 
Musaev v. Turkey (Application No. 72754/11), 21 October 2014
Court Name: 
European Court of Human Rights – Second Section
Headnote: 

The European Court of Human Rights has held Turkey to be in violation of the applicant’s right to liberty as well as material reception conditions during his detention in Kumkapı Removal Centre. The Court further held that the applicant had not benefited from an effective remedy by which to complain of the detention conditions.

Facts: 

The applicant is an Uzbek national who prior to lodging an asylum claim with the Turkish Ministry of Interior had been detained in the Yedikule Security Directorate then in the Fatih police station, in the context of an investigation into a murder. Further to his witness statement he was released but continued to be detained and was transferred to the Kumkapı Removal Centre with a view to being deported. He then claimed asylum and was granted a temporary residence permit pending the examination of a refugee application with the United High Commissioner for Refugees and an asylum application with the Turkish Ministry of Interior, both of which are still ongoing.

Relying upon Article 5 § 1 and 2 of the Convention, the applicant maintained that he was held in detention for a total period of twenty seven days without there being a legal basis for his detention nor an explanation as to the reasons for his detention. He submitted under Article 5 § 3 that he was not brought before a judge following his detention in accordance with Article 5 § 1 (c).

The applicant further argued under Article 5 § 4 and 5 of the Convention that he did not have access to any domestic remedy to request his release, challenge the lawfulness of his detention or claim compensation for the unlawful deprivation of liberty.

Invoking Article 13 of the Convention, the applicant finally asserted that there existed no effective remedy in domestic law where he could have his allegations under Articles 3 and 5 examined.

Lastly, the applicant complained under Article 3 of the Convention that the conditions of detention at the security Directorate, the police station and removal centre amounted to inhumane and degrading treatment. 

Decision & Reasoning: 

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.

Outcome: 

Violation of Article 5§ 1,2, 4 and 5

Violation of Article 3

Violation of Article 13 read in conjunction with Article 3

Non-pecuniary damage:

(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

Costs and expenses:

(ii)  EUR 3,758 (three thousand seven hundred and fifty-eight euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, less the EUR 850 (eight hundred and fifty euros) granted by way of legal aid;

Case Law Cited: 

ECtHR - Artimenco v. Romania, Application No. 12535/04 (UP)

ECtHR - Aden Ahmed v. Malta, Application No. 55352/12 (UP)

EctHR - Athary v. Turkey, Application No. 50372/09

ECtHR - Keshmiri v. Turkey (no. 2), Application No. 22426/10 (UP)

ECtHR - Dbouba v. Turkey, Application no. 15916/09 (UP)

ECtHR - Tehrani and Others v. Turkey, Applications Nos. 32940/08,41626/08 and 43616/08 (UP)

ECtHR - Yarashonen v. Turkey, Application No. 72710/11 (UP)

ECtHR - Karalevičius v Lithuania, Application no. 53254/99

ECtHR - Blečić v. Croatia [GC], Application No. 59532/00

ECtHR - Alver v Estonia, Application No. 64812/01

ECtHR - Ananyev et al. Russia, Application Nos. 42525/07 and 60800/08

ECtHR - Dougoz v. Greece, Application No. 40907/98

ECtHR - Kudla v Poland [GC], Application No. 30210/96

ECtHR - Abdolkhani and Karimnia v. Turkey, Application No. 30471/08

ECtHR - Shamayev v Georgia (April 2005) (Application no. 36378/02)
Authentic Language: 
English
State Party: 
Turkey
National / Other Legislative Provisions: 
Turkey - Turkish Constitution - Article 36
Turkey - Turkish Constitution - Article 125
Turkey - Turkish Administrative Procedure Act (Law no. 2577)
Turkey - Turkish Code of Obligations (Law no. 818)
Turkey - Turkish Code of Criminal Procedure (Law no. 5271)