SECOND SECTION

DECISION

Application no . 1009/16 Reda BOUDRAA against Turkey

The European Court of Human Rights ( Second Section ), sitting on 28 June 2016 as a Chamber composed of:

Julia Laffranque , President, Işıl Karakaş , Nebojša Vučinić , Valeriu Griţco , Ksenija Turković , Jon Fridrik Kjølbro , Stéphanie Mourou-Vikström , judges, and Stanley Naismith , Section Registrar .

Having regard to the above application lodged on 23 December 2015 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Reda Boudraa , is an Algerian national who was born in 1974 and lives in Yalova . He is represented before the Court by Mr A. Y ı lmaz, Ms S.N. Y ı lmaz and Mr F. Amca , lawyers practising in Istanbul .

The facts of the case, as submitted by the applicant, may be summarised as follows.

A. The applicant ’ s detention and the asylum procedure

The applicant lived in Turkey between 2001 and 2003, when he met his wife and got married. The applicant and his wife have four children. In 2003 the applicant was deported to Algeria by the Turkish authorities. Between 2003 and 2006 he was imprisoned in Algeria, where he alleges he was subjected to various forms of ill-treatment.

The applicant and several other individuals founded the Rachad Movement in Algeria, a political organisation which opposes th at country ’ s government through non-violent means. After the protest movement known as the Arab Spring began in 2010 , he was taken into police custody in Algeria and he alleges he was subjected to ill-treatment there .

On an unspecified date he fled from Algeria and went to Syria , where he worked as a teacher. Subsequently, in August 2013, he arrived in Yalova , Turkey, where his wife and children lived.

On 3 November 2013 police officers came to the applicant ’ s flat because his neighbours had complained about his children making too much noise. He was taken into police custody as he did not have a passport. On the same day, the applicant was placed in a detention room at Yalova police headquarters.

The applicant applied for asylum, claiming that he would be exposed to a risk of ill-treatment in Algeria on account of his political opinions if he was returned to his country of origin. His request was rejected by the Ministry of the Interior and he was served with that decision on 5 December 2013.

On 17 December 2013 the applicant applied to the Ankara office of the United Nations High Commissioner for Refugees (“UNHCR”) and asked to be recognised as a refugee.

On 23 December 2013 the applicant ’ s lawyer lodged an objection with the Ministry of the Interior against the decision of 5 December 2013. The lawyer claimed that the applicant had been told to file an objection within 72 hours after the notification of the refusal decision in breach of the domestic law. Noting that the applicant had not been assisted by a lawyer during his first interview, the applicant ’ s lawyer requested an additional interview during which he would also be present. He lastly requested that the national authorities await the outcome of the application to the UNHCR and that they grant the applicant, an asylum seeker, a residence permit.

On 25 December 2013 his objection to the refusal decision was rejected by the Ministry of the Interior and the applicant was informed that he would be deported to Algeria.

B . The conditions of detention at Yalova police headquarters

Between 3 November 2013 and 7 January 2014 the applicant was detained at Yalova police headquarters. The detention room in which he was kept was an ordinary police detention facility where arrestees were held for short periods (generally one day). During his detention, many people were detained in the room, at times as many as 10-12 people. The room was 10 sq. m and there was no heating or ventilation and no bed. He was provided with a mattress and a blanket and he slept on the floor. The applicant was never taken out of the room, which did not receive any natural light. As he suffered from asthma, anaemia and back problems, he needed medical assistance. However, he was taken to hospital on only one occasion. The facility had no shower and therefore he had to wash himself in the toilets.

C. Application to the Constitutional Court

On 27 December 2013 the applicant lodged an individual application with the Constitutional Court. The applicant alleged that he would be exposed to a risk of ill-treatment if returned to Algeria, noting that there were criminal proceedings pending against him in his country of origin and that he might be sentenced to death. He also noted that the Ministry of the Interior had not conducted a thorough examination of his asylum request and that he had been deprived of his procedural rights in the asylum procedure. The applicant further stated that his conditions of detention at Yalova police headquarters constituted ill-treatment, and that his detention was unlawful and breached his right to private and family life. He also alleged that he did not have an effective remedy whereby he could challenge the removal order as well as the lawfulness and the conditions of his detention or claim compensation for unlawful detention. The applicant requested that the Constitutional Court apply an interim measure and suspend his removal to Algeria.

On 30 December 2013 the Constitutional Court found the applicant ’ s allegations of a risk of ill-treatment on expulsion to be substantiated and decided to suspend his deportation to Algeria pending the outcome of the proceedings before it.

The applicant was therefore released from Yalova police headquarters on 7 January 2014.

On 21 January 2014 the Constitutional Court rendered its decision on the admissibility and merits of the applicant ’ s case. In respect of the applicant ’ s allegations that he would be exposed to a risk of ill-treatment if returned to Algeria and that he did not have an effective remedy whereby he could challenge the removal order, the court first noted that the applicant had been released following the suspension of the deportation procedure by the decision of 30 December 2013 and that he had been granted a residence permit which was valid until 6 July 2014. The Constitutional Court further noted that although at the time of the application to the Constitutional Court, there was no remedy with automatic suspensive effect in Turkish law, after the entry into force of the Foreigners and International Protection Act (Law no. 6458) on 11 April 2014, an application to the administrative courts had automatic suspensive effect. According to the court, if a new deportation order was issued in respect of the applicant, he could use the remedy for which Law no. 6458 provided. The court therefore found the applicant ’ s complaint that there was no effective remedy inadmissible as being manifestly ill-founded. Since there was no pending deportation order in respect of the applicant and since he could apply to the administrative courts if a new order was issued, the court found that the applicant ’ s allegations of a risk of ill ‑ treatment if removed to Algeria were also manifestly ill ‑ founded.

As regards the applicant ’ s complaint that the conditions of his detention at Yalova police headquarters had constituted ill-treatment, the Constitutional Court noted that he had complained that his health had worsened as a result of the conditions in which he had been detained. Since the applicant had been provided with medical assistance when he had fallen ill in detention, the Constitutional Court found that the administrative authorities had taken the necessary measures to protect the applicant ’ s physical and psychological health. As a result, the court concluded that the treatment of the applicant had not attained the minimum level of severity to be described as inhuman or degrading treatment.

On the other hand, the Constitutional Court found a violation of Article 19 §§ 1 and 8 of the Constitution on account of the unlawfulness of the applicant ’ s detention and of the absence of an effective remedy whereby he could challenge that detention order.

On 24 June 2015 the Constitutional Court ’ s decision was served on the applicant ’ s representative.

COMPLAINTS

The applicant complained under Article 3 of the Convention about the conditions of his detention at Yalova police headquarters.

The applicant further submitted that the administrative authorities had ordered his removal to Algeria without a proper assessment of his asylum request and that the Constitutional Court had not examined this failure, merely noting the entry into force of Law no. 6458, despite the fact that his deportation had been ordered before the entry into force of the new law. The applicant alleged that both the administrative authorities ’ failure to carry out a risk assessment and the Constitutional Court ’ s failure to examine the circumstances in which his deportation had been ordered constituted a violation of Article 3 in its procedural aspect.

THE LAW

1. The applicant complained that the conditions of his detention at Yalova police headquarters had constituted treatment in breach of Article 3 of the Convention.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2. The applicant argued that the administrative authorities ’ failure to carry out a risk assessment before ordering his deportation and the Constitutional Court ’ s failure to examine the circumstances in which his deportation had been ordered was in violation of Article 3 under its procedural limb.

The Court observes that on 25 December 2013 the applicant was informed that he would be deported to Algeria. Yet, subsequent to the suspension of the deportation procedure by the Constitutional Court on 30 December 2013, the applicant was released and granted a residence permit. According to the applicant ’ s submissions, currently there is no deportation order with legal effect issued in respect of the applicant. In the absence of such a deportation order, the Court finds that the applicant does not currently face an imminent risk of removal from Turkey. The Court further finds that in the event of a fresh deportation order in the future, it would be open to the applicant to resort to a judicial procedure in which his claim of possible ill-treatment in the country of destination would be assessed domestically (compare Asalya v. Turkey , no. 43875/09 , § 89, 15 April 2014 ) .

In these circumstances, the Court considers that the applicant cannot be considered to be a victim in relation to his complaints under the procedural limb of Article 3, within the meaning of Article 34 of the Convention (compare, for example, ibid . , § 90, and A.D. and Others v. Turkey , no. 22681/09, § 88, 22 July 2014) . It follows that this part of the application is incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint concerning the conditions of his detention at Yalova police headquarters ;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 21 July 2016 .

             Stanley Naismith Julia Laffranque Registrar President