SECOND SECTION

DECISION

Application no . 60831/15 Z.K. and Others against Turkey

The European Court of Human Rights (Second Section), sitting on 7 November 2017 as a Committee composed of:

Julia Laffranque, President, Paul Lemmens, Valeriu Griţco, judges, and Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 9 December 2015,

Having deliberated, decides as follows:

THE FACTS

1. The applicants, Z.K., M.R., M.K. and I.K. are Russian nationals who were born in 1984, 1982, 2009 and 2012 respectively. They currently reside in Adana. The first and second applicants are the parents of the third and fourth applicants. The applicants are represented before the Court by A. Y ı lmaz, a lawyer practicing in Istanbul.

A. The circumstances of the case

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

1. The applicants ’ detention, the asylum procedure and the proceedings brought by the applicants

3. On 5 February 2015 the applicants, together with twenty-two other foreign nationals, arrived in Turkey from Syria. According to the official documents in the case file, they were arrested by Turkish gendarmerie forces on the Turkish-Syrian border because they had entered Turkish territory in an irregular fashion. On 6 February 2015 the applicants were placed in administrative detention at the foreigners ’ department of Kilis police headquarters until the next day.

4 . Between 7 February 2015 and 5 February 2016 the applicants were detained at the Adana Foreigners ’ Removal Centre and the Erzurum ( Aşkale) Foreigners ’ Removal Centre (hereinafter “the Aşkale Removal Centre) pending their deportation, as already ordered by the administrative authorities. The first and second applicants lodged several objections against the detention orders, challenging both the lawfulness and the conditions of their and their children ’ s detention. Their objections were each time dismissed by the Adana and Aşkale magistrate ’ s courts. The applicants also brought an action against the deportation orders.

5. On 11 February 2015 the applicants lodged applications for asylum in Turkey, claiming that they would be in danger of persecution in Russia on account of their religious identity if removed to that country. The first and second applicants contended that they had been subjected to persecution in Dagestan before their departure to Syria because they were Muslims. They also stated that they had gone to Syria because they considered that in the region controlled by the Islamic State of Iraq and Al-Sham (ISIS) they would be able to live freely. However, as they had then realised that there was a war going on and since the first applicant had not wished to participate in that war they had left Syria and travelled to Turkey together with other families from Dagestan.

6. On 2 March 2015 the applicants ’ asylum application was rejected. The first applicant lodged an appeal with the Ankara Administrative Court against that decision.

7. On 18 December 2015 the Ankara Administrative Court dismissed the first applicant ’ s appeal. The Administrative Court considered that the first applicant had failed to substantiate his assertion that he would be persecuted on the basis of his race, religion, nationality, membership of a particular social group or his political opinions. The court further noted that the applicant was considered to pose a danger to security within Turkey by that country ’ s authorities. Having regard to that consideration and in the light of Articles 1F and 33 of the 1951 Geneva Convention relating to the Status of Refugees and of the aim of maintaining international peace and security stipulated in the United Nations Charter, the court concluded that the refusal to grant international protection to the first applicant had been lawful.

8 . In the meantime, on 18 November 2015 the Adana Administrative Court rejected, on procedural grounds, the appeal lodged by the first and second applicants seeking the annulment of the deportation orders.

2. The conditions of detention at the Adana and A ş kale Foreigners ’ Removal Centres

9. In both the Adana and A ş kale Foreigners ’ Removal Centres the applicants were prevented from having communication with the outside world. They were not authorised to use mobile phones or to have meetings with their lawyers in the A ş kale Centre. In particular, on 26 November 2015 when he went to the A ş kale Removal Centre and asked to be allowed to meet his clients, the applicants ’ representative before the Court was informed, by means of an official document, that on account of the insufficiency of resources at the A ş kale Centre, he could not meet his clients on that day but that he would be informed in due course of the date on which he could hold a meeting with his clients. The applicants ’ representative before the Court was not able to meet his clients until the date of the lodging of the present application.

10. According to the applicants, the Foreigners ’ Removal Centres were not sufficiently heated and ventilated and they were not authorised to take outdoor exercise. Moreover, the second applicant was pregnant and the physical conditions were not suitable for a pregnant woman. The applicants also complain of the lack of an area and facilities for children to play. The quality and quantity of the food provided was also poor. In particular, it did not meet the nutritional needs of the children and the second applicant. Nor were the applicants provided with medical assistance, despite the fact that the third and fourth applicants were ill and that the second applicant was pregnant.

B. Procedure before the Court

11. On 9 December 2015, when the application was lodged, the applicants ’ representative requested that the Court adopt an interim measure under Rule 39 of the Rules of Court aimed at securing the applicants ’ release from the A ş kale Foreigners ’ Removal Centre or for their detention at another Foreigners ’ Removal Centre in conditions compatible with the requirements of Article 3 of the Convention.

12. On 10 December 2015 the Court (the duty Judge) decided, in the interests of the parties and the proper conduct of the proceedings before it, to grant the application of Rule 39 until 14 January 2016 and in that respect, to indicate to the Government, under that provision, to take the necessary measures to ensure that the detention conditions of the applicants are compatible with Article 3 of the Convention. The Government were further requested to inform the Court as to the exact date on which the applicants had been brought to the A ş kale Foreigners ’ Removal Centre and to describe the conditions in which the applicants had been held since the beginning of their detention, with particular reference to the young children (such as the material conditions, activities, and facilities that were afforded them) . The Court furthermore decided to give priority to the application, pursuant to Rule 41 of the Rules of Court.

13. On 7 January 2016 the respondent Government made submissions as regards the conditions of detention at the A ş kale Foreigners ’ Removal Centre. They also submitted a number of photographs of the A ş kale Centre in support of their replies.

14. The Government further claimed that before applying to the Court the applicants should have challenged the lawfulness and conditions of their detention before the Constitutional Court. Referring to the decision of the Constitutional Court in application no. 2013/9673 (see paragraphs 19-22 below), the Government noted that the Constitutional Court had found that that applicant ’ s detention had been unlawful and that he had not had an effective remedy to challenge the lawfulness of his detention.

15. On 13 January 2016 the duty judge decided to extend the interim measure granted on 10 December 2015 until further notice and to indicate to the respondent Government that they should take the necessary measures to ensure that the detention conditions of the applicants were compatible with Article 3 of the Convention.

16 . On 11 February 2016 the applicants ’ representative informed the Court that on 5 February 2016 the applicants had been released from the A ş kale Foreigners ’ Removal Centre, pursuant to section 57 of Law no. 6458, given that one year (the maximum period of administrative detention in respect of foreign nationals) had elapsed since their initial detention.

17 . On 15 June 2016 the Acting President of the Section reconsidered the application in the light of the information provided by the applicants ’ representative on 11 February 2016 and decided, in view of that information, to lift the interim measure previously indicated on 13 January 2016 under Rule 39 of the Rules of Court and to discontinue the application of Rule 41 of the Rules of Court.

C. Relevant domestic law and practice

1. Relevant domestic law

18. The relevant domestic law regarding the individual application to the Constitutional Court can be found in Uzun v. Turkey ((dec.), no. 10755/13, §§ 7-27, 30 April 2013).

2. The Constitutional Court ’ s decisions

a. Decision dated 21 January 2015

19 . On 21 January 2015 the Constitutional Court rendered a decision in an individual application brought before it by Mr R.B., an Algerian national, on 27 December 2013 (application no. 2013/9673) . Mr R.B. complained, inter alia , of (i) the allegedly poor conditions of his detention at Yalova police headquarters, where he had been detained pending his deportation, between 3 November 2013 and 7 January 2014 , (ii) the alleged absence of effective remedies by which to raise his allegations concerning the conditions of detention, (iii) the alleged unlawfulness of his detention and (iv) the alleged absence of an effective remedy by which to challenge the lawfulness of his detention.

20 . As regards Mr R.B. ’ 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 for it to be described as inhuman or degrading treatment.

21. The Constitutional Court lastly 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 have challenged the detention order, r eferring to the Court ’ s judgment of Abdolkhani and Karimnia v. Turkey (no. 30471/08 , 22 September 2009 ) . The court noted that there had been no legal basis for the applicant ’ s detention between 3 November 2013 and 7 January 2014 and that he had had no remedy at his disposal whereby he could have challenged the lawfulness of his detention.

22 . The Constitutional Court awarded Mr R.B. 5,000 Turkish liras (TRY – approximately 1,850 euros (EUR)) as compensation for non-pecuniary damage he had suffered as a result of the violations of his aforementioned rights.

b. Decision dated 11 November 2015

23. On 17 December 2015 the Constitutional Court ’ s decision in respect of application no . 2014/13044 was published in the Official Gazette. The individual application in question was brought before the Constitutional Court by Mr A. Y ı lmaz on behalf of Mr K.A., a Syrian national, by means of three application forms dated 11 August and 5 December 2014 and 5 February 2015. Mr K.A. complained about his threatened deportation to Syria, the allegedly poor conditions of his detention at the Kumkapı Foreigners ’ Removal Centre, the alleged absence of an effective remedy whereby he could have raised his allegations concerning the conditions of detention, the alleged unlawfulness of his detention, the alleged non ‑ communication to him of the reasons for his detention, and the alleged absence of an effective remedy by which to challenge the lawfulness of his detention.

24. Mr K.A. was placed in administrative detention at the Kumkapı Foreigners ’ Removal Centre on 25 April 2014. A detention order was issued on 28 April 2014 for a period of six months, pending his deportation. Proceedings that he brought before the Istanbul Magistrate ’ s Court and the Istanbul Administrative Court with a view to challenging the detention and deportation orders and to complaining about the conditions of his detention were dismissed by those courts. On 5 December 2014, when he applied to the Constitutional Court for the second time, he requested that the implementation of the deportation order be suspended. On 10 December 2014 the Constitutional Court allowed Mr K.A. ’ s request and suspended the implementation of the deportation order. After the Constitutional Court delivered its decision, the Istanbul Magistrate ’ s Court ordered Mr K.A. ’ s release, noting that the applicant could not be deported in the light of the interim measure issued by the Constitutional Court. On 6 January 2015 Mr K.A. was released.

25. In its decision, the Constitutional Court firstly declared inadmissible the applicant ’ s complaint concerning the alleged risk of his death or ill ‑ treatment in the event of his removal to Syria, holding that as a Syrian national, the applicant did not face a risk of expulsion since he was under “temporary protection”, pursuant to the Regulation of 22 October 2014 concerning the temporary protection of Syrian nationals in Turkey; consequently, he could not be deported.

26. The Constitutional Court further examined the applicant ’ s complaints regarding the conditions of detention and the alleged absence of an effective remedy by which to raise his allegations concerning the conditions of detention. Referring to (i) the Court ’ s case-law, and in particular the judgment given in Yarashonen v. Turkey (no. 72710/11 , 24 June 2014) (ii) t he standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment concerning the conditions of detention of foreign nationals, and (iii) the report of the Human Rights Institution of Turkey of 2014 on the conditions at the Kumkapı Centre, the court considered that the conditions at the Kumkapı Centre constituted treatment incompatible with human dignity. It held that the overcrowding at the Kumkapı Foreigners ’ Removal Centre, coupled with Mr K.A. ’ s inability to go outdoors on a regular basis and the insufficiency of the communal indoor areas, had been in breach of Article 17 § 3 of the Constitution. The Constitutional Court also took into account the duration of Mr K.A. ’ s detention at the Kumkapı Centre . The Constitutional Court also held that the applicant had not had an effective remedy at his disposal by which to raise his grievance concerning those conditions. It found that Law no. 6458 did not provide a remedy whereby detainees could complain about the conditions in which they were held and that the magistrate ’ s court had not examined the Mr K.A. ’ s complaints regarding the conditions of detention, despite the fact he had raised these complaints in his complaint.

27. The Constitutional Court also found a breach of Article 19 §§ 2, 4 and 8 of the Constitution, holding that the applicant ’ s detention had been unlawful, that he had not been informed of the reasons for his detention, and that he had not had an effective remedy whereby he could challenge the unlawfulness of his detention.

28. As regards the complaint concerning the unlawfulness of Mr K.A ’ s detention, the Constitutional Court first noted that Mr K.A. had been placed in administrative detention on 25 April 2014, whereas the detention order had been issued on 28 April 2014. The Constitutional Court further noted that the governor ’ s office had not reviewed the detention order on a monthly basis and had thus failed to comply with Article 57 of Law no. 6458. It lastly observed that Mr K.A. had been detained for eight months and ten days, despite the fact that the detention order had been valid for six months only. The court thus concluded that the authorities had failed to show diligence and that the applicant ’ s detention had not been lawful.

29. As to Mr K.A. ’ s complaint that he had not been informed of the reasons for his detention, the Constitutional Court observed that the applicant had not been served with a detention order at the beginning of his administrative detention. Nor had he been informed of the reasons for his continued detention. The court therefore found that the administrative authorities had failed to comply with Article 57 of Law no. 6458.

30. As to Mr K.A. ’ s allegation that he had not had an effective remedy to challenge his detention, the Constitutional Court held that the magistrate ’ s court had failed to carry out an adequate examination of Mr K.A. ’ s application, although Law no. 6458 had contained provisions protecting detainees against arbitrariness. Referring to the Court ’ s aforementioned judgment in Abdolkhani and Karimnia v. Turkey , the court also held that in the absence of information on the reasons for his detention, Mr K.A. ’ s right to appeal against his detention had been in any case deprived of all effective substance. As a result, the Constitutional Court found that Mr K.A. had not had an effective remedy whereby he could have obtained judicial review of the lawfulness of his detention.

31 . Lastly, the Constitutional Court awarded Mr K.A. 10,000 Turkish liras (TRY) (approximately 3,200 euros (EUR)) in respect of non-pecuniary damage he had suffered as a result of the violations of his aforementioned rights.

c. Other decisions

32 . On 20 January, 17 and 18 February and 9 June 2016 the Constitutional Court rendered five more judgments in which it found breaches of Articles 17 and 19 of the Constitution in relation to the applicants ’ detention at the Kumkapı Removal Centre (applications nos. 2013/655, 2013/1649, 2013/8735, 2013/8810 and 2014/2841).

COMPLAINTS

33. The applicants complained under Articles 3 and 8 of the Convention about the conditions of detention and the lack of medical assistance at the Adana and A ş kale Foreigners ’ Removal Centres. They alleged in particular that the national authorities had failed to take into account the age of the third and fourth applicants in keeping them in detention for one year. They also submitted under Article 3 of the Convention that they had been kept incommunicado at the A ş kale Centre.

34. The applicants alleged under Article 5 § 1 of the Convention that their detention at the Adana and A ş kale Foreigners ’ Removal Centres had been unlawful.

35. The applicants further contended under Article 5 § 2 of the Convention that they had not been well informed of the reasons for their detention at the Foreigners ’ Removal Centres but had solely been asked to sign documents.

36. The applicants maintained under Articles 5 § 4 and 13 of the Convention that there was no effective remedy in Turkish domestic law by which to challenge the lawfulness of their detention.

37. The applicants further contended under Article 5 § 5 of the Convention that there was no effective remedy capable of ensuring their right to compensation.

38. The applicants complained under Article 13 of the Convention that they had not had an effective remedy in respect of their complaints under Articles 3 and 8 of the Convention. In this connection, they contended that the magistrate ’ s courts had failed to examine their grievances concerning the conditions of their detention. They also submitted that an individual application to the Constitutional Court was not an effective remedy.

THE LAW

39. The applicants complained that there had been a breach of their rights guaranteed by Article 3, Article 5 §§ 1, 2, 4 and 5, Article 8 and Article 13 of the Convention on account of their detention at the Adana and A ş kale Foreigners ’ Removal Centres. They submitted that they had not applied to the Constitutional Court given that it did not conduct an adequate examination of the interim measure requests and applications brought before it by persons detained in Foreigners ’ Removal Centres .

40. In their submissions dated 7 January 2016, the Government argued that the applicants should have applied to the Constitutional Court before lodging an application with the Court.

42. The Court further notes that subsequent to the constitutional amendments which entered into force on 23 September 2012, an individual application system was put in place under the legal system of Turkey. The new Article 148 § 3 of the Constitution gives the Constitutional Court jurisdiction to examine individual applications concerning the fundamental freedoms and rights protected by the Constitution and by the European Convention on Human Rights and the Protocols thereto, after ordinary remedies have been exhausted.

43. The Court recalls that it has already examined this new remedy in its aforementioned decision in the case of Uzun . In that decision, the Court first examined practical aspects of the remedy, such as its accessibility and the procedure to be followed in the case of an individual application. It then examined the scope of the Constitutional Court ’ s jurisdiction and the powers entrusted to it, as well as the legislature ’ s intent. The Court also noted the binding nature of the Constitutional Court ’ s decisions. As a result of its examination of the principal aspects of the individual application to the Constitutional Court, the Court considered that there was no element which would allow it to conclude that the remedy in question was not accessible or capable of redressing alleged violations of the rights guaranteed under the Convention (see Uzun v. Turkey ((dec.), no. 10755/13, §§ 52-70, 30 April 2013). The Court accordingly held that it was for the individual claiming to be a victim to test the limits of the protection provided by the remedy before the Constitutional Court. As that had not been the case, that application was declared inadmissible. The Court reserved the right to examine the consistency of the Constitutional Court ’ s case-law with its own and noted that it would be for the respondent Government to prove that the remedy was effective, both in theory and in practice. It finally held that it retained its ultimate power of review in respect of any complaints submitted by applicants who, in accordance with the subsidiarity principle, had exhausted the available domestic remedies ( ibid. , § 71).

44. Subsequent to the adoption of its decision in the case of Uzun , the Court declared inadmissible a number of other cases raising various issues under the Convention for non-exhaustion of domestic remedies on account of the applicants ’ failure to apply to the Constitutional Court (see, for example, Ö zkan v. Turkey (dec.), no. 28745/11, ECHR 1 October 2013; Koçintar v. Turkey (dec.), no. 77429/12, 1 July 2014; Schmick v. Turkey (dec.), no. 25963/14 , 7 April 2015; X. v. Turkey (dec.), no. 61042/14, 19 May 2015; Duran v. Turkey (dec.), no. 79599/13, 19 May 2015; Berker and Others v. Turkey (dec.), no. 54769/13, 20 October 2015; Mercan v. Turkey (dec.), no. 56511/16, 8 November 2016; and D. Ç . v. Turkey (dec.), no. 10684/13 , 7 February 2017).

45. In the present case, the Court observes that the applicants did not bring their Convention grievances before the Constitutional Court. In this regard, they claimed that the remedy of an individual application to the Constitutional Court had not been effective since the latter had (i) rejected interim measure requests lodged by other applicants who had complained about the conditions of their detention and (ii) in the case brought by Mr R.B., declared inadmissible as being manifestly ill-founded the complaint about the conditions of detention (see paragraphs 20 above).

46. The Court finds that the existence of mere doubts as to the effectiveness of the remedy before the Constitutional Court on account of its aforementioned decisions on interim measure requests and in application no. 2013/9673 is not a sufficient and valid reason for not applying to that court (see Vučković and Others , cited above § 74, and Mercan , cited above, § 26 ). In this connection, the Court reiterates that the effectiveness of a remedy within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant (see, inter alia , ÄŒonka v. Belgium , no. 51564/99, § 75, ECHR 2002 ‑ I) . Thus, i n the Court ’ s view, the fact that the Constitutional Court did not make a ruling in favour of Mr R.B. or those applicants who had submitted interim measure requests does not form a basis for concluding that the remedy before the Constitutional Court is ineffective. As the Court has already stated above, the Constitutional Court was entrusted with specific jurisdiction to establish a breach of Convention provisions and the appropriate powers to secure redress for violations (see Uzun , cited above, §§ 63-64), and the Constitutional Court ’ s decisions are binding on defaulting authorities and enforceable against them (see Aden Ahmed v. Malta , no. 55352/12, § 61, 23 July 2013, and Koçintar , cited above, § 43).

47. Moreover, in its aforementioned decision regarding the application brought by Mr K.A. (see paragraphs 23-31 above), who was represented by the current applicants ’ representative, the Constitutional Court held that that Mr K.A. ’ s rights enshrined in Articles 17 and 19 of the Constitution, which guarantee respectively the prohibition of torture and other ill-treatment and the right to liberty and security, had been breached. In this connection, the Court notes that in assessing Mr K.A. ’ s complaints concerning the alleged breaches of Articles 17 and 19 of the Constitution, the Constitutional Court made reference to the relevant case-law of the Court (in particular the judgments of Abdolkhani and Karimnia v. Turkey and Yarashonen v. Turkey ) and followed the principles established by the Court. Last but not least, the applicants did not argue that the conduct of the proceedings before the Constitutional Court and its examination of the aforementioned case lodged by Mr K.A. had not complied with the requirements of Article 5 § 4 or Article 13 of the Convention.

48. In sum, t he Court does not find that there were any special reasons for absolving the applicants of the requirement to exhaust domestic remedies, in accordance with the applicable rules and procedure of domestic law. On the contrary, had the applicants complied with this requirement, it would have given the domestic courts that opportunity which the rule of exhaustion of domestic remedies is designed to afford States – namely to determine the issue of compatibility of impugned national measures, or omissions to act, with the Convention. Moreover, this Court would have had the benefit of the views of the Constitutional Court. Thus, the applicants failed to take appropriate steps to enable the national courts to fulfil their fundamental role in the Convention protection system, that of the European Court of Human Rights being subsidiary to theirs (see Vučković and Others , cited above § 90, Mercan , cited above, § 27 ) .

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 30 November 2017 .

Hasan Bakırcı Julia Laffranque              Deputy Registrar President