Published on 6 September 2021

SECOND SECTION

Applications nos. 50150/18 and 50259/18 A.B. against Turkey and A.S. against Turkey lodged on 12 October 2018 and 12 October 2018 respectively communicated on 18 August 2021

SUBJECT MATTER OF THE CASE

The applications mainly concern the lawfulness and the material conditions of the applicants’ administrative detention pending the proceedings for their deportation. The applicants are both Russian nationals from the Republic of Kabardino-Balkariya, a region in the North Caucasus.

On 3 December 2013 – that is, prior to the entry into force of the Foreigners and International Protection Act (Law no. 6458) on 11 April 2014 –, the applicants were placed in administrative detention at the Kumkapı Removal Centre pending the proceedings for their deportation. Following their release from detention, on 22 January 2014 the applicants lodged individual applications with the Constitutional Court to complain, inter alia , about (i) the material conditions of their detention; (ii) the alleged unlawfulness of their detention; and (iii) the absence of any effective remedies to provide redress in respect of those complaints.

Referring to its recent judgment in B.T. (no. 2014/15769, 30 November 2017), the Constitutional Court decided on 20 and 19 December 2017, respectively, that the applicants’ complaints were inadmissible for failure to exhaust the action for a full remedy ( tam yargı davası ) before administrative courts, which could in theory provide an effective remedy.

Relying on Articles 3 and 13 of the Convention, the applicants complained about the material conditions of their detention at the Kumkapı Removal Centre and the absence of any effective domestic remedies to raise those complaints . They further argued that their administrative detention had been in violation of Article 5 §§ 1, 2, 4 and 5. The applicants stressed that the action for a full remedy would not be capable of offering redress in respect of the complaints at issue, and that following a protracted examination process, the Constitutional Court had thus condemned them to further, and futile, legal struggle with no prospects of success, as evidenced by the many unfavourable decisions delivered by the administrative courts even after the B.T. judgment .

QUESTIONS TO THE PARTIES

1. Did the applicants duly exhaust the remedies available in domestic law in respect of their complaints under Articles 3 and 5 § 1, 2, 4 and 5 of the Convention, as required by Article 35 § 1? In this connection;

a. Is the action for a full remedy ( tam yargı davası ) before administrative courts capable of providing redress in respect of the applicants’ particular complaints?

b. Does that remedy offer reasonable prospects of success in practice, having particular regard to the sample administrative court decisions provided by the applicants, where similar claims appear to have been rejected on procedural grounds due to lack of jurisdiction ( görevsizlik kararı ) or for failure to comply with the time-limit for lodging an administrative action, despite the Constitutional Court’s ruling in the B.T. case?

c. What is the relevance and significance of the decision of the Jurisdiction Disputes Court ( Uyuşmazlık Mahkemesi ) dated 23 November 2020 (2020/651 E., 2020/684 K.), where the said court held, in response to a jurisdictional dispute between an assize court and an administrative court, that claims for compensation arising from the administrative detention of foreigners by virtue of Law no. 6458 needed to be resolved before a court of ordinary law ( adli yargı yeri ), and not administrative courts?

The Government are invited to submit sample decisions, delivered in respect of administrative detentions pertaining to the period preceding the entry into force of Law no. 6458 , where the administrative courts have examined – within the context of an action for full remedy – the merits of complaints lodged by foreigners concerning (i) the material conditions of their detention, (ii) the unlawfulness of their administrative detention, (iii) the absence of any effective remedies to challenge the lawfulness of the detention, and (iv) the lack of prompt information on the reasons for deprivation of liberty . The Government are requested to include in their submissions decisions where the administrative courts have applied the time-limit rules for lodging an administrative action flexibly as suggested by the Constitutional Court.

2. Were the conditions of the applicants’ administrative detention compatible with Article 3 of the Convention?

The Government are invited to submit information and supporting documents on the material conditions at the Kumkapı Removal Centre, in particular the capacity of the rooms and the number of occupants held in those rooms in the relevant period, the opportunities for fresh air and daily exercise, the hygiene conditions and the adequacy of the food provided.

The parties are also invited to submit reports or information documents from reliable sources regarding the conditions of detention at the Kumkapı Removal Centre at the material time.

3. Did the applicants have at their disposal an effective and speedy domestic remedy for their complaints under Article 3 of the Convention, as required by Article 13 of the Convention?

4. Did the applicants’ detention comply with the requirements of Article 5 § 1 of the Convention? On what legal basis were the applicants detained?

5. Were the applicants informed promptly of the reasons for their detention, as required by Article 5 § 2 of the Convention?

6. Did the applicants have at their disposal a remedy by which they could challenge the lawfulness of their deprivation of liberty, as required by Article 5 § 4 of the Convention?

7. Did the applicants have an effective and enforceable right to compensation for their detention in alleged contravention of Article 5 § 1, as required by Article 5 § 5 of the Convention?

The Government are requested to submit all documents relating to the applicants’ detention and their release.

APPENDIX

No.

Application no.

Lodged on

Applicant Year of Birth Place of Residence Nationality

Represented by

1.

50150/18

12/10/2018

A. B. 1978 Istanbul Russian

Abdulhalim YILMAZ

2.

50259/18

12/10/2018

A. S. 1983 Istanbul Russian

Abdulhalim YILMAZ