Published on 7 June 202 1

SECOND SECTION

Application no. 42151/18 B.T. against Turkey lodged on 17 August 2018 communicated on 17 May 2021

SUBJECT MATTER OF THE CASE

The application is an Uzbek national who escaped to Turkey allegedly for fear of persecution due to his religious and political beliefs. On 23 June 2014 he was taken into administrative detention – first at the Sabiha Gökçen Airport detention facility and then at the Kumkapı Removal Centre – pending the proceedings for his deportation. Following his release from detention on 21 August 2014 by an order of the Directorate General of Migration Management, the applicant lodged an individual application with the Constitutional Court and complained, inter alia , of ( i ) the material conditions of his detention in both of the facilities where he was held, and (ii) the absence of any effective remedies to complain of the conditions of his detention.

On 30 November 2017 the Constitutional Court dismissed these complaints for failure to exhaust the available domestic remedies. It held that while it had previously found in the case of K.A. (dated 11 November 2015), and consistently thereafter, that there existed no effective administrative or legal remedies in Turkey to compensate for damage arising from adverse material conditions of the administrative detention of foreigners, it now considered that the action for a full remedy ( tam yargı davası ) before administrative courts could in theory provide effective redress in that regard. The Constitutional Court added that in the event that the applicant, or others in a similar situation, sought to have recourse to the administrative ‑ law remedy at issue after its decision of inadmissibility, the administrative courts would be called upon to assess compliance with the relevant time-limit rules in a manner that would not prejudice the right of access to a court (see G.B. and Others v. Turkey , no. 4633/15, §§ 36 and 37, and §§ 53-62, 17 October 2019 for further information on this matter).

Relying on Article 3 of the Convention, the applicant complained that the conditions of his detention had amounted to inhuman and degrading treatment. He further complained under Article 13 that there had been no effective remedies available to him to complain about the conditions of his detention. He stressed in this regard that there had been no changes in the relevant legislation or in the case-law of administrative courts to warrant the Constitutional Court ’ s change of jurisprudence and that decisions delivered by administrative courts, both before and after the inadmissibility decision in his regard, demonstrated that the administrative remedy in question would not provide redress in respect of his particular complaints.

QUESTIONS TO THE PARTIES

1. Did the applicant duly exhaust the remedies available in domestic law in respect of his complaints under Article 3 of the Convention, as required by Article 35 § 1? In particular;

( a ) Is the action for a full remedy ( tam yargı davası ) before administrative courts capable of providing redress in respect of the complaint in question?

( b ) Does that remedy offer reasonable prospects of success in practice, having particular regard to the sample administrative court decisions provided by the applicant?

(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 the Foreigners and International Protection Act (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 following 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 the material conditions of their detention. 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 applicant ’ s 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 Sabiha Gökçen Airport detention facility and 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 aforementioned detention facilities at the material time.

3. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 3 of the Convention, as required by Article 13 of the Convention?