Published on 7 June 2021

SECOND SECTION

Application no s . 50119/18 and 6619/19

U.U. against Turkey and D.D. against Turkey

lodged on 12 October 2018 and 28 December 2018 respectively

communicated on 17 May 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 applicant in application no. 50119/18 is an Uzbek national. The applicant in application no. 6619/19 is a Russian national of Chechen origin.

In November and October 2013, respectively – 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 pending the proceedings for their deportation. Following their release from detention in January 2014, the applicants lodged individual applications with the Constitutional Court to complain, inter alia , about the ( i ) 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.

On 19 December 2017 and 9 May 2018, respectively, the Constitutional Court declared the applicants ’ complaints inadmissible for non-exhaustion of domestic remedies. In both decisions, the Constitutional Court noted at the outset that the applicants had been detained prior to the entry into force of Law no. 6458 and that, therefore, there was no legal framework governing their detention at the material time. It acknowledged that similar applications received in the past had led to findings of violation on all grounds invoked by the applicants, including as regards the claims concerning the absence of any effective remedies in Turkish law to complain about the conditions of detention at foreigners ’ removal centres and the unlawfulness of foreigners ’ administrative detention. It went on to note, however, that it had recently changed its jurisprudence on this matter in the case of B.T. (no. 2014/15769, 30 November 2017, published in the Official Gazette on 16 February 2018), where it had ruled that an action for a full remedy ( tam yargı davası ) before administrative courts – which could be lodged in respect all damages arising from the acts and actions of the administration – could in theory provide an effective remedy for complaints concerning both the conditions and the unlawfulness of the administrative detention of foreigners and therefore had to be exhausted (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).

The Constitutional Court held accordingly that although the applicants had lodged their individual applications long before the change of jurisprudence in question, there was no reason to depart from the new approach set out in the B.T. case and, therefore, declared their applications inadmissible for failure to lodge an action for a full remedy before the administrative courts. The Constitutional Court added that in the event that the applicants, or others in a similar situation, sought to have recourse to the administrative ‑ law remedy at issue after its decisions of inadmissibility in their respect, 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.

According to the information in the case file, the applicants did not bring administrative actions following the Constitutional Court ’ s inadmissibility decisions.

Relying on Articles 3 and 13 of the Convention, the applicants complained about the material conditions of their detention. The applicants further argued under Article 5 §§ 1, 2, 4 and 5 of the Convention that they had been unlawfully detained without an effective remedy by which to challenge the lawfulness of their detention, that they had not been duly informed of the reasons for their deprivation of liberty, and that they had had no right to compensation under domestic law for the violation of their rights under Article 5. They stressed in particular that the action for a full remedy was an administrative action of a very general nature that had been in force since 1982 but that had not previously been regarded by the Constitutional Court as being capable of offering redress in respect of the complaints at issue. The Constitutional Court had nevertheless decided in B.T. to declare that the said action could in theory provide effective redress to foreigners in the applicants ’ position, despite the absence of any change in the relevant legislation or in the case-law of administrative courts to warrant such new approach, and in disregard of the strict rules of procedure that administrative courts were bound by law to observe. 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 (see, for instance, the decisions of the Adana 3 rd Administrative Court, nos. 2019/1233 E., 2019/274 K. and 2019/511 E., 2019/566 K. dated 13 March and 25 June 2019; decisions of the Istanbul 13 th Administrative Court, nos. 2019/1258 E., 2019/1424 K. and 2019/1259 E., 2019/1430 K. dated 20 and 25 June 2019; the decision of the Istanbul 11 th Administrative Court, no. 2019/1214 E., 2019/1405 K. dated 26 June 2019; decision of the Ç anakkale Administrative Court, no. 2019/788 E., 2019/881 K. dated 2 August 2019; the decision of the Istanbul Regional Administrative Court, no. 2020/326 E., K. 2020/338 K. dated 11 March 2020; and the decision of the İ zmir Regional Administrative Court, no 2020/602 E., 2020/883 K. dated 7 July 2020)?

( 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 yarg ı 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 and, as concerns the applicant in application no. 50119/18, the conditions at the Pendik Security Directorate, 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 and the Pendik Security Directorate at the material time.

3. Did the applicants have at their disposal an effective 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.