Published on 7 June 202 1

SECOND SECTION

Application no. 50158/18 A.A. against Turkey lodged on 12 October 2018 communicated on 17 May 2021

SUBJECT MATTER OF THE CASE

The applicant A.A. is an Iranian national who escaped to Turkey for fear of religious persecution. On 15 October 2014 he was placed in administrative detention at the foreigners ’ detention facility of the Kütahya Security Directorate, and on 30 October 2014 he was released by an order of the Directorate General of Migration Management. Following his release the applicant lodged an individual application with the Constitutional Court where he complained, inter alia , of the ( i ) material conditions of his detention; (ii) the alleged unlawfulness of the 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), on 20 December 2017 the Constitutional Court declared the applicant ’ s complaints 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 applicant complained about the material conditions of his detention at the foreigners ’ detention facility of the Kütahya Security Directorate and the absence of any effective domestic remedies to raise those complaints. He further argued that his administrative detention had been in violation of Article 5 §§ 1, 2, 4 and 5, claiming in particular that he had been detained unlawfully without a detention order issued pursuant to the Foreigners and International Protection Act (Law no. 6458). The applicant further 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 him 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 applicant duly exhaust the remedies available in domestic law in respect of his complaints under Articles 3 and 5 § 1, 2, 4 and 5 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 applicant ’ s 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 applicant, 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 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 ( 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 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 detention facility that the applicant was held in, in particular as regards the opportunities for fresh air and daily exercise and the hygiene conditions.

The parties are also invited to submit reports or information documents from reliable sources regarding the conditions of detention at the relevant detention facility 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?

4. Did the applicant ’ s detention comply with the requirements of Article 5 § 1 of the Convention? In this connection, was the applicant ’ s detention in compliance with the detention procedure envisaged in sections 57 and 68 of Law no. 6458 in force at the material time? In particular, was the detention based on an order by the governor ’ s office as required under that provision?

5. Was the applicant informed promptly of the reasons for his detention, as required by Article 5 § 2 of the Convention?

6. Did the applicant have at his disposal a remedy by which he could challenge the lawfulness of his deprivation of liberty, as required by Article 5 § 4 of the Convention? In particular, did the applicant object to his detention before the magistrates ’ courts, as provided under Law no. 6458? If not, was there a particular reason that absolved the applicant from the obligation to resort to that remedy?

7. Did the applicant have an effective and enforceable right to compensation for his 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 applicant ’ s detention and release.