Published on 7 June 2021

SECOND SECTION

Application no. 50247/18 I.M. and Z.M. against Turkey and 2 other applications (see list appended) 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 applicants ’ detentions were declared by different magistrates ’ courts to be unlawful under the Foreigners and International Protection Act (Law no. 6458).

Following their release from detention in October 2014, August 2014 and April 2017, the applicants all 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 . Referring to its recent judgment in B.T. (no. 2014/15769, 30 November 2017), the Constitutional Court decided in December 2017, June 2018 and November 2019, 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 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 particular;

( 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 Çanakkale 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 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. ( a. ) Were the conditions of the applicants ’ administrative detention compatible with Article 3 of the Convention?

( b. ) Were the special needs of the minor applicants (application no. 44219/20) met at the Zeytinburnu Security Directorate and Selimpaşa and Aşkale Removal Centres (see, for instance, G.B. and others , cited above, §§ 101-111)?

The Government are invited to submit information and supporting documents on the material conditions at the various detention facilities that the applicants were held in, 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 relevant detention facilities 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. ( a ) Did the applicants ’ detention comply with the requirements of Article 5 § 1 of the Convention?

( b ) Were the applicants in applications nos. 50247/18 and 44219/20 released from detention in a timely manner following the magistrates ’ courts decisions to that effect?

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? In particular;

( a ) Did the reviews carried out by magistrates ’ courts into the lawfulness of the applicants ’ detention comply with the requirements of Article 5 § 4?

( b ) Did the administrative courts have the competence to assess, within the context of an action for a full remedy, the applicants ’ allegations regarding the ineffectiveness of the review carried out by the magistrates ’ courts as regard the lawfulness of their detention?

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?

8. Has there been a violation of Article 8 of the Convention as regards the right to respect for the private and family life of the applicants in application no. 44219/20?

The Government are requested to submit all documents relating to the applicants ’ detention and their release, including all relevant court decisions .

APPENDIX

List of applications

Application No :

Case name:

50247/18

I.M. and Z.M. v. Turkey

5953/19

K.K. v. Turkey

44219/20

A.R. and Others v. Turkey