SECOND SECTION

Application no. 17853/11 Henok TAREKE and Others against Turkey lodged on 18 March 2011

STATEMENT OF FACTS

THE FACTS

The applicants, Mr Henok Tareke , Ms Salmon Tahaste , Mr Jamal Ali El Amen and Mr Germay Gebremariam Tela are Eritrean nationals . The first three applicants were born in 1977, 1989 and 1991 respectively and currently reside in Isparta with a temporary residence permit . The fourth applicant ’ s date of birth is unknown and he was sent to Sudan by the authorities upon his request. The applicants are represented before the Court by Ms S. Uludağ , a lawyer practising in I stanbul .

A. F acts concerning the events before the applicants ’ arrival to Turkey, as submitted by them

The applicants were conscripts in the Eritrean army, who had been placed in the military prison for having tried to escape from the army during their military service. According to the interviews conducted with them by their representative, during their time at those military prisons two of them were subjected to various forms of ill-treatment, including severe beating and exposure to the sun with bound hands and feet and were forced to stay in the army despite their requests to leave.

In 2010 all applicants escaped from the army, fled Eritrea and went to Sudan where the first three of them obtained forged passports with the help of certain other people. Subsequently, they all left Sudan on account of fear of being deported back to Eritrea and of persecution by the authorities of that country for having fled.

B. Facts concerning the events after the applicants ’ arrival to Turkey, as submitted by both parties

On 18 March 2011 the applicants arrived to Turkey , aiming to reach a western European country. All of them except for Mr Germay Gebremariam Tela carried forged passports. They were all arrested upon their arrival at the Istanbul Atatürk Airport under the “inadmissible person” (INAD) procedure pursuant to the Covenant on International Civil Aviation. According to their submissions, following their arrest, they were handcuffed, held down with physical force and dragged to the boarding area by the police to be deported to Sudan . They were also pushed to sign some documents, which they refused, as the contents of the documents were not revealed to them. Meanwhile, neither their representative nor the UNHCR officials could have direct access to them.

Following the application of an interim measure by the Court under Rule 39 of the Rules of Court on the same day, the INAD procedure was stopped by the authorities and the applicants were kept in the international transit zone of the Istanbul Atatürk Airport .

On 21 March 2011 the first three applicants submitted their asylum requests to the domestic authorities and maintained that they would be killed if sent back to Sudan or Eritrea . The fourth applicant, Mr Tela , simply requested to be returned to Sudan .

The next day, on 22 March 2011 the Directorate of Security informed the Foreigners ’ Office about the content of the brief interviews conducted with the applicants, indicating that each of the first three applicants had mainly stated that they had escaped from Eritrea with financial concerns, in search of a better life.

On 25 March 2011 the applicants ’ representative asked leave to meet the applicants. However, this was refused by the airport authorities.

On the same day, the Directorate of Security instructed the Istanbul Governorship and the Atat ü rk Airport Security Branch that the applicants ’ asylum requests be examined through an accelerated procedure in accordance with the relevant legislation.

On 27 March 2011, one of the applicants, Ms Salmon Tahaste , started to have concerns about her health condition, in particular about an infection around her left ear, which, according to her allegations, was disregarded by the authorities.

On 28 March 2011 the first three applicants were interviewed once more, this time by police officers, and evaluation reports were issued regarding their asylum claims. During the interviews, which were conducted in English and Arabic, the applicants gave information about their families, maintained that they had been conscripts in the Eritrean army and had previously been imprisoned there for having escaped during their military service. Only one of them, Mr Henok Tareke stated that he had been beaten at the army. They also indicated that they had escaped Eritrea as they could not work there due to the forced military service.

On 30 March 2011 the Istanbul Governorship decided that the applicants ’ asylum requests did not meet the cri teria established by the Geneva Convention and rejected them under the Asylum Regulation. According to the Government, the decisions were given on the basis of the country of origin information as well as the interviews conducted with the applicants, regard being had to their claims under Articles 2 and 3 of the Convention that they would be ill-treated or killed if returned to Sudan or Eritrea . The applicants refrained from signing the decisions and filed objections against them.

According to the applicants, in the evening of the same day they were forced to sign some papers and were threatened with being deported, which put them in a state of fear and panic.

In the meantime, on an unspecified date, the fourth applicant Mr Tela was returned to Sudan upon his request.

On 6 April 2011, the airport authorities refused the request of another lawyer to meet the applicants in person.

On an unspecified date Ms Tahaste was taken to a doctor and given medication by the authorities.

Meanwhile, over a certain period of time, the applicants ’ representative conducted interviews with the applicants over the telephone, with the assistance of a Tigrinia interpreter.

On 15 April 2011 the applicants met with their representative for the first time. Subsequently, on 26 April 2011 the UNHCR representatives were allowed to meet the applicants and register their asylum requests in order to evaluate whether they were eligible for international protection.

On 6 May 2011 the domestic authorities rejected the applicants ’ objection s to the refusal of their asylum request s and closed their files .

On 18 May 2011 the Ministry of Interior decided to allow the applicants ’ entry into Turkey and ordered that they reside at the Kumkapı Foreigners ’ Admission and Accommodation Centre , pending the assessment by the Ministry of whether the y risk ed treatment contrary to Article 3 of the Convention if they were returned to Sudan or Eritrea .

On 30 May 2011 all applicants, except for Mr Tela , were recognised as refugees under the mandate of the UNCHR.

On 20 June 2011 the Ministry of Interior decided that the applicants would be allowed to reside in Isparta and ordered the Isparta Governorship to issue temporary residence permits, to be valid until 18 November 2011.

C. Procedure before the Court

On 18 March 2011 the applicants ’ representative lodged the present application with the Court, claiming that the applicants were being deported to Sudan and requesting the Court to stop their deportation under Rule 39 of the Rules of Court . She maintained that she could not submit powers of attorney as the authorities did not allow her to contact the applicants in person and that the only means of communication available was the public telephones in the transit zone.

On the same day the President of the Chamber to which the case had been allocated decided to indicate to the Government, under Rule 39, that the applicants should not be deported until 2 April 2011. She requested the Government to inform the Court as to whether there was a deportation order against the applicants, whether their contact with their lawyers and the UNHCR was restricted and whether their asylum requests were registered.

On 1 April 2011 the Government submitted their responses to some of the questions posed to them. They maintained, inter alia , that the applicants were kept in the international transit zone of the Istanbul Atatürk Airport , which was an area restricted to international passengers and certain personnel. Accordingly, although there were no limitations in the relevant legislation, it was practically impossible for a lawyer to meet the applicants in person. The applicants could still contact their representatives through the public telephones in the said zone. The Government further stated that there was no deportation order against the applicants.

On the same day it was decided to discontinue the interim measure under Rule 39 in respect of Mr Tela , as he wished to be returned to Sudan . The measure was prolonged until 7 April 2011 in respect of the remaining applicants. Moreover, the President of the Chamber requested the Government to provide the applicants ’ access to their lawyer in a way that enabled the lawyer to obtain a power of attorney from them. She also put another set of questions to the Government, requesting information as regards the applicants ’ access to the asylum procedure and to their representatives and about Ms Tahaste ’ s condition.

On 7 April 2011 the applicants ’ representative challenged the content of the interviews submitted by the Government as they had been conducted in English and Arabic, languages in which the applicants were not proficient, while she had benefited from the assistance of a Tigrinia interpreter during her interviews.

On the same day the interim measure was extended until 27 April 2011. Moreover, the Government were requested , under Rule 39, to allow the applicants ’ representative or any other advocate to have access to the applicants.

On 14 April 2011 the Government submitted their responses, stating that the applicants ’ asylum requests had been rejected, and confirmed that no deportation order had been issued against them in the meantime. They also stated that they had not received any information as regards Ms Tahaste ’ s health condition.

The applicants ’ representative submitted the authority forms to the Court on 20 April 2011.

On 21 April 2011 the President of the Chamber decided to prolong the interim measure until 4 May 2011 .

T he Government submitted a n additional letter o n 26 April 2011, arguing that the delay in the applicants ’ meeting with their representative was due to the latter ’ s conduct and that the applicants had not ill-treated in any way since their arrest.

President of the Chamber decided on 3 May 2011 to prolong the interim measure again, until 8 June 2011 .

On 6 June 2011 the interim measure was prolonged, this time until further notice, upon the applicants ’ request.

D. Relevant domestic law and practice

T he relevant domestic law and practice are outlined in the Abdolkhani and Karimnia v. Turkey judgment (no. 30471/08, §§ 29-51, 22 September 2009).

C OMPLAINTS

The applicants argue under Article s 2 and 3 of the Convention that their removal to Eritrea would expose them to a real risk of death or ill-treatment . They maintain that the same risk applies to their removal to Sudan in that they would either be deported to Eritrea or would be ill-treated by the Sudanese authorities for having travelled to and from that country illegally.

They invoke Article 13 of the Convention, claiming that there is no effective domestic remedy available to them whereby they could have their allegations under Articles 2 and 3 examined.

The applicants further complain under Article 3 of the Convention about the degrading treatment they were subjected to by the authorities at the Istanbul Atatürk Airport , the detention conditions in the international transit zone and the authorities ’ disregard for Ms Tahaste ’ s health condition. As regards the detention conditions, they maintain that the rooms they were kept in at the transit zone lacked windows and that they had no access to fresh air.

Relying upon Article 5 §§ 1 and 2 of the Convention, the applicants complain that they were held in detention at the Istanbul Atatürk Airport and the Kumkapı Foreigners ’ Admission and Accommodation Centre without there being any legal basis and that they were not informed of the reasons of their detention. They maintain under Article 5 §§ 4 and 5 that they did not have access to any domestic remedy to request their release, challenge the lawfulness of their detention or claim compensation for the unlawful deprivation of liberty.

The applicants maintain under Article 34 of the Convention that they were denied direct access to their representative and that the effective exercise of their right to individual application was hindered by the authorities. In this respect, they submit that during the period until 15 April 2011, their representative could not obtain authority forms and information regarding their detention conditions, which were crucial elements for their application before the Court.

QUESTIONS TO THE PARTIES

1. Would the applicants ’ removal to Sudan or Eritrea give rise to a real risk that they would be subjected to treatment in violation of Articles 2 or 3 of the Convention?

The Government are requested to inform the Court whether the time-limits of the applicants ’ temporary residence permits have been extended .

2. Did the applicants have at their disposal an effective domestic remedy for their complaints under Articles 2 and 3 of the Convention, as required by Article 13 of the Convention? In particular, d id the authorities take the requirements of Articles 2 and 3 of the Convention into account when considering the applicants ’ requests for asylum?

3. Were the applicants subjected to inhuman and degrading treatment in violation of Article 3 of the Convention during their detention at the international transit zone of the Istanbul Atatü rk Airport ?

The Government are requested to provide information as regards the detention conditions at the international transit zone. Moreover, both parties are requested to inform the Court about Ms Tahaste ’ s medical condition and the treatment she received during her detention.

4a. With reference to the applicants ’ complaint raised under Article 5 of the Convention and having regard to the absence of a deportation order to send the applicants to Sudan or Eritrea , what was the reason for their detention at the international tra nsit zone of the Istanbul Atatürk Airport and the Kumkapı Foreigners ’ Admission and Accommodation Centre ?

b. Did the applicants ’ detention comply with the requirements of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty fall within paragraph (f) of this provision?

c. Were the applicants informed promptly of the reasons for their deprivation of liberty, as required by Article 5 § 2 of the Convention, when they were detained?

d. Did the applicants have at their disposal an effective remedy by which they could challenge the lawfulness of their deprivation of liberty, as required by Article 5 § 4 of the Convention? What is the applicable law and practice in Turkey governing judicial review of the lawfulness and length of detention of foreigners who were arrested under the “inadmissible person” procedure ?

5. Had the applicants ’ lawyers been prevented from meeting with them and obtaining a power of attorney in the international transit zone of the Istanbul Atatürk Airport during the period before 15 April 2011? If so, can the authorities ’ refusal be considered as hindering the effective exercise of the applicants ’ right of individual petition, guaranteed by Article 34 of the Convention ( Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 129 , ECHR 2005 ‑ I ; Shtukaturov v. Russia , no. 44009/05, §§ 138-149 , 27 March 2008 ; and D.B. v. Turkey , no. 33526/08 , § § 66-67 , 13 July 2010 )?