CASE OF AMERKHANOV v. TURKEY
Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Kazakhstan);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-2 - Information on reasons for arrest);Violation of Article 5+5-5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) (Article 5 - Right to liberty and security;Article 5-5 - Compensation);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)
Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
6. The applicant was born in 1989 and is detained in Atyrau, Kazakhstan. 7. According to the applicant’s submissions, he lived in Atyrau, Kazakhstan until 2010. Between January and November 2010 the applicant was constantly harassed by the police, taken into police custody and ill-treated. In January 2010 he was asked to go to a police station as a friend of his had informed the police that the applicant had witnessed a fight between him and another friend of the applicant. On that day a statement was taken from him by the police. The next day he was once again invited to the police station, where, this time, he was beaten by the police. Subsequently, he was also accused of forcing a girl to worship in the Muslim manner and of raping her. He was eventually released from police custody. The applicant considered that he had been subjected to ill-treatment because he was a practising Muslim who worshipped and who wore a beard. On 27 November 2010 the applicant left Kazakhstan and arrived in Turkey. He then went to Syria twice and also to Georgia. On 21 May 2011 the applicant re-entered Turkey on a tourist visa. 8. On 9 June 2011 with a view to requesting a residence permit in Turkey, the applicant went to the Istanbul police headquarters, where he was arrested. The Government submitted that (i) subsequent to his arrival in Turkey 21 May 2011, an entry ban was issued in respect of the applicant, as he was considered to constitute a threat to national security, and (ii) he was detained with a view to his deportation. 9. On the same day the applicant was transferred to the Kumkapı Foreigners’ Removal Centre. 10. On unspecified dates the applicant applied to the national authorities and to the United Nations High Commissioner for Refugees (UNHCR), asking to be recognised as a refugee. 11. On 15 June 2011 a police officer conducted an interview with the applicant in the context of his application to be granted asylum. 12. On 28 June 2011 the applicant was notified by the police that his asylum application had been rejected. 13. On 29 June 2011 the UNHCR issued an asylum-seeker certificate to the applicant. 14. On 5 July 2011 one of the applicant’s representatives, Mr A. Yılmaz, lodged an objection to the decision to reject the applicant’s asylum application with the police department responsible for foreigners, borders and asylum attached to the Istanbul police headquarters. The lawyer asked the authorities to review their decision and to conduct a second interview with the applicant. 15. On 11 July 2011 Mr A. Yılmaz lodged an application with the Istanbul Magistrates’ Court for his client’s release. The applicant’s lawyer also stressed that the applicant was being kept in poor detention conditions. He received no response to his application. 16. On 16 August 2011 the police conducted a second interview with the applicant, during which he claimed that he would be exposed to a real risk of death and duress at the hands of the police if deported to Kazakhstan. In his statement, the applicant claimed that he had already been ill-treated by the police in Kazakhstan and that the authorities had imprisoned religious people like him on false accusations. 17. On 22 and 25 August 2011 Mr A. Yılmaz lodged two further applications with the police for his client to be released. He submitted that the applicant was being sought for by the Kazakhstan authorities for political reasons and that he would be persecuted on the basis of his religious convictions and subjected to torture and ill-treatment if deported to his country. In support of his petition dated 22 August 2011, the applicant’s lawyer submitted a document showing that the applicant was being sought for by the public authorities in Atyrau on suspicion of having committed the offence of “hooliganism”, proscribed by Article 257 § 3 of the Kazakhstan Criminal Code, as in force at the material time. He also submitted a copy of a page of a newspaper published in Kazakhstan in April 2011 according to which an arrest warrant had been issued in respect of the applicant. 18. On 13 September 2011 the applicant was released from the Kumkapı Foreigners’ Removal Centre. The applicant was ordered to go and live in the province of Sakarya pending the determination of his asylum application. 19. On 29 September 2011 the applicant went to Sakarya, where he lived until 15 March 2012. 20. On 24 October 2011 the applicant was granted a residence permit, valid until 20 May 2012. 21. On 3 November 2011 the InterpolEuropol Department attached to the General Police Headquarters requested the Foreigners, Borders and Asylum Department (also attached to the General Police Headquarters) to provide information regarding the applicant, noting that he was sought for by the prosecuting authorities and the Interpol bureau of Kazakhstan as he was suspected of having committed an offence in that country. On 1 December 2011 the deputy head of the Foreigners, Borders and Asylum Department informed the InterpolEuropol Department that the applicant had requested asylum and was residing in Sakarya and that on 24 October 2011 a further entry ban had been issued in respect of him after the applicant had been prosecuted for “hooliganism”. The Foreigners, Borders and Asylum Department requested the InterpolEuropol department not to provide any information to the Kazakhstan authorities, in the interests of the safety of the applicant and his family members in Kazakhstan. 22. On 15 March 2012 the applicant was served with a document informing him that his asylum application had been rejected on 2 March 2012 and that he could not benefit from subsidiary protection either. The document informed him that he was banned from entering Turkish territory and that if he attempted to enter Turkish territory, he would be deported. On the same day the applicant was detained. 23. On 16 and 19 March 2012 Mr A. Yılmaz lodged two applications with the Ministry of the Interior requesting that his client be released. The lawyer noted that he had received a phone call from the applicant, who had stated that he would be deported to Kazakhstan, where he would be subjected to torture. 24. On 19 March 2012 the applicant was deported to Kazakhstan. 25. In a letter dated 27 May 2013, Mr Yılmaz submitted that the applicant had been transferred to the custody of Kazakhstan’s security forces upon his return to Kazakhstan and had then been remanded in custody in Atyrau Prison. The lawyer stated that he did not have information supported by any document as to whether the applicant had been subjected to ill-treatment in Kazakhstan. 26. On 22 March 2012 Mr A. Yılmaz lodged an application with the Ankara Administrative Court for the annulment of the decisions of the Ministry rejecting the applicant’s asylum application and to deport the applicant from Turkey. He requested a stay of execution of the decision to deport the applicant, pending the proceedings before the Ankara Administrative Court. In support of his petition, the applicant’s lawyer submitted a number of documents to the Ankara Administrative Court, including a document downloaded from the Atyrau police department website, according to which an arrest warrant had been issued in respect of the applicant. The document, which was also submitted to the Court, contained the applicant’s name, photograph and the charge brought against him (“hooliganism”, under Article 257 § 3 of the Kazakhstan Criminal Code). He also submitted the newspaper page (see paragraph 17 above), which he had already submitted to the police on 22 August 2011 and according to which an arrest warrant had been issued in respect of the applicant. 27. On 11 May 2012 the Ankara Administrative Court rejected the request for a stay of execution in respect of the applicant’s deportation. 28. On 13 February 2013 the Ankara Administrative Court dismissed the application lodged by the applicant on 22 March 2012. In its judgment, the administrative court noted that according to information obtained from the National Intelligence Organisation (Milli İstihbarat Teşkilatı), the applicant was involved in international terrorism and had carried out terrorist activities when he had been in Turkey. The Ankara Administrative Court further noted that the applicant’s asylum application had been rejected as the administrative authorities had found that there had not been any basis for the applicant’s fear of persecution and that he had not met the conditions for being considered a refugee. On the basis of the documents in the case file, the Administrative Court concluded that the administrative decision to reject the applicant’s asylum application and to deport the applicant from Turkey had been lawful. 29. Following an appeal by the applicant, on 27 April 2016 the Supreme Administrative Court upheld the judgment of 13 February 2013. 30. Between 9 June and 13 September 2011 the applicant was detained at the Kumkapı Foreigners’ Removal Centre. The applicant claimed that the centre had been overcrowded at the time of his detention. He had not been allowed exercise outdoor or any other type of social activity throughout his detention. The applicant further alleged that there had been hygiene problems at the centre and that the quantity of the food provided had also been poor. 31. The Government submitted that the Kumkapı Foreigners’ Removal Centre where the applicant had been held had a capacity of 300 persons and that a total of between 100 and 150 persons had been held during the period between 9 June and 13 September 2011. Detainees were accommodated on three floors: the first two floors were reserved for male detainees, and the third floor for females. There were four dormitory rooms on the first floor, measuring 50, 58, 76 and 84 sq. m. On the second floor there were five dormitories measuring 50, 58, 69, 76 and 84 sq. m. There was a total of 120 bunk beds in the ten rooms reserved for male detainees and all rooms received natural light. There were also five showers and six toilets per floor, as well as a cafeteria measuring 69 sq. m, where breakfast, lunch and dinner were served daily on each floor. The detainees had the right to outdoor exercise if the physical conditions and the number of staff available allowed. A doctor was present on the premises every week and the detainees also had access to medical care in cases of emergency. As for the hygiene in the facility, there were six cleaning staff working full time and cleaning products, such as soap, were provided on a regular basis.