CASE OF BOUDRAA v. TURKEY
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Robert Spano;Stéphanie Mourou-Vikström
5. The applicant was born in 1974 and lives in Yalova. 6. The applicant lived in Turkey between 2001 and 2003, when he met his wife and got married. The applicant and his wife have four children. In 2003 the applicant was deported to Algeria by the Turkish authorities. Between 2003 and 2006 he was imprisoned in Algeria, where he alleges he was subjected to various forms of ill-treatment. 7. The applicant and several other individuals founded the Rachad Movement in Algeria, a political organisation which opposes that country’s government through non-violent means. After the protest movement known as the Arab Spring began in 2010, he was taken into police custody in Algeria and he alleges he was subjected to ill-treatment there. 8. On an unspecified date he fled from Algeria to Syria, where he worked as a teacher. Subsequently, in August 2013, he arrived in Yalova, Turkey, where his wife and children lived. 9. On 3 November 2013 he was taken into police custody as he did not have a passport. On the same day, the applicant was placed in a detention room at the Yalova police headquarters, where he was detained between 3 November 2013 and 7 January 2014. 10. The applicant submitted that the detention room in which he had been kept was in an ordinary police detention facility where arrestees were held for short periods (generally one day). During his detention, many people were detained in the room, at times as many as 10-12 people. The room was around 10 sq. m and there was no heating or ventilation, and no bed. Nor did it receive any natural light. He was confined in that room and was exceptionally allowed to use the other parts of the detention facility. He could use the hall in the centre of the facility only when his family members visited him. The applicant was provided with a mattress and a blanket and he slept on the floor. He was never taken out of the detention facility and did not have access to exercise in the open air. The facility had no shower and he therefore had to wash himself in the toilets. As he suffered from asthma, anaemia and back problems, he needed medical assistance. However, he was taken to hospital on only one occasion. 11. The applicant submitted a number of photographs in support of his submissions. In one of those photographs he is seen sitting on the bench in a small detention room behind bars. 12. In their submissions dated 18 January 2017, the Government submitted that the applicant had been detained in the “custody cell” of the public security branch of the Yalova police headquarters. The custody cell in question was used as a foreigners’ detention centre because there was no separate foreigners’ detention centre in Yalova at that time. The Government stated that the custody facility measured approximately 92 sq. m and consisted of two detention rooms of 12.8 sq. m and 17.6 sq. m, two toilets (3.5 and 5.7 sq. m respectively), a room for the taking of police statements of 13.5 sq. m, a room used for interviews between arrestees and their lawyers of 6 sq. m, and an identification parade room of 6 sq. m. There was also a hall in the centre of the facility, which measured 21 sq. m, onto which the detention rooms opened. The hall had an air conditioner and two windows measuring 70 x 93 cm and 150 x 205 cm which provided natural light for the detention rooms. 13. In their additional observations dated 23 May 2017, the Government submitted that foreign nationals and Turkish nationals detained in the context of criminal investigations were kept separately in two detention rooms in the facility in question. They stated that at the material time the Turkish nationals had been kept locked in one of the detention rooms and that the applicant and other foreign nationals had had access at all times to the hall in the centre of the facility − where there were chairs and a table – and to the toilets. When there were no Turkish national detainees, the foreign nationals also had access to both detention rooms. 14. In support of their submissions the Government submitted a sketch map of the detention facility and a total of thirty-nine photographs. Nine of these photographs were taken outside and show the police station building. Eleven photographs were taken in the toilets, which appeared clean. There is a shower head installed in each of the toilets. Nine other photographs show the room for the taking of police statements, the room used for interviews between arrestees and their lawyers, and the identification parade room. Lastly, nine further photographs show the detention rooms and the hall. It is apparent that the detention rooms are separated from the hall by bars. There are no beds in the detention rooms but along their three walls there are concrete benches topped with a cushion. On the benches there are blankets, apparently used both for covering and as pillows. The detention rooms do not have windows but appear to receive light from the hall. The photographs of the hall show that there are two windows, a table and chairs on which towels were put in that area. 15. The Government also submitted custody registers showing the occupation rates at the detention facility for the period between 4 November 2013 and 7 January 2014. According to those documents, the applicant was detained alone for thirty-one days and for thirty days he was detained together with between one and six foreign nationals. On 26 November 2013 there were seven foreign nationals, including the applicant, detained at the facility. On 27 and 28 November 2013 the applicant was detained together with eleven other foreign nationals. 16. For thirty days between 4 November 2013 and 7 January 2014, there had been no Turkish nationals detained at the facility. In particular, on 26, 27 and 28 November 2013 no Turkish national had been held in custody. During the remaining thirty-five days, a minimum of one and a maximum of five Turkish nationals had been in detention, except for 1 January 2014, when eleven Turkish nationals had been held in police custody. In particular, on 29 November 2013 one Turkish national had been detained at the facility in question. 17. On 27 December 2013 the applicant lodged an individual application with the Constitutional Court. The applicant alleged, inter alia, that the conditions of his detention at the Yalova police headquarters described above had amounted to illtreatment (see paragraph 10 above). 18. On 21 January 2015 the Constitutional Court delivered its decision on the admissibility and merits of the applicant’s case. As regards the applicant’s complaint that the conditions of his detention at the Yalova police headquarters had amounted to ill-treatment, the Constitutional Court noted that he had complained that his health had worsened as a result of the conditions in which he had been detained. Since the applicant had been provided with medical assistance when he had fallen ill in detention, the Constitutional Court found that the administrative authorities had taken the necessary measures to protect the applicant’s physical and psychological health. As a result, the court concluded that the treatment of the applicant had not attained the minimum level of severity required to be described as inhuman or degrading treatment. 19. On 24 June 2015 the Constitutional Court’s decision was served on the applicant’s representative.