CASE OF DBOUBA v. TURKEY
Remainder inadmissible;Violation of Art. 3 (in case of expulsion to Tunisia);Violation of Art. 13;Violation of Art. 5-1;Violation of Art. 5-2;Violation of Art. 5-4;Violation of Art. 5-5;Pecuniary damage - claim dismissed;Non-pecuniary damage - award
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
5. The applicant was born in 1967 and is currently being held in the Gaziosmanpaşa Foreigners' Admission and Accommodation Centre in Kırklareli. 6. In 1986 the applicant became an active sympathiser of the Islamic Tendency Movement, an illegal organisation in Tunisia. In 1989 the organisation was renamed Ennahda. He was arrested and questioned by the police on various occasions. As a result of persecution by Tunisian security forces, the applicant left Tunisia in 1990 and arrived in Syria, via Libya and Egypt. In 1992 he went to Italy and in 1994 he returned to Syria. 7. According to the applicant's submissions, in 1996, when the applicant went to the Tunisian consulate in Damascus, Syria, to renew his passport, he was detained and questioned by Tunisian officials there. Subsequently, he left Syria and arrived in Turkey. 8. Between 1996 and 2007 the applicant lived in the province of Şanlıurfa without a residence permit. 9. On 19 June 2007 the applicant was arrested by officers from the AntiTerrorist Branch of the Şanlıurfa Police Headquarters within the context of a police operation conducted against al-Qaeda. On 20 June 2007 he was transferred to the Bursa police headquarters. On 22 June 2007 the Bursa Magistrates' Court ordered his pre-trial detention. 10. On 9 August 2007 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court, charging the applicant and twenty-two others with membership of al-Qaeda. As regards the applicant, the public prosecutor noted that he was protected by another suspect, the person who was responsible for the Bursa area, and gave Arabic lessons to members of al-Qaeda. 11. On 24 January 2008 the Istanbul Assize Court held the first hearing on the merits of the case. During the hearing the applicant made statements to the effect that his asylum request had been rejected at the end of 1996 and he had been living in Turkey for more than ten years. He further maintained that he had not been involved in the activities of al-Qaeda and that he could not return to Tunisia because he risked ill-treatment and the death penalty in his home country. At the end of the hearing, the court decided to release the applicant pending trial. The court however banned the applicant from leaving the country. 12. According to the information in the case file, the criminal proceedings against the applicant are still pending before the first-instance court. 13. On an unspecified date the applicant reapplied to the Office of the United Nations High Commissioner for Refugees (“the UNHCR”) and requested to be recognised as a refugee. 14. Following his release from pre-trial detention and prior to his placement in a foreigners' admission and accommodation centre, on 25 January 2008 the applicant was questioned by two police officers at the foreigners' department of the Kocaeli police headquarters. According to the document containing his statements, the applicant was informed that a procedure for his deportation had been initiated. He was then asked to make statements as to his application to the UNHCR. The applicant maintained that his lawyer had contacted the UNHCR on his behalf and that he had been interviewed by the UNHCR on 18 January 2008. The applicant further contended that he did not wish to be sent to Tunisia, as he risked the death penalty and ill-treatment in his country of origin. 15. On 5 March 2008 the director of the department responsible for foreigners, borders and asylum attached to the General Police Headquarters requested the Kocaeli governor's office to ensure the applicant's removal from Turkey. The applicant could not however be deported, on account of the decision of the Istanbul Assize Court banning him from leaving Turkey. 16. On 17 October 2008 the deputy director of the Kocaeli police headquarters requested the Istanbul Assize Court to annul its decision banning the applicant from leaving the country. He stated in his letter that the applicant had provoked others in the Centre and had started a protest by not accepting the meals served. The deputy director also noted that the applicant was a person liable to be deported under Article 19 of Law no. 5683. 17. On 3 December 2008 the applicant was recognised as a refugee under the UNHCR mandate. 18. On 23 December 2008 the applicant made an official application to the Ministry of the Interior for temporary asylum in Turkey. He was interviewed by officials from the Ministry of the Interior about his request between 9 and 12 November 2009, but has not been informed of the outcome of that interview. 19. In the meantime, on 22 January 2009 the Istanbul Assize Court set aside its decision of 24 January 2008. 20. According to the Government's submissions, the procedure for the applicant's deportation had been re-initiated following the decision of the Istanbul Assize Court of 22 January 2009. However, the procedure was suspended due to the application of the Rule 39 measure. The Government maintained that the applicant had been living in Turkey without seeking asylum. He had sought asylum only after it had been decided to remove him from Turkey. His request for temporary asylum was rejected since he was a suspected al-Qaeda member and therefore his presence in Turkey endangered national security and public order. 21. According to a letter of 14 September 2009 written by Mr Rashid Ghannouchi, one of the founders and the chairman of Ennahda, the applicant is a member of the Ennahda Party of Tunisia and would be at risk of imprisonment and torture if removed to Tunisia on account of his affiliation with that organisation. 22. The applicant was placed in the anti-terrorist branch of the Kocaeli police headquarters following the decision of the Istanbul Assize Court dated 24 January 2008 (see paragraph 11 above). 23. On 11 March 2008 the applicant was transferred to Kırklareli Foreigners' Admission and Accommodation Centre, where he is currently being held. 24. As regards the conditions in which he was kept in the Kocaeli and Kırklareli facilities, the applicant submitted that in Izmit he had been kept in a 9 sq.m cell where there were two benches of 0.75 x 0.90 metres. He had to call the warders when he needed to go to the toilet. He was given a meal once a day and did not have the right to leave his cell. During his detention in Izmit he had no access to his family or his lawyer. He therefore started a hunger strike, as a result of which he was allowed to see his lawyer three times. 25. As to the Kırklareli Foreigners' Admission and Accommodation Centre, the applicant maintained that he had been held in a 16 sq.m room with three other detainees. He was provided with meals three times a day. However, the food was of very poor quality. There was no drinkable water and therefore he was obliged to buy mineral water. He also noted that the detainees were not provided with any hygiene or cleaning products and that the warders had an aggressive attitude towards the detainees. 26. The Government submitted that the applicant was held in satisfactory material conditions in Kocaeli Police Headquarters and the Kırklareli Centre, where he was accommodated. 27. A description of the relevant domestic law and practice can be found in the case of Abdolkhani and Karimnia v. Turkey (no. 30471/08, §§ 29-44, 22 September 2009). 28. A description of the situation of Ennahda members in Tunisia can be found in Saadi v. Italy ([GC] (no. 37201/06, §§ 65-79, ECHR 2008...).