CASE OF TEHRANI AND OTHERS v. TURKEY
Remainder inadmissible;Violation of Art. 3 (in case of expulsion to Iran or Iraq);Violation of Art. 13+3;No violation of Art. 3 (substantive aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-4;Non-pecuniary damage - award
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
6. The applicant was born in 1969 and is currently being held in the Kırklareli Foreigners' Admission and Accommodation Centre (Kırklareli Yabancılar Misafirhanesi) (the “Kırklareli Accommodation Centre”). 7. The applicant left Iran on 30 December 2002 and joined the People's Mojahedin Organisation of Iran (“PMOI”) in the Al-Ashraf camp in Iraq on 11 January 2003. Following the disarmament of the PMOI on 3 June 2004, he started living at the Temporary Interview Protection Facility (“the TIPF”), also in Iraq. On 5 May 2006 the United Nations High Commissioner for Refugees (“UNHCR”) in Iraq recognised the applicant as a refugee. 8. With the assistance of a people-smuggler, the applicant left Iraq at the end of June. In his application form the applicant stated that he was arrested on 4 July 2008, whereas in his two subsequent statements given to the Turkish authorities he stated that he was arrested in Turkey on 7 July 2008. Among the documents submitted by the Government is a list of individuals arrested on 7 July 2008 and the applicant's name is included therein. 9. The applicant was initially taken to a police station following his arrest. It appears from the documents submitted by the Government that at this station the applicant's fingerprints were taken on 5 July 2008 and, during his questioning on 7 July 2008, he was informed that he had been arrested for illegal entry into the country. The statement form dated 7 July 2008 bears the applicant's signature as well as that of a translator. 10. On 7 July 2008 the applicant was transferred to the Tunca Foreigners' Admission and Accommodation Centre (Tunca Yabancılar Misafirhanesi, the “Tunca Accommodation Centre”) in Edirne where, on 22 July 2008, he was questioned about his entry into Turkey, his political background and the reasons for his flight from his country of origin. 11. The authorities initially transferred the applicant to a larger building at the Tunca Accommodation Centre on 7 December 2008, then to the Kırklareli Accommodation Centre on 1 June 2009. 12. The applicant, an Iranian national, was born in 1951 and is currently being held at the Kırklareli Accommodation Centre. 13. The applicant was living in Iran with his wife and five children when he became involved with the PMOI. In 1990 they fled to Turkey, where he was recognised as a refugee by the UNHCR. At the time the applicant's wife was pregnant with their sixth child. The applicant and his family resettled in Finland in 1992. The following year the applicant left Finland to join the PMOI in Iraq. In 2004 he defected from the PMOI and initially stayed at the TIPF and then at the Al-Ashraf camp until 2008. 14. Some time in early 2008 the applicant re-established contact with his family in Finland and left the Al-Ashraf camp on 4 March 2008. With the assistance of a people-smuggler he entered Turkey illegally in either May or June 2008 and went to İstanbul. He lodged a request with the Finnish authorities in Turkey for a visa to enter Finland. While waiting for the outcome the applicant decided to flee to Greece. 15. The applicant stated before the Court that he was arrested by the Turkish authorities on the night of 4 August 2008 and taken to a gendarmerie station in Didim, Aydın, where he asked for asylum and temporary leave to remain in Turkey. He was then transferred the same night to an abandoned warehouse operated by the Didim Gendarmerie Headquarters and kept there for ten days, before being transferred to a detention facility in Didim on 15 August 2008. The applicant was held here for a period of twenty-two days. 16. In their submissions the Government maintained that, following his arrest, the applicant was held at the accommodation centre for foreigners within the premises of the Aydın Security Headquarters (the “Didim Accommodation Centre”). Among the documents submitted by the Government, an arrest report lists the names of twenty-two foreigners arrested on 4 August 2008, among whom there is a certain Perviz Muhammed, an Iranian national aged sixty-six. A transfer document dated 14 August 2008 lists seventeen Iranian nationals, which includes the same Perviz Muhammed but notes that he was arrested on 5 August 2008. This document further indicates that these seventeen individuals were transferred from the gendarmerie headquarters to the Didim Accommodation Centre. 17. On 28 August 2008 the Finnish authorities granted the applicant a visa to enter Finland. On 4 September 2008 he was further granted work and residence permits for Finland. 18. On 5 September 2008 the authorities transferred the applicant to the Kırklareli Accommodation Centre where he has been held since. 19. On 5 September 2008, either in Didim or in Kırklareli, a police officer took the applicant's statement in relation to the asylum procedures. The applicant stated that he and his family had been resettled in Finland sixteen years earlier by the UNHCR. He had then returned to Iraq on duty. He had been arrested by the Turkish authorities while attempting to return to Finland after having completed his duty. 20. On 12 January 2010 the Court received a letter from the applicant requesting to withdraw his application. On 22 January 2010 the applicant's representative notified the Court that the applicant wished to pursue his application. On 11 February 2010 the applicant's representative sent to the Court two letters written by the applicant on 7 February 2010, in English and in Turkish, noting that he had been held in detention for seventeen months and specifying that he wanted to be deported to Iran where his life would be in danger. The applicant's representative further submitted a psychological status report drawn by C.S., apparently a free lance psychologist. The report indicated that the applicant was showing depressive symptoms, stress and anxiety disorder and that he needed urgent psychological and psychiatric support. In this connection it was further stated that the applicant said that he wished to go back to Iran which meant committing suicide and that he considered this to be better than the vagueness of his present situation. 20. Following the Court's interim measure requesting diagnosis of the applicant's mental state to be carried out in a fully equipped state hospital, the Government submitted on 5 March 2010 a medical report drawn by a psychiatrist on 1 March 2010. This single paragraph report stated that the applicant did not suffer from a psychotic illness, that he had insight into his condition and further diagnosis could not be carried out since the applicant refused to undergo a thorough psychiatric examination. 21. The applicants were born in 1960 and 1966 respectively. They are currently settled in Kırklareli on the basis of a temporary residence permit. 22. The first applicant (K.M.) was involved with the PMOI in the early 1980s, while he was studying in the United Kingdom (“the UK”) where he lived between 1978 and 1986. He then went to Iraq, was recruited by the PMOI and lived in the Al-Ashraf Camp until 19 November 2006. After leaving the Al-Ashraf Camp, the applicant went to the TIPF where the UNHCR recognised his refugee status on 16 October 2007. The applicant left the TIPF on 23 December 2007 and went to Erbil, where he met the second applicant. 23. The second applicant (P.R.S.) joined the PMOI in Iraq in 1990. In April 2004 he defected from the organisation and went to reside in the TIPF, where the UNHCR recognised him as a refugee on 5 May 2006. 24. In 2008 the applicants decided to flee Iraq and go to the UK; they paid 7,000 United States dollars (USD) to people-smugglers. On 11 September 2008 they crossed the border from Turkey to Greece, where they were arrested and sent back. Upon arrival on Turkish territory on the same day, the Turkish border officials arrested the applicants along with many others and drew up a list of names involving sixty-seven foreigners. It is further stated in this document that, in the absence of a translator, those listed could not be questioned with regard to the alleged breach of the Passport Code. The authorities took the applicants to the Tunca Accommodation Centre the following day. 25. On 17 September 2008 officers at the Passports and Foreigners' Directorate (“Pasaport Yabancılar Şube Müdürlüğü”) questioned the applicants. Statement forms drawn up during the questioning indicate that, stating they spoke Turkish, the applicants did not request a translator and gave a brief description of their background as well as how they had travelled to Greece. The Statement forms further indicate that the applicants were transferred to the said Directorate following judicial proceedings against them for having illegally entered Turkey. 26. On 14 October 2008 the applicants were transferred to the Kırklareli Accommodation Centre. 27. On 14 May 2009 the applicants requested the Ministry of Interior to release them. 28. The Ankara Administrative Court ordered the applicants' release on 7 and 27 October 2009 respectively. The authorities released the applicants on 25 November 2009 and granted a temporary residence permit valid for five months. On an appeal by the General Security Headquarters, the Ankara Regional Administrative Court overturned, by a decision of 11 November 2009, the Ankara Administrative Court's decision in respect of the first applicant. The court based its decision on public order and general security grounds due to the applicant's former PMOI membership. At the time the judgment was drafted the applicant had not yet been recalled to the Kırklareli Accommodation Centre. 29. The applicants in applications nos. 32940/08 and 43616/08 mainly complained about overcrowded rooms, poor hygiene, the poor quality of food, a lack of proper drinking water, medical attention, insufficient hot water for bathing, an insufficient number of public telephones, and a lack of fresh air and exercise. 30. In this connection the applicant in application no. 32940/08 submitted varying figures in respect of the size and capacity of the accommodation centre. Accordingly, he claimed in his initial application form that he had been kept in a building (“the first building”) consisting of three rooms, each measuring 20-25 square metres with about twenty beds and accommodating up to 160 detainees. Thus he had to sleep on the floor for three nights before being able to occupy a bunk bed. Following his transfer to a bigger building (“the second building”), the applicant submitted that this new place had been approximately 250 square metres accommodating a varying number of people, from 30 to 280. In his final submissions to the Court, the applicant maintained that the men's unit in the first building measured 233 square metres, the sleeping area of which was 169 square metres, containing 55 beds for an average of 120 to 150 persons. In these submissions the applicant further stated that the second building was 408 square metres with a sleeping area of 288 square metres and accommodated an average of 250 to 300 persons without any ventilation or sufficient light. The applicant added that, during the two months following his transfer to the second building, there had been no beds at all and the occupants had had to sleep on an insufficient number of dirty blankets and mattresses placed on the floor. 90 bunk beds had gradually been brought into the accommodation centre. The building furthermore had no heating. There had been three toilets without a flush, scarce hot water and no working showers. The applicant had only been allowed into the fresh air eight times during his eleven-month stay at the Tunca Accommodation Centre. 31. The applicant in application no. 32940/08 initially submitted fourteen photographs in respect of the first building he had been kept in. The photographs seem to have been taken with a mobile telephone. It is not clear whether these photographs are of the same room or of different rooms. There are bunk beds closely lined up parallel to the walls of the room with no apparent sheets, covers or pillows, some with blankets. In all photographs there is an uncountable number of men either lying down in the space in the middle of the room, within touching distance of each other, or sitting on blankets on the floor. Some of the men seem to be walking around those who are lying down. One of the photographs shows men leaning over some individuals lying on the floor to reach a public telephone on the wall. In another photograph a crowd of men is sitting on the floor elbow to elbow eating a meal while others appear to be queuing for theirs at the far end of the room. 32. The applicant in application no. 32940/08 subsequently submitted video footage of the second building and photographs derived from it, which had been recorded on the mobile telephone of another individual following the applicant's departure. These visual submissions indicate that individuals were kept in a hangar-like hall with bunk beds lined up close to each other by the walls and numerous dirty mattresses spread around on the floor in the middle, mostly without any linen, pillows or blankets. The photographs and footage lack sufficient light. Daylight seems to enter the hall from a number of windows placed near the high sloping roof and the main entrance to the hall, which is accessed through iron bars. The exact number of toilets and showers is not clear, since a piece of cloth has been placed in front of a door, blocking the view behind. However, as far as can be established, there appear to be two stained toilets, a broken shower and a row of taps near a wall, possibly for washing feet. The building in general appears worn and dirty. The visual submissions do not reveal lockers, tables, chairs or any sort of personal items. 33. The applicants in application no. 43616/08 submitted the same fourteen photographs described above in respect of application no. 32940/08. They claimed in their initial application form that the facility they had been kept in consisted of three rooms and a bathroom, measuring in total 130 square metres with an average of 120 people and 44 beds. In their subsequent submissions they stated that the facility measured 233 square metres in total, with an average of 120 to 150 individuals and a total of 55 beds. The applicants maintained that, as a result, many individuals had to sleep on the floor with no bedding at all. They contended that the rooms did not have proper lighting or ventilation. Furthermore, they had not been allowed to spend time outdoors, which had been particularly unbearable due to cigarette smoking indoors. 34. The applicants contested the Government's replies summarised below. 35. The Government maintained that there were two buildings for the purpose of holding illegal migrants, the total capacity of which amounted to 300 persons. In this connection the Government stated that the photographs submitted by the applicants had been taken during a two-hour period when newcomers were gathered for pre-interview, interview and medical screening stages, following which they would have been settled in their rooms. 36. The food distributed at the accommodation centre consisted of three-course meals and was supplied by a catering company. There was constant hot water for bathing and a water purifier for drinking water. The accommodation centre did not have a clinic but had an infirmary. Those who were sick were taken to local hospitals. The wards were regularly disinfected to ensure hygiene. 37. In support of their submissions the Government provided ten photographs, which showed a big glass medicine container, rows of bunk beds placed close to each other with brand new mattresses still in their plastic coverings and pillows piled in a corner, a shower which did not appear to have a door or a curtain, a public telephone, a three-course meal served on a tray, a water purifier, an on-site shop and a playground for children, as well as a small football field. 38. In application no. 32940/08 the applicant referred to the submissions of the applicants in application no. 43616/08, and maintained that the conditions at the Kırklareli Accommodation Centre were better than those at the Tunca Accommodation Centre due to fewer detainees and time outdoors. He maintained however that this facility was intolerable for an extended stay, because the food distributed lacked nutritional and calorific value, the water was undrinkable, hot water was not regularly available, work and educational activities were not provided and there was only minimal medical support. 39. In their submissions to the Court, the applicants in application no. 43616/08 maintained that the physical conditions in the Kırklareli Accommodation Centre were below the minimum standards set by the European Committee for the Prevention of Torture (“the CPT”). In this respect they submitted a drawing of a room which they maintained was 14.2 square metres. Providing a number of photographs the applicants complained in particular that the hygiene and quality of food served to detainees had been poor and the drinking water extremely chalky. They therefore had to buy food from the over-priced on-site shop. The applicants further contended that they had insufficient access to hot water for showering. The applicants additionally complained that the Kırklareli Accommodation Centre lacked proper recreation and exercise space, as well as medical facilities. The exercise facilities outdoors were only accessible between noon and 5 p.m. 40. Photographs presented by the applicants show three-course meals varying between soup, mixed vegetables, bulgur, beans, chick-peas, lentils, bread and jam. There seems to be a white chalky substance at the bottom of a glass of water. Large cauldrons of food appear placed on tables in a hall. There are photographs of a dilapidated, unused kitchen. Some photographs show meals distributed by staff members, others by detainees. One of the photographs indicates that the staff member distributing food is wearing plastic gloves. There are no queues for meals. The applicants further submitted photographs of two showers in closed cabins. One of the showers appears to be broken. There are also photographs of two squat toilets, one with dark stains and the other appearing reasonably clean. Applicants also submitted photographs of barbed wire surrounding the accommodation facility, metal bars outside their windows, a tower water tank, rubbish containers where there seem to be large amounts of cartons, paper and plastic bags lying around, as well as a broken plastic chair, and a volleyball field with overgrown grass. There are also photographs of a round-table gathering apparently between State officials and occupants of the accommodation centre, as well as of a religious ceremony, the subsequent distribution of meat and an exchange of greetings. 41. The applicants objected to the Government's replies below. 42. The Government submitted that the rooms were of a standard size, shared by four people and measuring 35 square metres. They maintained that the kitchen facility seen in the photographs submitted by the applicants was not in use and the food was supplied externally by a catering company. With regard to the tap water, the Government stated that the staff had been using the same water supply and that there had been no medical incident arising from its use. Additionally the Government provided photographs of various social events organised at the accommodation centre. Other photographs included those of a medical clinic in the centre, individuals playing volleyball and walking around in the garden, playing in the snow, a girl around the age of three riding a small bicycle outdoors, the distribution of meals, toilets and sinks, a prayer room, a football field, a television room and a table tennis facility. One of the rooms appears to have a toilet and shower. Other photographs indicate that there is a separate shower and toilet area as well as a washing machine for common use. Some of the photographs provide images of daily life, such as an individual painting on canvas or two individuals having tea in a room. Rooms seem to have natural light coming through large windows. Whether bunk beds or ordinary beds, all beds appear to have pillows, blankets and linen. Photographs show that the rooms are equipped with curtains, ceiling lights, large personal lockers and central heating radiators. They are decorated with detainees' personal belongings, such as carpets on floors or posters on walls. Some rooms seem to have plastic tables and chairs. In one of the photographs there is a computer, a ventilator and a small Christmas tree. The Government also presented photographs of the barbed-wire perimeter, empty rubbish containers, the collection of garbage by municipality staff and an official giving presents to occupants. 43. The applicant in application no. 41626/08 complained that he had initially been detained for a period of ten days in poor conditions in an overcrowded warehouse operated by the Didim Gendarmerie Headquarters. He claimed to have been held in unhygienic conditions with insufficient natural light and ventilation, insufficient access to sanitary facilities, without bedding, safe drinking water, proper food, medical support, sufficient hot water, any indoor or outdoor activities or contact with the outside world. 44. With respect to the conditions at the Didim Accommodation Centre, the applicant maintained that he shared a dormitory with six other people and had no privacy. He suffered from a lack of fresh air, proper food, drinking water, proper bedding, extra clothing, personal hygiene items and hot water, as well as insufficient access to sanitary facilities. He had observed a total of 60 beds and 60 occupants in the centre during his stay. He had not been allowed access to the outdoors and was refused contact with the outside world. 45. The applicant further contested the Government's replies summarised below. 46. The Government maintained that the applicant had been taken to the Didim Accommodation Centre following his arrest, and did not reply to the applicant's allegations regarding his alleged detention in a warehouse operated by the Didim Gendarmerie Headquarters. With respect to the Didim Accommodation Centre, the Government maintained that there were ten dormitories with bunk beds. The families were kept in separate rooms where possible. All rooms had windows opening outward. The facility had a kitchen, prayer room, dining hall, television room, toilet, bathroom and twenty-four-hour hot water. According to the Government, the tap water was drinkable and the food at the centre was provided by a catering company. The inhabitants of the accommodation centre underwent monthly medical checkups and medicine was provided by the State. Likewise, cleaning materials such as washing powder, soap and bleach, was provided by the Aydın Security Headquarters. In this connection the Government provided a number of receipts indicating payments to a catering company, bakery, market and a dairy products company. The Government also submitted the menu served at the accommodation centre between July and December 2008. The menu indicates that meals consisting of two to three courses were served every day of the week. The food varied between soup and vegetables, pasta and meat or meatballs and dried beans and yoghurt. Salad and fruit seem to be served occasionally. The Government further submitted two receipts dated 7 and 8 August 2008 indicating payment to a pharmacy for a total of thirty-eight prescriptions. 47. The Government provided thirteen photographs of the Didim Accommodation Centre. There are photographs of two separate rooms, seemingly occupied by two families. The rooms have large windows with curtains and iron bars on the outside, central heating radiators and bunk beds with white bedding and blankets. In one of the rooms there is a flat carpet and in the other a plastic chair. There are also photographs of a kitchen with an electric stove, a squat toilet, an electric water heater, a small sink and what seems to be the main entrance of the centre. 48. A description of the relevant domestic law and practice concerning asylum procedures may be found in the case of Abdolkhani and Karimnia v. Turkey (no. 30471/08, §§ 29-44, 22 September 2009). 49. A.A., an Iranian refugee, was held in an accommodation centre at the relevant time. On 14 July 2008 he requested the Ministry of the Interior to release him and subsequently lodged a case with the Ankara Administrative Court on 6 August 2008. Stating that he had been recognised as a refugee by UNHCR, A.A. mainly argued that his detention was unlawful. At the time, A.A.'s request for a residence permit on family reunification grounds was under examination by the Swedish authorities. On 17 September 2008 the Ankara Administrative Court ordered A.A.'s release. 50. Following his visit to Turkey between 28 June and 3 July 2009, the Commissioner for Human Rights of the Council of Europe published a report on 1 October 2009 regarding, inter alia, the situation of asylum seekers and refugees. The relevant part of the executive summary reads as follows: “... Having welcomed the efforts made by the Turkish authorities to improve living conditions in places of detention he visited [İstanbul and İzmir], the Commissioner remains concerned about reports of severe deficits in other holding facilities. He urges the authorities to secure dignified standards of living for all detained asylum seekers, to ensure that detention is the exception and be limited to certain purposes and to the shortest possible time. ... Further he urges the authorities to ensure the prompt provision of information to asylum-seekers in a language they understand, including the reasons of their arrest and detention, [and] to provide for prompt judicial review of detention ...” 51. The relevant paragraphs of the CPT Standards (the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment) concerning the conditions of detention of foreign nationals, as well as of a report on the Kırklareli Accommodation Centre issued by Human Rights Watch on 6 November 2008, may be found in the case of Z.N.S. v. Turkey (no. 21896/08, §§ 34-37, 19 January 2010). 52. In June 2008 Human Rights Watch visited, inter alia, the Tunca Accommodation Centre and published a report on 6 November 2008 entitled 'Stuck in a Revolving Door'. The relevant extracts from the report read as follows: “... Human Rights Watch spent two full days visiting the Edirne Tunca detention facility. The access we were given to the facility was particularly remarkable given the absolutely dreadful conditions we found there. On the first day we visited, June 11, 2008, the detainee population was 703. The capacity of the facility is 200. By our second visit, 263 people had been released, including, as it turned out, nearly everyone who spoke Arabic and Farsi, the languages of our interpreters. Nevertheless, we were permitted to interview anyone we chose in a completely private setting in a courtyard outside a building holding most of the detainees. The Tunca facility at Edirne is comprised of two buildings, each divided into two rooms. The smaller of the two buildings holds in one room women and children and in the other men who appear to have prospects of relatively quick identification and cooperation from their home consulates to effect their removal from Turkey. The countries of origin of the men in the small building included Algeria, Iran, Iraq, Kazakhstan, and Ecuador. The larger building which holds by far the larger number of detainees is divided into a smaller room for men who will be released to Istanbul because they are members of nationalities that cannot be deported, such as Somalis and Palestinians, and the larger room which holds the largest number of men—about 400 on our first visit—who are held indefinitely pending their relatives providing tickets for their return flights or until they can be deported. Most of the men in the big room appeared to be south Asians from countries like Bangladesh, Pakistan, Sri Lanka, India, as well as various African nationalities. The authorities also put “Afghans,” “Somalis,” “Burmese,” and “Palestinians” in the big room when they doubted their declared nationalities. ... The conditions in the big building, particularly in the bigger of the two rooms, are abysmal—completely unfit for human habitation, even for a short duration. As a place of indefinite detention, the conditions alone are inhuman and degrading. Words fail to describe the sight and smell of 400 men crammed into a single room. For our own security, we were not allowed to walk into the room, but stood at the only door to the room, a padlocked iron gate, where we peered into the darkness. Though men crowded toward us, they parted their human sea so we could see the jammed crowd all the way to the wall. There was no space between any bodies; they sat shoulder to shoulder both along the walls and in the room's interior. ... The big building looks like an old warehouse. It is dark and fetid. There are only small windows at the ceiling level and these are made of glass so are useless in terms of air circulation and cooling. There is only one window fan and one other fan at the end of the room. Although the larger of the two rooms has an exit that leads to the courtyard that could theoretically be used to provide fresh air and exercise, in fact, except for those interviewed by Human Rights Watch, none of the detainees had ever been allowed into the yard. The smaller of the two rooms doesn't even have a door that leads to the yard. ... The strongest first impressions of Edirne are the overcrowding, the desperation, the stench and the grime. ...”