CASE OF ALIEV v. TURKEY
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 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of 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)
Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano
6. The applicant was born in 1974. According to the latest information available to the Court, he lives in Istanbul. 7. The applicant arrived in Turkey in 2006. The parties are in dispute as to whether he entered the country legally at the time. 8. On 4 or 6 November 2009 the applicant was apprehended in Edirne while trying to flee to Greece illegally. Following brief periods of detention at İpsala Gendarmerie Command and Tunca Foreigners’ Admission and Accommodation Centre (“Tunca Accommodation Centre”), he was transferred to Gaziosmanpaşa Foreigners’ Admission and Accommodation Centre (“Gaziosmanpaşa Accommodation Centre”) in Kırklareli, with a view to being deported. The exact date of his transfer is unknown to the Court; while the applicant claimed that he had been transferred on 9 November 2009, the Government maintained that the transfer had taken place on 11 November 2009 without, however, presenting any documents in support of their submission. 9. It appears that throughout his stay at Gaziosmanpaşa Accommodation Centre, the applicant made numerous attempts to seek asylum, all of which were allegedly ignored by the national authorities, until he was able to get in touch with a lawyer. On 27 July 2010 he lodged a new asylum request through his lawyer, which was admitted by the domestic authorities for processing. 10. On 1 September 2010 the lawyer requested the applicant’s immediate release from Gaziosmanpaşa Accommodation Centre in two separate letters sent to the Kırklareli Governor’s Office and the Ministry of the Interior, claiming thqsat his detention in prison-like conditions had no basis in domestic law and also contravened Article 5 of the Convention. 11. On 24 September 2010 the applicant was granted asylum seeker status by the Ministry of the Interior, along with a temporary residence permit in Kırklareli, valid until the completion of the asylum procedure. 12. On 27 September 2010 he was released from Gaziosmanpaşa Accommodation Centre. 13. Following his release, on 30 September 2010 the applicant went to Istanbul instead of staying in Kırklareli as ordered. On 1 October 2010 he was arrested on suspicion of attempted burglary and placed in police custody at Şehit Tevfik Fikret Erciyes district police station in Fatih, Istanbul (“Fatih police station”). On the same day, he was interrogated by the Fatih public prosecutor and the Fatih Magistrates’ Court, which ordered his release. The relevant decision was not made available to the Court. 14. Despite the court order for his release, the applicant was taken back to Fatih police station, where he was placed in a holding cell in the basement. 15. On 4 October 2010 the applicant’s lawyer visited him at the station and requested his release. He was, however, informed that this would not be possible as there was an order for his deportation. 16. On 7 October 2010 his lawyer went to Fatih police station once again, to visit the applicant and to inspect the conditions of his detention. According to the lawyer’s notes, there were two cells with iron bars in the basement of the station where the applicant was being held, both of which measured approximately 2 x 4 m. On the day of his visit, the applicant was sharing a cell with approximately ten other foreigners, all of whom were sitting on the floor with their backs against the wall and sharing three blankets between them. There were similarly ten to twelve people in the other cell. There was a small vent in the wall measuring approximately 30 x 50 cm, which let in very little light. There was also a pile of rubbish outside it. During their meeting, the applicant also gave a detailed account of his detention conditions, which the lawyer noted as follows. The number of detainees in the cell varied between seven and fifteen. There were no beds, and there was no room for more than three people to lie down at the same time. They were only provided with three blankets and four small pillows to share, and there was no heating. The cell, which also lacked natural light and sufficient ventilation, was always cold and there was no provision for outdoor exercise. The food provided was also insufficient; they had to pay to receive more. It appears that the lawyer brought the applicant and some of the other detainees sandwiches after the meeting, as they had complained of being hungry. 17. On 9 October 2010 the applicant was transferred to Kumkapı Removal Centre pending his deportation, apparently because the basement of Fatih police station was flooded. 18. On 12 October 2010 Fatih police station was inspected by the Fatih public prosecutor, who found the detention facility to be in compliance with the standards set out in the relevant regulations without, however, going into any details about the specific conditions in his brief report. 19. On 19 October 2010 the applicant was conditionally released from Kumkapı Removal Centre and instructed to go to Kırklareli, after it became apparent that he had already been granted a temporary permit to reside there in September 2010. 20. It appears that following his release from Kumkapı Removal Centre, the applicant went to Edirne instead of going to Kırklareli as instructed. On 12 November 2010 he was apprehended in Edirne close to the Greek border while attempting to flee to Greece once again. He was placed back in Gaziosmanpaşa Accommodation Centre. 21. During a headcount conducted on 1 December 2010, officers at Gaziosmanpaşa Accommodation Centre noticed that the applicant was intoxicated and behaving rowdily. He was therefore separated from the other detainees and escorted to the management office. According to the Government, as one of the officers was unlocking the door to the management office, the applicant collapsed unexpectedly in the corridor and hit his face on a radiator. The impact caused heavy bleeding in his left eye, and he started throwing up, in a semi-conscious state. According to the applicant, however, he did not fall but was forcefully pushed by one of the officers against the radiator and was severely beaten up once he landed on the floor. 22. The applicant was then taken to the Kırklareli State Hospital, where it appears he was diagnosed with alcohol poisoning. Following some initial medical treatment, on 3 December 2010 he was admitted to the ophthalmology department of the Trakya University Hospital, where he underwent an operation on his left eye, as well as various related treatments. He was discharged on 23 December 2010. The medical report drawn up on the day of his discharge indicated that he had been admitted to the ophthalmology department with symptoms of pain, reduced vision and exophthalmos in the left eye, which he had stated had been caused by a blow to his eye. He was diagnosed with widespread corneal erosion and a retrobulbar haemorrhage. He was also found to have an orbital floor fracture caused by the blunt trauma to his eye, for which he underwent an operation. 23. In the meantime, the Kırklareli public prosecutor had initiated an investigation into the incident of 1 December 2010 of his own motion. According to the documents in the case file, on 2 December 2010 he took a statement from a caretaker working at Gaziosmanpaşa Accommodation Centre, who had witnessed the applicant suddenly collapse while the two officers escorting him had been unlocking the door. 24. Moreover, on an unspecified date, the police took a statement from the applicant in hospital, who at the time alleged that he had lost his balance because he had been pushed by an officer. 25. Following his discharge from hospital, the applicant was taken to Şehit Hayrettin Yeşin police station in Kırklareli on 23 December 2010 to give a statement, in the presence of his lawyer, regarding the injury he had sustained on 1 December 2010. The applicant stated that he had no complaints of ill-treatment and that he had lost his balance and fallen over because he had been intoxicated at the time. He was subsequently told he was free to leave, but was ordered to stay in Kırklareli in accordance with his residence permit. 26. On 21 January 2011 the Kırklareli public prosecutor decided not to bring any charges in relation to the applicant’s injury in the light of his statement of 23 December 2010. 27. In the meantime, the applicant went to Istanbul after being released from detention on 23 December 2010, despite being specifically ordered to remain in Kırklareli. On 28 December 2010 he lodged a criminal complaint with the Fatih public prosecutor against the police officers who had allegedly illtreated him at Gaziosmanpaşa Accommodation Centre. He argued, in particular, that following the headcount on the evening of 1 December 2010 he had been taken to the management office, where one of the officers had grabbed him by the collar and tossed him against the wall, as a result of which he had hit his eye on the radiator and passed out. He claimed that he had not told the truth at Şehit Hayrettin Yeşin police station, as he had been warned by an officer that his detention would be prolonged if he pressed charges. 28. When the public prosecutor subsequently summoned him to make a statement, the applicant stated that he had previously misrepresented the facts as he had been scared, without giving any more details as to why. He added that he had also been severely beaten up by the officers after he had collapsed onto the floor, and admitted that he had been drinking kolonya (citrus cologne), mixed with a soft drink, prior to the incident. 29. On 31 January 2011 the Fatih public prosecutor issued a decision to the effect that he had no jurisdiction (görevsizlik kararı) in respect of the applicant’s complaints, and referred the matter to the Kırklareli public prosecutor. 30. On 8 April 2011 the Kırklareli public prosecutor took statements from two of the suspected police officers and three witnesses, also police officers. The two suspects denied the applicant’s allegation that they had attacked him. All of the witnesses corroborated that the applicant had been very drunk on the relevant day, and one of them, who had been at the scene of the incident, stated that the applicant had fallen over without anyone having pushed him. 31. On 9 September 2011 the Kırklareli public prosecutor issued a decision not to prosecute because of insufficient evidence. Referring to the inconsistency between the applicant’s statements, the public prosecutor stressed that although the applicant had stated that he had been scared to tell the truth at Şehit Hayrettin Yeşin police station on 23 December 2010, there had been no reason for him to be scared, particularly because he had made his statement in the presence of his lawyer. 32. The applicant did not object to the decision of the Kırklareli public prosecutor, despite being entitled to do so before the Edirne Assize Court. 33. On 18 May 2011 the applicant’s request for asylum was rejected by the Ministry of the Interior, as he had failed to comply with the requirements to be granted asylum seeker status as set out in the 1951 Convention relating to the Status of Refugees (“the Geneva Convention”) and the Turkish Asylum Regulation.