CASE OF YARASHONEN v. TURKEY
Violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law);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)
András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
5. The applicant was born in 1984 and lives in Istanbul. 6. On an unspecified date in 2000 the applicant fled Russia and travelled to Turkey following the alleged killing of his father and brother by Russian security forces. 7. On 25 October 2010 he was arrested at Atatürk International Airport in Istanbul, following an identity check, on the ground that he had entered Turkey illegally and possessed no passport. He was placed in custody at the police station in the airport. 8. On 26 October 2010 the applicant was questioned by a police officer at Atatürk International Airport police station. He stated that he had entered Turkey in 2000 through the Sarp border crossing on the Georgian border using his birth certificate and that he had never possessed a passport. 9. On 1 November 2010 the applicant was transferred to the Kumkapı Removal Centre. 10. On 17 February 2011 the applicant met with his lawyer, Mr A. Yılmaz, who also represented him during the proceedings before the Court. There is no information in the case file regarding the scope of their meeting, nor is it clear whether this was the applicant’s first meeting with his lawyer. 11. On 13 April 2011 the applicant met with another lawyer, Mr F. Amca. The lawyer indicated in his meeting notes that the applicant had not yet filed an asylum request at that point. He further noted that the applicant had caught flu three to four months before, but had not sought any treatment and was still suffering from it. It appears from the lawyer’s notes that at the end of the meeting the lawyer advised the applicant to speak to the officers in charge at the removal centre about his asylum request and his health problems. 12. On 18 April 2011 the applicant applied for asylum. 13. On 21 April 2011 the applicant’s lawyer, Mr A. Yılmaz, sent a letter to the General Security Directorate of the Ministry of the Interior by standard post complaining that the applicant was being detained unlawfully and requesting his release. In the letter he also brought the applicant’s health issues to the authorities’ attention and requested medical assistance. According to the information provided by the parties, the letter reached the Ministry of the Interior on 2 May 2011. 14. In the meantime, on 29 April 2011, the applicant was released from detention and granted an asylum-seeker certificate. He was instructed to reside in the Sakarya province pending the determination of his asylum request. 15. On 30 April 2011 the applicant went to a private clinic in Istanbul complaining of a cough and fatigue. He was diagnosed with an infection of the lower respiratory tract on the basis of a chest X-ray examination. He was prescribed a ten-day course of antibiotics and was asked to return to the clinic for a check-up at the end of that period. It is not clear whether the applicant did return to the clinic for his check-up. 16. On 9 June 2011, as his symptoms persisted, the applicant went to the Süreyyapaşa Thoracic and Cardiovascular Surgery Training and Research Hospital in Istanbul. Further medical tests conducted at the hospital revealed that the applicant was suffering from tuberculosis pleurisy. He received in-patient treatment at the hospital until 15 June 2011. On being discharged, he was advised to apply to a tuberculosis clinic for follow-up treatment. The applicant has not provided any information regarding his state of health or the treatment he received following his discharge. 17. The applicant claimed that the Kumkapı Removal Centre was severely overcrowded at the time of his detention, which lasted five months and twenty-seven days. He had to share a dormitory room of approximately 40 sq. m with twenty-four to forty-five other people, who were provided with only fifteen bunk-beds. The centre had an overall capacity of 560 people at the relevant time, but accommodated around 600 people. The overcrowding of the centre led to problems of hygiene. The building was infested with insects and there were frequent outbreaks of contagious diseases; he had thus contracted a serious bacterial infection. The quality and quantity of the food provided was also fairly poor. Moreover, there was no provision for outdoor exercise at the Kumkapı Removal Centre, which meant that he had been unable to go outside throughout his detention. 18. The Government submitted that the Kumkapı Removal Centre where the applicant was detained had a capacity of 300 persons. The detainees were accommodated on three floors: the first two floors were reserved for male detainees, and the third floor for females. There were five dormitory rooms on each floor, measuring 50, 58, 69, 76 and 84 sq. m respectively. There were fifteen to twenty beds in each of the ten rooms reserved for male detainees and all rooms were sufficiently ventilated. 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 in suitable weather conditions. A doctor was present on the premises every Thursday 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 at the removal centre, and the building was disinfected whenever necessary. 19. In support of their claims, the Government submitted, inter alia, photos of two of the dormitory rooms, both of which appeared well lit and fairly clean, as well as of the hallway and the cafeteria on one of the floors reserved for male detainees. Although the total number of beds cannot be ascertained from the photos, it is observed that there were two rows of bunk beds positioned against the walls in both rooms, leaving a narrow corridor in the middle of the room. While some of the bunks were touching each other, others were separated by big metal lockers. No other furniture, such as tables and chairs, was present in the rooms; there were blankets on the beds in only one of the rooms and the other room had no bedding at all. A television was available on each floor in the cafeteria. Moreover, a metal situp bench and an exercise bike were shown on the photo of the hallway of one of the floors reserved for male detainees. No photos of the toilets or the showers were provided. 20. The Government further stated that when the applicant first arrived in the Kumkapı Removal Centre on 1 November 2010, there were 265 detainees in total (163 male and 102 female). They also claimed that from 1 November 2010 until the applicant’s release on 29 April 2011, the number of detainees never exceeded 300 and submitted the registers showing the occupation rates in respect of male detainees on various dates as follows: