CASE OF BATYRKHAIROV v. TURKEY
Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Kazakhstan);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5+5-5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) (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)
Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström
4. The applicant was born in 1980 and is detained in Atyrau, Kazakhstan. 5. According to the applicant’s submissions, he left Kazakhstan in 2008 and lived in Saudi Arabia and Syria as a student until June 2011. He did not wish to return to his country as a number of people had been detained on charges of religious extremism in Kazakhstan and some of his friends had left the country after coming under pressure from the Kazakhstan government because of their political and religious identity. 6. In June 2011 the applicant arrived in Turkey. The Government submitted that subsequent to his arrival in Turkey, two entry bans were issued against him on the grounds that he was suspected of having provided logistical support to foreign nationals who were engaged in international terrorism. 7. On an unspecified date the applicant was taken into police custody and thereafter transferred to the Kumkapı Foreigners’ Removal Centre with a view to his removal to Kazakhstan. As the applicant applied for asylum while in detention, on 28 October 2011 he was released pending the determination of his asylum application. On the same day he was notified that he should go and reside in Denizli province. 8. On 4 November 2011 the applicant lodged his asylum application again – this time with the Denizli Governor’s Office. On the same day a police officer from Denizli Security Headquarters held a preliminary interview with the applicant. The applicant stated that he had learned that he was being sought for by the Kazakhstan authorities on terrorism charges and asked to be granted leave to stay in Turkey. He submitted that his removal to Kazakhstan would expose him to a risk of death. According to a report dated 22 November 2011 concerning the applicant’s interview of 4 November 2011, the interpreter who was appointed by the police authorities noted that the applicant spoke Turkish. 9. On 28 November 2011 the applicant was notified that his asylum application had been rejected. According to the report of 22 November 2011, the police officer who had interviewed the applicant found that the latter had failed to submit any concrete evidence concerning his nationality, identity and the problems he had experienced in Kazakhstan. The officer, however, found it established that the applicant feared to be returned to his country and that it was known to the Turkish authorities that he would be prosecuted if returned to Kazakhstan. 10. On 29 November 2011 the applicant objected to the rejection of his asylum application. He once again submitted that he would be exposed to a real risk of death if he were to be removed to Kazakhstan. 11. According to the Government’s submissions, on 26 December 2011 his objection was dismissed. 12. On 12 January 2012 the applicant lodged an application to be allowed to leave Turkey with the Denizli Security Headquarters and informed the police that he had been offered a visa to enter and live in Egypt. 13. On 18 January 2012 the police authorised the applicant to leave the country. 14. According to a document dated 6 January 2012 sent by the Deputy Director of the General Police Headquarters to a number of police authorities, during a meeting held on 4 January 2012 the ambassador of Kazakhstan in Ankara requested the Turkish Interior Minister to extradite Kazakhstan nationals who had been involved in terrorist acts and in respect of whom Kazakhstan had issued wanted notices (“Red Notices”) via Interpol. A formal extradition request in respect of such persons was submitted by the Kazakhstan embassy in Ankara to the Ministry of Foreign Affairs on 31 December 2011. According to the document prepared by the embassy, the applicant and four other persons were members of the “Islamic Jihad Union”, a terrorist organisation which carried out terrorist attacks in the western region of Kazakhstan. They had been detained by the Turkish authorities upon receipt of a Red Notice via Interpol by Kazakhstan. The embassy pointed out that subsequent to their asylum claims, four of those persons, including the applicant, had been released from detention in Turkey. The Kazakhstan authorities considered that these five persons had been in the process of preparing a new terrorist attack in their country and that following their release four of them had organised a terrorist attack in the Atyrau province of Kazakhstan, in co-operation with another terrorist organisation, Jund al-Khilafa (“Soldiers of the Caliphate”). The embassy accordingly requested the Turkish authorities not to grant asylum to them and to extradite them to Kazakhstan. 15. On 19 January 2012, while he was waiting at Istanbul Atatürk Airport to board a flight to Egypt, the applicant was taken into police custody on the basis of the extradition request submitted to the Turkish authorities by the Kazakhstan embassy. 16. On 23 January 2012 the Interpol-Europol department attached to the General Police Headquarters informed the Ministry of Justice and a number of security departments that a Red Notice had been issued by Kazakhstan via Interpol in respect of the applicant on the basis of terrorism-related offences. 17. On 24 January 2012 the Bakırköy Magistrates Court ordered the applicant’s detention within the context of the extradition proceedings for a period of forty days. The applicant was then placed in detention in Maltepe Prison, in Istanbul. 18. On 25 January 2012 the applicant lodged a petition with the Bakırköy Assize Court and challenged his detention. In his petition, he stated, inter alia, that a person who would be subjected to torture or other forms of ill-treatment in his country of origin should not be extradited to that country. 19. On 27 January 2012 the Bakırköy Assize Court dismissed the applicant’s petition challenging his detention. 20. On 28 February 2012 the Bakırköy Assize Court rejected the extradition request submitted by the Kazakhstan authorities. During the hearing held on the same day the assize court did not find it necessary to appoint an interpreter for the applicant as he spoke Turkish. According to the reasoning contained in the court’s decision, in his defence submissions the applicant had contended that he had been wrongly accused of being a member of alQaeda or Islamic Jihad and had asked the court not to extradite him to Kazakhstan. The Bakırköy Assize Court held that the applicant could not be extradited to Kazakhstan because the charge against him in Kazakhstan fell within the scope of one of the offence categories, precluding extradition, listed in Article 18 § 1 (b) of the Criminal Code, as in force at the material time (see paragraph 30 below). The court also ordered the applicant’s release from detention. The decision of 28 February 2012 became final as no appeal was lodged against it. 21. On 28 February 2012 the applicant was released from prison but was immediately transferred to the Kumkapı Foreigners’ Removal Centre in Istanbul. According to a document dated 29 February 2012, the applicant was informed that he was being held pending the outcome of the deportation procedure conducted in this respect. 22. On 7 March 2012 the Deputy Director of General Security ordered the Istanbul Police Headquarters to deport the applicant. 23. On 12 March 2012, while in detention, the applicant appointed his representatives to undertake the necessary legal and procedural actions on his behalf before the domestic authorities and the Court by way of a issuing a power of attorney before a notary public. 24. According to the applicant’s submissions, on 21 March 2012, when Mr Yılmaz, one of his representatives, went to the Kumkapı Foreigners’ Removal Centre to meet him, he was orally informed by officers at the centre that the applicant had been deported to Kazakhstan on 12 March 2012. 25. Upon a request by the applicant’s lawyer, on 31 May 2012 the Istanbul Police Headquarters sent a letter to the applicant’s lawyer informing him that the applicant had been deported to Kazakhstan on 12 March 2012. 26. In a letter dated 10 May 2014, Mr Yılmaz submitted that the applicant had been remanded in custody and placed in Atyrau Prison upon his return to Kazakhstan. The lawyer stated that he did not have information as to whether the applicant had been subjected to ill-treatment in Kazakhstan given that the applicant’s family members had refrained from answering his questions regarding that matter during their telephone conversations with him. 27. Between 28 February and 12 March 2012 the applicant was detained at the Kumkapı Foreigners’ Removal Centre. The applicant claimed that the centre had been overcrowded at the time of his detention. He had not been allowed exercise outdoors or any other type of social activity throughout his detention. The applicant further alleged that there had been hygiene problems at the centre and that the quantity of the food provided had also been poor. 28. The Government submitted that the Kumkapı Foreigners’ Removal Centre, where the applicant had been held, had a capacity of 300 persons and that a total of between 100 and 140 persons had been held during the period between 28 February and 12 March 2012. Detainees were accommodated on three floors: the first two floors were reserved for male detainees, and the third floor for females. There were four dormitory rooms on the first floor, respectively measuring 50, 58, 76 and 84 sq. m. On the second floor there were five dormitories measuring 50, 58, 69, 76 and 84 sq. m. There was a total of 120 bunk beds in the ten rooms reserved for male detainees and all rooms received natural light. 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 if the physical conditions and the number of staff available allowed. A doctor was present on the premises every week 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.