CASE OF T. AND A. 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 charge;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
8. The applicants were born in 1966 and 1996 respectively and live in Sheffield, the United Kingdom. 9. On 8 November 2010 the applicants arrived in Turkey from Iran. They were planning to fly to Manchester (the United Kingdom) from Istanbul Atatürk Airport on the next day. 10. At around 11 a.m. on 9 November 2010 the applicants were about to board the plane for Manchester, but were prevented from doing so by officers from the private airport security company. It was alleged that the second applicant’s passport photograph did not resemble him and could belong to someone else. Both applicants were taken to the “problematic passenger room” at the office of the passport police for an examination of the second applicant’s passport. 11. At 4 p.m. on the same day the applicants signed documents entitled “Report of apprehension and custody/rights of suspects and accused persons”, which set out their rights within the context of their arrest. According to the report which the first applicant signed, she had been apprehended on account of “being an accomplice to false identity”. The reports stated that a public prosecutor had been informed of the apprehension. However, the prosecutor did not order that the applicants be taken into police custody. The reports signed by the applicants do not bear the signature of an interpreter. 12. According to a report drafted by two police officers at 4 p.m. the same day, the police asked one of the public prosecutors at the Bakırköy public prosecutor’s office for instructions on how to proceed. The public prosecutor ordered that the photographs, fingerprints and statements of the first applicant, S.T., be taken; that the second applicant, K.A., be transferred to the Bakırköy police station juvenile department and that the passport in question be seized for an examination of its authenticity. 13. The second applicant was kept at the office of the passport police at Atatürk Airport until 10.50 p.m. on 9 November 2010. He was then transferred to the Bakırköy police station juvenile department following the instructions of the public prosecutor, before being sent to the police criminal laboratory in order to establish his identity. 14. On 10 November 2010 the Bakırköy Magistrates’ Court decided to confiscate the second applicant’s passport. 15. On the same day the second applicant was taken to the Bakırköy public prosecutor’s office. His statements were taken by the public prosecutor, who decided to impose an administrative sanction under the Misdemeanors Act and to release him. 16. Later on the same day the police criminal laboratory issued a report establishing the authenticity of the second applicant’s passport. 17. Subsequently, the police received instructions from one of the prosecutors from the Bakırköy public prosecutor’s office to either hand the second applicant over to a family member or transfer him to social services. 18. At around 4 p.m. on 11 November 2010 the second applicant was handed over to one of his relatives, Mr. B.M., who was also the first applicant’s husband. At the same time his passport was given back to him as its authenticity had been proved. 19. Meanwhile, following the arrest of the first applicant at the airport on 9 November 2010, her photograph and fingerprints were taken. At 9 p.m. on the same day she was questioned by two police officers at Istanbul Atatürk Airport with the help of another police officer, who acted as an interpreter. The first applicant was informed that she had been brought to the office of the passport police on suspicion that she had helped the second applicant to travel abroad with a passport which had not belonged to him. In her statements, the applicant maintained that the second applicant was a relative of her husband and that his mother was a British citizen. She denied the veracity of the allegations against her. 20. The first applicant continued to be detained at the airport detention facility until 12 November 2010. 21. At 4 p.m. on 12 November 2010 the first applicant was transferred from the airport detention facility to the Kumkapı Foreigners’ Removal Centre. 22. At 9.20 p.m. on 13 November 2010 the first applicant was deported to the United Kingdom. 23. On 12 November 2010 the applicants’ lawyer lodged a criminal complaint with the Bakırköy public prosecutor’s office against D.Ö., N.G. and Y.A., officers on duty at the time of the applicants’ detention at Istanbul Atatürk Airport. He requested that an investigation be initiated against the aforementioned officers who had abused their power and unlawfully deprived his client of her liberty. The lawyer submitted that the authenticity of the second applicant’s passport had been established and that the first applicant had been detained at the airport without a legal basis. He stressed that if his client had been suspected of having committed an offence, the police should have kept her for only twenty-four hours. He requested that his client be brought before a public prosecutor or be released. In his petition, the lawyer also complained of overcrowding and the material conditions of the airport detention room where his client had been held. 24. On 20 January 2011 the Bakırköy public prosecutor took statements from two police officers who had been on duty at the time of the first applicant’s detention. Both officers maintained that the first applicant had been kept in detention pending her transfer to the Kumkapı Foreigners’ Removal Centre attached to the Istanbul security directorate. 25. On 22 January 2011 the Bakırköy public prosecutor decided not to bring criminal proceedings against those police officers. In his decision, the public prosecutor noted that the first applicant had been subject to a criminal investigation following the instructions of the public prosecutor on duty and that she had been held at the foreigners’ detention centre (misafirhane - guesthouse) at the airport. The public prosecutor considered that the delay in the first applicant’s release had occurred on account of the administrative procedure regarding her deportation and that the police officers had not acted with the intention of committing the offence of abuse of power. 26. On 23 February 2011 the applicants’ lawyer objected to the decision of 22 January 2011. In his petition he brought to the attention of the Assize Court the issues of the alleged unlawfulness of the first applicant’s detention, the absence of information given to the first applicant about her arrest, the unlawfulness of her deportation without being notified by a deportation order and the alleged poor conditions of detention. 27. On 14 March 2011 the Istanbul Assize Court dismissed the first applicant’s objection, holding that the decision of 22 January 2011 had been in accordance with the law. 28. In the meantime, following the criminal complaint lodged by the first applicant, a disciplinary inquiry was initiated into D.Ö., N.G. and Y.A. by the Istanbul security directorate. On 16 February 2011 the Istanbul security directorate decided not to bring disciplinary proceedings against the officers in view of the Bakırköy public prosecutor’s decision of 22 January 2011. In the decision, it was noted that the applicants had been subject to misdemeanour proceedings and that the first applicant had not been in police custody but had been held in the foreigners’ detention centre (misafirhane - guesthouse) at the airport. 29. On 28 February 2011 the applicants’ lawyer objected to the decision of 16 February 2011. In his petition, he submitted the same arguments as those he had submitted to the Istanbul Assize Court on 23 February 2011. 30. On 2 June 2011 the Istanbul Regional Administrative Court held that it did not have jurisdiction to render a judgment on the merits of the first applicant’s objection, given that the decision of 16 February 2011 had not refused authorisation to bring criminal proceedings against the police officers. The court noted that in order to annul the administrative decision in question, the applicant should have lodged an action with the administrative courts. 31. The first applicant claimed that the detention room at Istanbul Atatürk Airport had been overcrowded at the time of her detention, which had lasted seventy-seven hours. She submitted that she had been kept in a room measuring approximately 32 sq. m, which had been divided into two sections by a partition. One of the sections had a window but the other one received no natural light. The applicant claimed that she had been kept in the latter section with at least twenty other people at a time. There was no fresh air and the overcrowding of the room led to problems of hygiene. The applicant also claimed that there had been no furniture in the room suitable for sleeping on, and that in any case it had been impossible to lie down due to the overcrowding. She also claimed that she had had no access to fresh air throughout her detention at the airport and that she had been unable to go to the toilets unless she had been accompanied by officers. 32. The Government maintained that the applicant had been detained in a waiting room located in the legal services department of the airport security directorate. The room in question measured 32 sq. m. It received direct sunlight through windows and had a ventilation system. They noted that the room had a padded sitting area for rest and sleep, and was cleaned every day. The Government contended that detainees used the toilet of the security directorate. According to the Government’s submissions, in total eighty-seven persons were detained in that room between 9 and 12 November 2010. 33. The Government submitted a black-and-white photograph of the room where the first applicant had been detained. The photograph shows two separate areas divided by a partition. The area on the right side of the photograph has two windows, two divans and three chairs. This part of the room appears to be well lit. The left side of the photograph shows a dark area without a window in which there are seven chairs and a divan. Both areas appear to be clean. 34. The Government further submitted two lists to the Court containing the names of the detainees kept in police custody at the Istanbul Atatürk airport detention facility on 9 and 12 November 2010, the reasons for their detention, the nationality of the detainees, and the date and time of their arrest. According to those lists, at 7 p.m. on 9 November 2010 a total of thirty-eight persons were detained at Istanbul Atatürk Airport (thirty-one men and seven women), whereas at 8 a.m. on 12 November 2010, there were forty-nine detainees in custody (thirty-seven men and twelve women). The first applicant’s name appears on the list of 9 November 2010 but not on the list dated 12 November 2010.