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SECOND
SECTION
CASE OF DBOUBA v. TURKEY
(Application
no. 15916/09)
JUDGMENT
STRASBOURG
13
July 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Dbouba v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Danutė
Jočienė,
András Sajó,
Nona
Tsotsoria,
Işıl Karakaş,
Kristina
Pardalos, judges,
and Stanley Naismith, Deputy
Section Registrar,
Having
deliberated in private on 22 June 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 15916/09) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Tunisian national, Mr Saafi Ben Fraj Dbouba
(“the applicant”), on 24 March 2009.
- The
applicant, who had been granted legal aid, was represented by Mr M.
Sfar, the president of the Collectif de la Communauté
Tunisienne en Europe, a non-governmental organisation in Paris.
Mr Sfar was approved by the President of the Chamber to
represent the applicant in the proceedings before the Court pursuant
to Rule 36 § 4 (a) of the Rules of Court. The Turkish Government
(“the Government”) were represented by their Agent.
- On 24 March 2009 the acting
President of the Chamber to which the case had been allocated
decided, in the interests of the parties and of the proper conduct of
the proceedings before the Court, to indicate to the Government of
Turkey, under Rule 39 of the Rules of Court, that the applicant
should not be deported to Tunisia until
the Court comes to a conclusion regarding the application.
- On
24 June 2009 the President of the Second Section decided to give
notice of the application to the Government. It was also decided that
the admissibility and merits of the application would be examined
together (Article 29 § 3) and that the case would be given
priority (Rule 41).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1967 and is currently being held in the
Gaziosmanpaşa Foreigners' Admission and Accommodation Centre in
Kırklareli.
A. The applicant's arrival in Turkey and the criminal
proceedings brought against him
- In
1986 the applicant became an active sympathiser of the Islamic
Tendency Movement, an illegal organisation in Tunisia. In 1989 the
organisation was renamed Ennahda.
He was arrested and questioned by the police on various occasions. As
a result of persecution by Tunisian security forces, the applicant
left Tunisia in 1990 and arrived in Syria, via Libya and Egypt. In
1992 he went to Italy and in 1994 he returned to Syria.
- According
to the applicant's submissions, in 1996, when the applicant went to
the Tunisian consulate in Damascus, Syria, to renew his passport, he
was detained and questioned by Tunisian officials there.
Subsequently, he left Syria and arrived in Turkey.
- Between
1996 and 2007 the applicant lived in the province of Şanlıurfa
without a residence permit.
- On
19 June 2007 the applicant was arrested by officers from the
Anti Terrorist Branch of the Şanlıurfa Police
Headquarters within the context of a police operation conducted
against al-Qaeda. On 20 June 2007 he was transferred to the Bursa
police headquarters. On 22 June 2007 the Bursa Magistrates' Court
ordered his pre-trial detention.
- On
9 August 2007 the Istanbul public prosecutor filed a bill of
indictment with the Istanbul Assize Court, charging the applicant and
twenty-two others with membership of al-Qaeda. As regards the
applicant, the public prosecutor noted that he was protected by
another suspect, the person who was responsible for the Bursa area,
and gave Arabic lessons to members of al-Qaeda.
- On
24 January 2008 the Istanbul Assize Court held the first hearing on
the merits of the case. During the hearing the applicant made
statements to the effect that his asylum request had been rejected at
the end of 1996 and he had been living in Turkey for more than ten
years. He further maintained that he had not been involved in the
activities of al-Qaeda and that he could not return to Tunisia
because he risked ill-treatment and the death penalty in his home
country. At the end of the hearing, the court decided to release the
applicant pending trial. The court however banned the applicant from
leaving the country.
- According
to the information in the case file, the criminal proceedings against
the applicant are still pending before the first-instance court.
B. Deportation proceedings
- On
an unspecified date the applicant reapplied to the Office
of the United Nations High Commissioner for Refugees (“the
UNHCR”) and requested to be recognised as a refugee.
- Following
his release from pre-trial detention and prior to his placement in a
foreigners' admission and accommodation centre, on 25 January
2008 the applicant was questioned by two police officers at the
foreigners' department of the Kocaeli police headquarters. According
to the document containing his statements, the applicant was informed
that a procedure for his deportation had been initiated. He was then
asked to make statements as to his application to the UNHCR. The
applicant maintained that his lawyer had contacted the UNHCR on his
behalf and that he had been interviewed by the UNHCR on 18 January
2008. The applicant further contended that he did not wish to be sent
to Tunisia, as he risked the death penalty and ill-treatment in his
country of origin.
- On
5 March 2008 the director of the department responsible for
foreigners, borders and asylum attached to the General Police
Headquarters requested the Kocaeli governor's office to ensure the
applicant's removal from Turkey. The applicant could not however be
deported, on account of the decision of the Istanbul Assize Court
banning him from leaving Turkey.
- On
17 October 2008 the deputy director of the Kocaeli police
headquarters requested the Istanbul Assize Court to annul its
decision banning the applicant from leaving the country. He stated in
his letter that the applicant had provoked others in the Centre and
had started a protest by not accepting the meals served. The deputy
director also noted that the applicant was a person liable to be
deported under Article 19 of Law no. 5683.
- On
3 December 2008 the applicant was recognised as a refugee under the
UNHCR mandate.
- On
23 December 2008 the applicant made an official application to the
Ministry of the Interior for temporary asylum in Turkey. He was
interviewed by officials from the Ministry of
the Interior about his request between 9 and 12 November 2009, but
has not been informed of the outcome of that interview.
- In
the meantime, on 22 January 2009 the Istanbul Assize Court set aside
its decision of 24 January 2008.
- According
to the Government's submissions, the
procedure for the applicant's deportation had been re-initiated
following the decision of the Istanbul Assize Court of 22
January 2009. However, the procedure was suspended due to the
application of the Rule 39 measure. The Government maintained that
the applicant had been living in Turkey without seeking asylum. He
had sought asylum only after it had been decided to remove him from
Turkey. His request for temporary asylum was rejected since he was a
suspected al-Qaeda member and therefore his presence in Turkey
endangered national security and public order.
- According
to a letter of 14 September 2009 written by Mr Rashid Ghannouchi, one
of the founders and the chairman of Ennahda,
the applicant is a member of the Ennahda Party of Tunisia and would
be at risk of imprisonment and torture if removed to Tunisia on
account of his affiliation with that organisation.
C. The applicant's placement in
the Kocaeli police headquarters and the Kırklareli
Foreigners' Admission and Accommodation Centre
- The
applicant was placed in the anti-terrorist branch of the Kocaeli
police headquarters following the decision of the Istanbul Assize
Court dated 24 January 2008 (see paragraph 11 above).
- On
11 March 2008 the applicant was transferred to Kırklareli
Foreigners' Admission and Accommodation Centre, where he is currently
being held.
- As
regards the conditions in which he was kept in the Kocaeli
and Kırklareli facilities, the applicant submitted that in
Izmit he had been kept in a 9 sq.m cell where there were two benches
of 0.75 x 0.90 metres. He had to call the warders when he needed to
go to the toilet. He was given a meal once a day and did not have the
right to leave his cell. During his detention in Izmit he had no
access to his family or his lawyer. He therefore started a hunger
strike, as a result of which he was allowed to see his lawyer three
times.
- As
to the Kırklareli Foreigners' Admission and Accommodation
Centre, the applicant maintained that he had been held in a 16 sq.m
room with three other detainees. He was provided with meals three
times a day. However, the food was of very poor quality. There was no
drinkable water and therefore he was obliged to buy mineral water. He
also noted that the detainees were not provided with any hygiene or
cleaning products and that the warders had an aggressive attitude
towards the detainees.
- The
Government submitted that the applicant was held in satisfactory
material conditions in Kocaeli Police Headquarters and the
Kırklareli Centre, where he was accommodated.
II. RELEVANT LAW AND PRACTICE
- A
description of the relevant domestic law and
practice can be found in the case of Abdolkhani
and Karimnia v. Turkey (no.
30471/08, §§ 29-44, 22 September 2009).
- A
description of the situation of Ennahda
members in Tunisia can be found in Saadi
v. Italy ([GC] (no. 37201/06, §§
65-79, ECHR 2008 ...).
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE
CONVENTION
- The applicant complained under Article 3 of the
Convention that his removal to Tunisia would
expose him to a real risk of torture and other forms of ill treatment
on account of his affiliation with Ennahda.
He further submitted, without relying on
any Article of the Convention, that he had not been interviewed by
the competent authorities regarding his asylum request until November
2009, and has not been informed of the outcome of that interview. The
applicant also contended that he was not able to challenge the
decision to deport him as he had not been informed of any deportation
order made in his respect.
- The Court considers that the
second limb of the applicant's aforementioned complaints should be
examined from the standpoint of Article 13 of the Convention.
A. Admissibility
- The
Government submitted that the applicant had failed to exhaust the
domestic remedies available to him, within the meaning of Article 35
§ 1 of the Convention. They maintained in this connection that
the applicant could and should have applied to the administrative
courts and requested that the decision of the refusal
of the domestic authorities to refuse
him temporary asylum be set aside, as should the decision to deport
him taken in accordance with Article 125 of the Constitution.
- The
applicant submitted that he could not have challenged decisions which
had not been served on him.
- The
Court reiterates that it has already examined and dismissed an
identical objection by the respondent Government in the case of
Abdolkhani and Karimnia (cited above, §§ 56-59). The
Court finds no particular circumstances in the instant case which
would require it to depart from this jurisprudence. The Court
accordingly rejects the Government's objections.
- The
Court observes that the application is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
- The
Government submitted that the applicant's request for temporary
asylum had been examined and rejected by the competent authorities.
They noted in this connection that the applicant had not sought
asylum for several years, despite the fact that he had been living in
Turkey all that time. They submitted that the applicant had also
travelled to Tunisia twenty-nine times in 1995 and 1996. In support
of their submissions, the Government submitted a document which
stated that the applicant had left Turkey from Hatay, the city
situated on the border between Turkey and Syria. The Government
further maintained that the applicant was accused of being a member
of al Qaeda and that he therefore posed a threat to national
security and public order in Turkey. The
Government considered that the applicant's removal to Tunisia would
not expose him to any risk.
- The
Government further reiterated that the applicant could have applied
to administrative courts and requested that the decisions taken in
his respect in accordance with Article 125 of the Constitution be set
aside. In support of their claim, the Government submitted copies of
four Supreme Administrative Court decisions upholding first-instance
court judgments annulling deportation orders issued in respect of
four asylum seekers.
- The
applicant disputed the Government's submissions. He insisted that he
had not been a member of a terrorist organisation but of Ennahda.
The applicant further contended that he
had applied to the UNHCR, requesting refugee recognition as early as
1997. He also noted that during 1995 and 1996 he had gone not to
Tunisia but to Syria, since during those years he had been exporting
textile products from Turkey to Syria. The applicant submitted that
he had applied to the Turkish authorities immediately after he had
been recognised as a refugee by the UNHCR. He noted in this
connection that, despite the Government's submissions regarding the
rejection of his temporary asylum request, he was interviewed by
officials from the Ministry of the Interior in relation to his
temporary asylum request between 9 and 12 November 2009. He was not
however informed of the outcome of this interview (paragraph 18
above). The applicant finally submitted that he could not challenge
the deportation decision and the decision rejecting his asylum claim,
since they had not been served on him.
- As
regards the applicant's submissions under Article 3 of the
Convention, the Court observes at the outset that the applicant
claimed that he was a member of Ennahda and submitted a
document according to which one of its founders, the chairman of
Ennahda, had stated that the applicant was a member of the
Ennahda Party of Tunisia and that he would be at risk of imprisonment
and torture if returned to Tunisia on account of that affiliation.
The Court further observes that the Government did not challenge the
veracity of these allegations. The Court therefore finds no reason to
doubt that the applicant was a member of Ennahda in Tunisia.
- In
this connection the Court reiterates that, in the aforementioned
Saadi judgment,
it observed that the reports of Amnesty International and Human
Rights Watch on Tunisia described a disturbing situation. It noted
that those reports mentioned numerous and regular cases of torture
and ill treatment meted out to persons accused of terrorism (see
Saadi,
cited above, § 143). The Court sees no ground to depart from its
findings in the Saadi
judgment in the present case.
- The
Court further observes that, when the applicant made statements
before the Istanbul Assize Court on 24 January 2008 and to the police
on 25 January 2008, he mentioned that he did not wish to return
to Tunisia as he risked being subjected to ill-treatment there.
Before the police, he further noted that he had reapplied to the
UNHCR. However, according to documents dated 5 March and 17 October
2008, the national authorities planned his deportation without an
examination of his statements. Furthermore, the Government did not
reply to the applicant's submissions that he had not been interviewed
in relation to his temporary asylum claim before
November 2009. Nor did they submit the documents relevant to
this examination. They only submitted that the applicant's request
for temporary asylum had been rejected since he was a suspected
al-Qaeda member and, therefore, his presence in Turkey endangered
national security and public order. The Court reiterates the
absolute nature of Article 3 of the Convention: it is not possible to
weigh the risk of ill treatment against the reasons put forward
for the expulsion in order to determine whether the responsibility of
a State is engaged under Article 3, even where such treatment is
inflicted by another State. The conduct of the person concerned,
however undesirable or dangerous, cannot be taken into account
(see Chahal v. the United Kingdom, 15 November 1996, §
81, Reports of Judgments and Decisions 1996 V; Saadi,
cited above, § 138; Abdolkhani and Karimnia, cited
above, § 91).
- In
these circumstances the Court is not persuaded that the national
authorities examined his claims and took into account the
requirements of Article 3 of the Convention. It fell to the branch
office of the UNHCR to interview the applicant about the background
to his asylum request and to evaluate the risk to which he would be
exposed on the ground of his political opinions.
- The
Court for its part must give due weight to the UNHCR's conclusion on
the applicant's claim regarding the risk he would face if he were to
be removed to Tunisia (see Jabari v. Turkey, no. 40035/98,
§ 41, ECHR 2000 VIII; NA. v. the United Kingdom,
no. 25904/07, § 122; Abdolkhani and Karimnia, cited
above, § 82). The Court observes in this connection that, when
the UNHCR interviewed the applicant, it had the opportunity to test
the credibility of his fears and the veracity of his account of the
circumstances in his home country. Following this interview, it found
that the applicant risked persecution in his country of origin.
- In
the light of the UNHCR's assessment, the Court finds that there are
substantial grounds for accepting that the applicant risks a
violation of his rights under Article 3, if returned to his country
of origin.
- As
to the applicant's complaint under Article 13 of the Convention, the
Court notes that it is has already found that the applicant's
allegations regarding the risk of ill-treatment and death in Tunisia
had not been subject to a meaningful examination by the national
authorities (see paragraph 41 above). Moreover, the Government failed
to demonstrate that the applicant had been served with the decision
rejecting his temporary asylum claim and the deportation order. The
Court cannot attach weight to their submission that the applicant had
been informed about the deportation procedure on 25 January
2008, since they failed to show that there had actually been a
written decision served on him. Besides, following the re-initiation
of the deportation procedure on 22 January 2009, the authorities once
again failed to notify the applicant. Nor was the applicant ever
served with the decision apparently refusing his temporary asylum
request. In these circumstances, the Court is led to conclude that
the applicant was not afforded an effective and accessible
remedy in relation to his allegations that he risked ill-treatment
and death in Tunisia. Finally, as regards the
Government's submission that the applicant could have applied to the
administrative courts, the Court reiterates that the judicial review
of deportation cases in Turkey, as currently practised, cannot be
regarded as an effective remedy, since an application for the
annulment of a deportation order does not have automatic suspensive
effect (see Abdolkhani and Karimnia,
cited above, § 116).
- Consequently,
the Court concludes that there would be a violation of Article 3 of
the Convention if the applicant were to be removed to Tunisia. It
further concludes that there has been a violation of Article 13 of
the Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
- The
applicant complained under Article 5 § 1 of the Convention that
his detention was unlawful. He further contended under Article 5 § 2
of the Convention that he had not been informed of the reasons for
his detention from 25 January 2008 onwards. The applicant also
maintained under Article 5 § 4 of the Convention that he was not
able to challenge the lawfulness of his detention. The applicant
finally submitted under Article 5 § 5 of the Convention that he
could not claim compensation for the aforementioned violations of
Article 5.
A. Admissibility
- The Court notes that this part of the
application is not manifestly ill founded within the meaning of
Article 35 § 3 of the Convention. It further notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
1. The parties' submissions
- The
Government maintained that the applicant was accommodated
in the Kırklareli Foreigners' Admission and Accommodation
Centre. The reason for the applicant's placement in this centre was
the authorities' need for his surveillance pending deportation
proceedings. The Government contended that this practice was
based on section 23 of Law no. 5683 and section 4 of Law no.
5682. They further contended that the applicant had been informed of
his situation on 25 January 2008, when he had been questioned by the
police following his release pending trial. As regards the
applicant's complaints under Article 5 §§ 4 and 5, the
Government submitted that the applicant could have applied to the
administrative courts.
- The
applicant submitted that he was detained and that his detention did
not have a sufficient legal basis in domestic law. He further
maintained that the document containing his police statements of 25
January 2008 could not be considered as a notification of the reasons
for his detention, since there was no reference to his subsequent
detention in this document. The applicant repeated that he could
neither challenge the lawfulness of his detention nor claim
compensation for infringements of his rights under Article 5 §§
1, 2 and 4 before the national courts.
2. The Court's assessment
a. Article 5 § 1 of the Convention
- The
Court reiterates that it has already examined the same
grievance in the case of Abdolkhani and Karimnia (cited above,
§§ 125-135). It found that the placement of the applicants
in the Kırklareli Foreigners' Admission
and Accommodation Centre in that case constituted
a deprivation of liberty and concluded that, in
the absence of clear legal provisions establishing the procedure for
ordering and extending detention with a view to deportation and
setting time-limits for such detention, the deprivation of liberty to
which the applicants were subjected was not “lawful” for
the purposes of Article 5 of the Convention.
- The
Court has examined the present case and finds no particular
circumstances which would require it to depart from this previous
case-law. There has therefore been a violation of Article 5 § 1
of the Convention.
b. Article 5 §§ 2, 4 and 5 of
the Convention
- The Court observes that,
according to the document referred by the Government dated 25 January
2008, two police officers took the applicant's statements in relation
to his application to the UNHCR. The applicant was told that he had
been released pending trial on the charge of membership of al-Qaeda
and that a deportation procedure had been initiated in his respect.
The document in question does not contain any information as to the
grounds for the applicant's detention in the Kocaeli police
headquarters. In the absence of any other document in the case file
to show that the applicant was formally notified of the grounds for
his detention, the Court is led to the conclusion that the reasons
for the applicant's detention from 25 January 2008 onwards were
never communicated to him by the national authorities (see Abdolkhani
and Karimnia, cited above, §
138).
- The
Court further observes that the Government did not make any
submission relevant to the present case demonstrating that the
applicant had had at his disposal any procedure by which the
lawfulness of his detention could have been examined by a court and
which allowed him to claim compensation for the violation of his
rights enshrined under Article 5 §§ 1, 2 and 4. They merely
submitted that foreigners in Turkey had the right to lodge actions
with administrative courts in accordance with Article 125 of the
Constitution. Nor have they provided the Court with any example where
administrative courts speedily examined and ordered the release of an
asylum seeker on grounds of unlawfulness and granted compensation for
his or her unlawful detention.
-
Moreover, the Court has already found that the applicant was not
informed of the reasons for the deprivation of his liberty from 25
January 2008 onwards (see paragraph 52 above). It considers that this
fact in itself meant that the applicant's right of appeal against his
detention was deprived of all effective substance (see Abdolkhani
and Karimnia, cited above, § 141; Shamayev and Others v.
Georgia and Russia, no. 36378/02, § 432,
ECHR 2005 III). Accordingly, the Court concludes
that the Turkish legal system did not provide the applicant with a
remedy whereby he could obtain judicial review of the lawfulness
of his detention within the meaning of Article 5 § 4 of the
Convention (see S.D. v. Greece, no.
53541/07, § 76, 11 June 2009).
- In
the light of the above, the Court concludes that there has been a
violation of Article 5 §§ 2, 4 and 5 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
WITHIN THE CONTEXT OF THE APPLICANT'S DETENTION
- The
applicant complained, without relying on any Article of the
Convention, that the conditions of his
detention in the Kocaeli Police Headquarters and the Kırklareli
Foreigners' Admission and Accommodation Centre were poor.
The
Court considers that this part of the application should be examined
from the standpoint of Article 3 of the Convention.
- The
Government contested the applicant's argument.
- In
so far as the applicant's allegations concern the conditions of his
detention in the Kocaeli Police Headquarters
and in the absence of any procedure in domestic law, the Court
observes that the applicant was transferred to the Kırklareli
centre on 11 March 2008, while the application was lodged with
the Court on 24 March 2009. This part of the application has
therefore been introduced out of time and must be rejected in
accordance with Article 35 §§ 1 and 4 of the
Convention.
- In so far as the applicant's allegations concern the
detention conditions in the Kırklareli Foreigners' Admission and
Accommodation Centre, where the applicant is currently being held,
the Court notes that it has already examined almost identical
allegations and found that the material conditions in that centre
were not so severe as to bring them within the scope of Article 3 of
the Convention (see, for example, Z.N.S. v. Turkey, no.
21896/08, §§ 79-87, 19 January 2010).
- Having
examined the parties' submissions, the Court considers that the
applicant has not put forward any new argument capable of persuading
it to reach a different conclusion in the present case. It follows
that this part of the application is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant claimed 12,500 euros (EUR) in respect of
pecuniary damage for loss of income during the
time spent in detention. He further claimed a total of EUR
235,000 in respect of non-pecuniary damage he had suffered as a
result of violations of his rights under Articles 3 and 5 of the
Convention.
- The
Government contested these claims, submitting that they were
unsubstantiated and excessive.
- The Court does not discern any causal link between the
violations found and the pecuniary damage alleged; it therefore
rejects this claim. However, it considers that the applicant must
have suffered non pecuniary damage which cannot be compensated
solely by the finding of violations. Having regard to the gravity of
the violations and to equitable considerations, it awards the
applicant EUR 11,000 for non-pecuniary damage.
- The Court further considers,
having regard to the particular circumstances of the case, to its
finding of a violation of Article 5 § 1 of the Convention and to
the urgent need to put an end to that violation, that the respondent
State must secure the applicant's release at the earliest possible
date (see Assanidze v. Georgia
[GC], no. 71503/01, §§ 201-203,
ECHR 2004-II).
B. Costs and expenses
- The
applicant claimed a total of EUR 6,000 for the legal fees of his
representative in Turkey, EUR 5,250 for his legal representation
before the Court and EUR 262 for telephone, fax and postal
expenditure. In support of his claims, the applicant submitted two
bills of costs prepared by his representatives.
- The
Government contested these claims, noting that only costs actually
incurred could be reimbursed.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,000 for costs and
expenses in the domestic proceedings and EUR 3,000 for the
proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints
under Articles 3 and 13 of the Convention (in relation to the
deportation proceedings), as well as the complaints under Article 5
§§ 1, 2, 4 and 5 of the Convention, admissible and
the remainder of the application inadmissible;
- Holds that the applicant's
deportation to Tunisia would be in violation of Article 3 of the
Convention;
- Holds
that there has been a violation of Article 13 of the Convention, in
relation to the applicant's complaint under Article 3 of the
Convention;
- Holds that there has been a violation of Article
5 §§ 1, 2, 4 and 5 of the Convention;
- Holds
(a) that
the respondent State must secure the applicant's release at the
earliest possible date;
(b) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, the following
amounts, to be converted into Turkish liras (TRY) at the rate
applicable on the date of settlement:
(i) EUR
11,000 (eleven thousand euros) in respect of non pecuniary
damage, plus any tax that may be chargeable;
(ii) a
total of EUR 4,000 (four thousand euros) in respect of costs and
expenses, plus any tax that may be chargeable to the applicant;
(c) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period, plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 13 July 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Deputy
Registrar President
