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SECOND
SECTION
CASE OF RANJBAR AND OTHERS v. TURKEY
(Application
no. 37040/07)
JUDGMENT
STRASBOURG
13 April 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 Ranjbar and Others
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
András
Sajó,
Işıl Karakaş,
Nona
Tsotsoria, judges,
and Françoise Elens-Passos,
Deputy Section Registrar,
Having
deliberated in private on 23 March 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 37040/07) 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 five Iranian nationals, Mr Alireza Ranjbar,
Mr Pejman Piran, Mr Abolfazl Ajorlu, Mr
Seyid Ali Alemzadeh and Mr Mostaba Naderani Vatanpur
(“the applicants”), by an e-mail sent in the evening of
Friday 24 August 2007.
- The
applicants were represented by Mr S. Efe and Mr V.R. Turgut,
lawyers practising in Ankara and Van respectively. Their forms of
authority were issued by the applicants' immediate relatives in Iran
and Iraq. The Turkish Government (“the Government”) were
represented by their Agent.
- The
applicants' representative alleged that his clients' deportation to
Iran would subject them to ill-treatment and torture and that they
were not afforded protection under Article 5, in particular as they
had been unlawfully detained for a period of more than six days and
had no means to challenge the lawfulness of their detention.
- A
request for an interim measure under Rule 39 of the Rules of Court
was processed on Monday 27 August 2007, and the applicants'
representative was asked to submit additional supporting information.
In the morning of 28 August 2007 the Acting President of the Chamber
to which the case had been allocated initially decided to apply Rule
40 (urgent notification of an application) until the requisite
information was provided. Following the submission of this
information on the same day, the President
subsequently indicated to the Government, under Rule 39, that the
applicants should not be deported to Iran until further notice.
- On 4 September 2007 the
respondent Government informed the Court that the applicants had
already been deported to Iraq on 22 August 2007, two days before the
Rule 39 request had been filed by their representative. The interim
measure was consequently lifted on 6 September and further
information concerning the applicants' deportation was requested from
the respondent Government.
- On
9 April 2008 the applicants' representative informed the Court that
the applicants had been resettled in Sweden and wished to pursue
their application. Forms of authority issued by the second, third and
fourth applicants were subsequently submitted, but the applicants'
representative informed the Court on 1 October 2009 that he had not
been able to contact the first and fifth applicants.
- On
13 May 2008 the Court decided to give notice of the application to
the Government. It also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were born in 1972, 1982, 1985, 1978
and 1983 respectively and currently live in Sweden.
- The
applicants fled Iran and entered Turkey illegally on various dates in
2005 and 2006.
- On
various dates between 19 April 2005 and 3 October 2006, the
applicants appeared at the office of the United Nations High
Commissioner for Refugees (“the UNHCR”) in Turkey, which
recognised their refugee status and issued them with refugee
certificates on 24 August 2007.
- On
unspecified dates the applicants lodged asylum applications with the
Turkish authorities and sought residence permits. They were
questioned twice by police officers from the Aliens Department on
various dates in November 2006 for an assessment of their asylum
request. During the questioning the applicants stated that they had
been members of different illegal organisations and had been involved
in anti-regime activities in Iran. They had either been detained on
numerous occasions or sentenced to imprisonment and/or punishment by
lashing. They all maintained that they would face a personal risk of
ill-treatment or death if they were to be returned to Iran.
- The
applicants were permitted to live in Van pending the asylum
proceedings and were allowed to leave the city boundaries subject to
specific permission. In this connection one of the applicants
(Mostaba Naderani Vatanpur) was issued with a
permit allowing him to travel to Ankara between 22 and 31
August 2007 for various resettlement interviews.
- On
an unspecified date the applicants' asylum request was rejected by
the authorities on the ground that they had not complied with the
relevant criteria. In respect of the fourth applicant, the interview
forms indicated that the authorities did not find the applicant's
replies credible and considered that he had left his country for
higher economic standards.
- On
an unspecified date the applicants were apprehended and held at the
Van Security Directorate for an undetermined period before they were
notified of the deportation orders on 22 August 2007 at 12.30 p.m.
The deportation orders bear the signatures of the applicants and a
translator. The applicants were deported to Iraq on the same day.
-
Upon their arrival in Iraq the applicants claimed to have been held
in detention for about a month. They then had lived in Northern Iraq
for some five months before they were resettled in Sweden on
10 February 2008.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- A
description of the relevant domestic law can be found in the Court's
judgment in the case of Abdolkhani and Karimnia v. Turkey
(no. 30471/08, §§ 29-45, 22
September 2009).
THE LAW
I. SCOPE OF THE CASE
A. In respect of the first and fifth applicants
- The Court notes that the applicants' representative
informed it on 1 October 2009 that he had
not been able to contact the first and fifth applicants (Mr
Alireza Ranjbar and Mr Mostaba Naderani
Vatanpur).
- The Court considers that, in these circumstances,
these applicants may be regarded as no longer wishing to pursue their
application, within the meaning of Article 37 § 1 (a) of the
Convention. Furthermore, in accordance with Article 37 § 1 in
fine and bearing in mind that the applicants are resettled in
Sweden, the Court finds no special circumstances regarding respect
for human rights as defined in the Convention and its Protocols which
require the continued examination of the case.
- In view of the above, the Court holds that it is
appropriate to strike the application out of the list of cases in
respect of the first and fifth applicants. The Court will therefore
confine its examination of the case in respect of the second, third
and fourth applicants.
B. In respect of the remaining applicants
- The Court observes that, following the communication
of the present case to the respondent Government, further new
complaints under Articles 3 and 6 of the Convention
as well as under Article 1 of Protocol No. 7 were submitted on 2
February 2009, concerning in particular the conditions of the
applicants' detention both in Turkey and Iraq and the lack of
procedural safeguards.
- The Court considers that the new complaints raised
under Articles 3 and 6 do not elaborate on the applicants'
original complaints and relate to events which occurred more than six
months before the initial complaints were lodged with the Court on 24
August 2007. The Court reiterates that, when a new complaint is
raised for the first time during the proceedings before the Court,
the running of the six-month period is not interrupted until this
complaint is actually lodged (see Sarl Aborcas and Borowik
v. France (dec.), no. 59423/00, 10 May 2005, and Loyen v.
France (dec.), no. 46022/99, 27 April 2000). The Court
therefore rejects them in accordance with Article 35 §§ 1
and 4 of the Convention (Hazırcı and Others v. Turkey,
no. 57171/00, § 54, 29 November 2007).
- The
Court further observes that Turkey has not ratified Protocol No. 7.
It follows that this part of the complaints is incompatible ratione
personae with the provisions of the Convention and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE
CONVENTION
- The
applicants initially complained under Articles 2 and 3 that their
deportation to Iran would expose them to ill-treatment and even
death. Following their deportation to Iraq and resettlement in
Sweden, the applicants maintained the same complaints and asserted
that they had lived in fear that the Iraqi authorities could return
them to Iran.
- The
Government contended that the applicants had not exhausted domestic
remedies and that they had not been deported to Iran at any point in
time and therefore lacked victim status. The applicants had been
deported to Iraq with due respect for the principle of
non-refoulement.
- The
Court notes that the applicants are currently resettled in Sweden.
They had already been deported to Iraq on 22 August 2007, two days
before the matter was brought before the Court. In other words, there
was no interim measure in force at the time of the applicants'
deportation and, therefore, the Government's consequent
responsibility under Article 34 had not been engaged.
- In view of the fact that the applicants' complaints
under this heading concerned their possible deportation to Iran,
which did not take place, and that they currently live in Sweden, the
Court holds that the applicants can no longer claim to be victims,
within the meaning of Article 34, as far as their complaints under
Articles 2 and 3 of the Convention are concerned (see, mutatis
mutandis, Mohammedi v. Turkey (dec.), no. 3373/06,
30 August 2007, and Ayashi v. Turkey (dec.), no.
3083/07, 18 November 2008).
- It
follows that this part of the application is manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and
4.
III. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicants asserted that they ought to have been allowed to benefit
from the protection of Article 5 in general during their detention.
They complained in particular that they had been detained for a
period of more than six days and had no means to challenge their
detention in breach of Article 5 §§ 3 and 4 of the
Convention.
- The
Court which is the master of the characterisation to be given in law
to the facts of the case (see Castravet v. Moldova, no.
23393/05, § 23, 13 March 2007) finds that the
complaints at issue fall to be examined under Article 5 §§
1 and 4 of the Convention.
- On
communication of the application to the respondent Government, a
further question was raised by the Court concerning compliance with
Article 5 § 2 of the Convention with regard to the
notification to the applicants of the reasons for their deprivation
of liberty.
A. The parties' submissions
- The
Government contested the complaints and contended that the applicants
had not been arrested or detained but had been held as an
administrative measure prior to deportation, in conformity with
Article 5 § 1 (f) of the Convention. The
applicants had been involved in activities against the Iranian
administration during their stay in Turkey and for reasons of
national security their residence in Turkey had not been deemed
appropriate by the Turkish authorities. The legal grounds for their
deprivation of liberty were sections 19 and 23 of the Act on the
Residence and Travel of Foreigners in Turkey (Law no. 5683) and
section 8 of the Passport Act (Law no. 5682). As to the complaint
under Article 5 § 2 of the Convention, deportation orders had
been issued in conformity with Article 32 of the 1951 Convention
relating to the Status of Refugees (“the Geneva Convention”)
and the applicants had been notified of the deportation orders in the
presence of a translator. Regarding the complaint under Article 5 §
4 of the Convention, the Government submitted that the applicants had
had the right to object against the deportation orders before the
relevant authorities, failing which they could have brought
complaints before the administrative courts. They had been aware of
the domestic procedure but had not made use of it.
- The
Government did not make any submissions as to the Court's specific
questions regarding the national-security grounds which had prompted
the authorities to issue deportation orders in respect of the
applicants, the overall length of the applicants' deprivation of
liberty and the manner of their deportation.
- The
applicants contended that they had been unlawfully detained for a
period of six days before their deportation on 22 August 2007. They
asserted that official records indicating the date, time and location
of their detention, the grounds for it and the name of the arresting
officer had not been kept by the authorities. Additionally, they had
not been allowed to see their lawyers during this period.
Furthermore, neither they nor their lawyers had received an official
letter indicating the reasons for their detention.
B. The Court's assessment
1. Admissibility of Article 5 §§ 1, 2 and 4
- The
Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention and that
they are not inadmissible on any other grounds. They must therefore
be declared admissible.
2. Merits
(a) Article 5 § 1
- The
Court observes that the Government did not contest that the
applicants had been held at the Van Security Directorate. According
to the Government, the applicants had been held as an administrative
measure for deportation purposes and there had therefore not been any
need for them to be brought before a judge.
- The
Court considers that, whether for administrative or any other
purposes and irrespective of its length, the applicants' forced
placement at the Van Security Directorate under the given
circumstances amounted to a “deprivation of liberty” with
a view to their deportation.
- The Court points out that Article 5 § 1 of the
Convention circumscribes the circumstances in which individuals may
be lawfully deprived of their liberty, it being stressed that these
circumstances must be given a narrow interpretation having regard to
the fact that they constitute exceptions to a most basic guarantee of
individual freedom (see Quinn v. France, 22 March 1995, §
42, Series A no. 311). By laying down that any deprivation of liberty
should be “in accordance with a procedure prescribed by law”,
Article 5 § 1 requires, firstly, that any arrest or detention
should have a legal basis in domestic law (see Amuur v. France,
25 June 1996, § 50, Reports of Judgments and Decisions
1996 III). The Convention here refers essentially to national
law and establishes the need to apply its rules, but it also requires
that any measure depriving the individual of liberty must be
compatible with the purpose of Article 5, namely to protect the
individual from arbitrariness (see Ashingdane v. the United
Kingdom, 28 May 1985, § 44, Series A no. 93). What is
at stake here is not only the “right to liberty” but also
the “right to security of person”.
- “Lawfulness” and “absence of
arbitrariness” are common requirements for the whole of Article
5 of the Convention, including
Article 5 § 1 (f). In this connection, particular
safeguards against arbitrariness, such as the recording of accurate
holding data concerning the date, time and location of detainees, as
well as the grounds for the detention and the name of the persons
effecting it, are necessary for the detention of an individual to be
compatible with Article 5 § 1 (see Yasin Ateş v. Turkey,
no. 30949/96, § 142, 31 May 2005). These rules apply
equally for anyone who is deprived of their liberty, whether for
administrative, criminal or any other purposes.
- The
Court therefore first needs to establish whether the requirements of
“lawfulness” and the “absence of arbitrariness”
were met before moving on to examine the issue of whether the
applicants' deprivation of liberty was governed by the exceptions set
out in Article 5 § 1 (f) of the Convention.
- The
Court notes in the instant case that the legal
provisions referred to by the respondent
Government (see paragraph 30 above) provide that foreigners
who do not have valid travel documents or who cannot be deported are
obliged to reside at places designated by the Ministry of the
Interior. These provisions do not refer to a deprivation of liberty
in the context of deportation proceedings. They concern the residence
of certain groups of foreigners in Turkey, but not their detention.
Nor do they provide any details as to the conditions for ordering and
extending detention with a view to deportation, or set time-limits
for such detention.
- The
Court finds that the applicants' deprivation of liberty, irrespective
of its duration, did not have a sufficient legal basis in the
particular circumstances (see Abdolkhani and Karimnia, cited
above, § 133).
- The
Court further notes that the Government were requested to submit the
applicants' deportation files and provide specific information as to
the periods of detention, the overall length of their deprivation of
liberty and the manner of their deportation. Among the documents
submitted in reply, the Court observes that there are no records of
holding data showing the date, time and location of the applicants'
detention. It is not clear when, where and by whom exactly the
applicants were apprehended and how long they had actually been
deprived of their liberty before they were deported. The case file
further contains no information regarding when and how the applicants
were deported. In other words, there exists no information regarding
the termination of the applicants' deprivation of liberty while they
were still under the control of the Turkish authorities.
- In
view of the above, the Court finds that the deprivation of liberty to
which the applicants were subjected did not have a strictly-defined
statutory basis circumscribed by adequate safeguards against
arbitrariness (see Nasrulloyev v. Russia, no. 656/06, §
77, 11 October 2007; Chahal v. the United Kingdom, 15
November 1996, § 118, Reports 1996 V; and Saadi
v. the United Kingdom [GC], no. 13229/03, § 74, ECHR
2008 ...). The national system thus failed to protect the
applicants from arbitrary detention and, consequently, their
detention cannot be considered “lawful” for the purposes
of Article 5 of the Convention.
The
Court concludes that there has been a violation of Article 5 § 1
of the Convention.
(b) Articles 5 §§ 2
and 4
- Having
regard to the above findings of violations stemming from the
absence of holding data and thus the inability to determine the exact
length of detention before deportation, the Court holds that no
separate issue arises under Articles 5 §§ 2 and 4 of the
Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
- The
second, third and fourth applicants claimed 24,300 euros (EUR) in
respect of pecuniary damage, mainly covering their expenses in Iraq,
such as accommodation, food, clothing and telephone calls. They
further alleged that they had had to pay two months of additional
rent for their flat in Turkey following their deportation and that
their belongings in Turkey had had to be sold urgently at a low price
because of their need for money. They maintained that they could not
work during their stay in Iraq and had thus been deprived of possible
income. Furthermore, had they not been deported to Iraq they would
have had been resettled in the United States during that period and
would also have been entitled to a certain amount of income.
The
applicants also claimed EUR 100,000 in respect of non-pecuniary
damage.
- The
Government contested these claims and maintained that they were
excessive.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore dismisses this claim.
However,
it considers that the applicants must have suffered non pecuniary
damage which cannot be compensated solely by the finding of
violations. Having regard to equitable considerations, the Court
therefore awards the second, third and fourth applicants EUR 9,000
each in respect of non-pecuniary damage.
B. Costs and expenses
-
The second, third and fourth applicants also claimed EUR 4,100
for the costs and expenses incurred before the Court such as lawyers'
fees, telephone calls, fax costs and taxi fees. In relation to their
claim they referred to the Ankara Bar Association's scale of fees.
- The
Government contested these claims and maintained that only
costs actually incurred could be reimbursed.
- The
Court considers that, in the absence of any relevant documents in
support of these claims as required by Rule 60 of the Rules of Court,
it makes no award under this head (see Gök and Güler
v. Turkey, no. 74307/01, § 66, 28 July 2009).
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
1. Decides to strike the application out of its
list of cases in respect of the first and fifth applicants;
- Declares admissible the complaints under Article
5 §§ 1, 2 and 4 concerning the unlawfulness of the
remaining applicants' deprivation of liberty before their
deportation, the lack of notification of the reasons for their
detention, the ineffectiveness of the judicial review of the
applicants' detention;
- Declares the remainder of the applications
inadmissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds that no separate issue arises under
Article 5 §§ 2 and 4 of the Convention;
- Holds
(a) that
the respondent State is to pay the second, third and fourth
applicants, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, EUR 9,000 (nine thousand euros) each, plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 13 April 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
