SECOND SECTION
CASE OF
GHORBANOV AND OTHERS v. TURKEY
(Application no.
28127/09)
JUDGMENT
STRASBOURG
3 December 2013
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 Ghorbanov and Others v. Turkey,
The European Court of Human Rights (Second Section), sitting as
a Chamber composed of:
Guido Raimondi, President,
Işıl Karakaş,
Peer Lorenzen,
András Sajó,
Nebojša Vučinić,
Paulo Pinto de Albuquerque,
Egidijus Kūris, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 12 November 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
28127/09) 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 nineteen Uzbek nationals, Mr Anvar Ghorbanov, Ms Nasibeh
Ghorbanov, Ms Nadereh Ghorbanov, Ms Omokolsoum Ghorbanov, Mr Mohammad
Ghorbanov, Mr Ibrahim Ghorbanov, Mr Ologhbeig Rahmanov, Ms Tajkhan
Rahmanov, Ms Ameneh Rahmanov, Mr Mohammadali Rahmanov, Ms Maryam Rahmanov, Ms Fatima
Rahmanov, Ms Zehra Rahmanov, Mr Oktamjan Rahmanov, Ms Sedaghat Rahmanov, Ms
Rahimeh Rahmanov, Ms Marziyeh Rahmanov, Mr Zaher Tordiev and Ms Maheireh
Tordiev (“the applicants”), on 10 April 2009.
The applicants, who had been granted legal aid,
were represented by Ms S. Yılmaz and Mr A. Yılmaz, lawyers practising
in Istanbul. The Turkish Government (“the Government”) were represented by their
Agent.
On 24 August 2010 the application was declared
partly inadmissible and the complaints concerning the applicants’ repeated
deportation, the lack of an effective domestic remedy in that respect, the unlawfulness
of depriving the applicants of their liberty, their right to be informed
promptly of the reasons for
their detention, and their right to institute proceedings to challenge the
lawfulness of their detention were communicated to the Government. The Court also
decided to rule on the admissibility and merits of the application at the same
time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicants are members of four families. Anvar Ghorbanov and Nasibeh
Ghorbanov were born in 1970 and 1975 and are married. Nadereh Ghorbanov,
Omokolsoum Ghorbanov, Mohammad Ghorbanov and Ibrahim Ghorbanov are their
children who were born in 1994, 1996, 2001 and 2002 respectively. Ologhbeig
Rahmanov and Tajkhan Rahmanov were born in 1969 and 1973 and are married.
Ameneh Rahmanov, Mohammadali Rahmanov, Maryam Rahmanov, Fatima Rahmanov and
Zehra Rahmanov are their children who were born in 1996, 1998, 2003, 2008 and
2008 respectively. Oktamjan Rahmanov and Sedaghat Rahmanov were born in
1973 and 1978 and are married. Rahimeh Rahmanov and Marziyeh Rahmanov are their
children who were born in 1998 and 2000 respectively. Zaher Tordiev and Maheireh Tordiev
are married and were born in 1980 and 1993 respectively. Maheireh Tordiev is
the daughter of Ologhbeig Rahmanov and Tajkhan Rahmanov.
The applicants currently live in hiding in Turkey.
According to the
applicants’ submissions, they were living in Andijan when they decided to leave
Uzbekistan as a result of increasing State pressure on those who practised
Islam. A number of their family members, friends or relatives had been questioned
by the Uzbek authorities, imprisoned or even killed for practising their
religion. Documents in the case file indicate that criminal proceedings are
currently pending in Uzbekistan against seven of the eight adult applicants for
attempting to change the constitutional order.
The four families left Uzbekistan separately on
unspecified dates and eventually reunited in Tajikistan in 1997. They then fled
to Afghanistan, Pakistan and Iran. Once in Iran, they initially settled in
Zahedan, where they lived for three years from 2001. During that time they
applied to the United Nations High Commissioner for Refugees (“the UNHCR”) for
refugee status.
In August 2005 the applicants went to Tehran and applied to the foreigners’ police. They were settled in a refugee camp and some
six months later they were granted refugee status by the UNHCR. While at the
refugee camp the applicants requested that a school be set up within the camp
for some thirty refugee children, including theirs. The applicants claim that
their request was turned down by the Iranian authorities and they were
threatened with deportation to Uzbekistan. Consequently, the applicants fled to
Turkey on 21 September 2007.
Upon their arrival in Turkey the applicants
applied to the UNHCR office in Van. On 5 January 2008 all the applicants (except
Fatima Rahmanov and Zehra Rahmanov, who were not yet born) were given UNHCR
refugee certificates. The applicants also applied to the Turkish authorities,
which issued each of them with asylum-seeker cards. The applicants were given
temporary residence permits until 24 September 2008 and told to report for
signature three times a week. They were given food rations. They rented flats
and sent their children to school.
The applicants claim that on 12 September 2008
the authorities invited all the Uzbek asylum seekers in Van to the police headquarters
for distribution of food rations and school stationery. Some twenty-five Uzbek
asylum seekers, who went to collect the items, including the applicants, were
placed in detention. Police officers drove the group of asylum seekers to the
border that same evening and forcibly deported them to Iran. The Government denied the veracity of the claim that the applicants had been tricked into
going to the police headquarters, but they confirmed that the applicants had
been deported to Iran on the same day. According to a document signed by two
police officers and one military officer, submitted by the Government, twenty-nine
Uzbek and Afghan nationals, including the applicants, were deported on 12
September 2008.
A week later the applicants re-entered Turkey illegally. They went back to Van and requested legal advice from the Van Bar
Association, which, along with two non-governmental organisations (“NGOs”),
published a report on 28 September 2008 regarding the applicants’ removal.
On 11 October 2008 police officers collected the
applicants from their homes and took them to the police headquarters. The same
evening, the applicants were deported to Iran once again.
According to the applicants’ submissions they
had to walk between villages close to the Iranian-Turkish border for about ten
days in winter conditions. They subsequently asked for help from the Iranian
gendarmerie, who detained them for two days before deporting them back to
Turkey.
The applicants’ deportations were brought to the
attention of the national and international public through press releases from
various NGOs and the UNHCR. Likewise, a Turkish parliamentarian issued a press
release within the Parliament and criticised the removal of the applicants as
well as the existing refugee protection system in Turkey.
On an unspecified date the applicants’
representative sent letters to, inter alia, the Human Rights Commission
of the Parliament of Turkey, the Human Rights Commission of the Van Governor’s
office and the Ministry of the Interior.
On 26 November 2008 the head of the Human Rights
Commission of the Parliament of Turkey replied to the applicants’ representative
that the Ministry of the Interior had informed the Parliament, in a letter
dated 11 November 2008, that the applicants had been deported to Iran, a
safe third country, in compliance with the legislation in force.
In his reply dated 22 April 2009, in his
capacity as head of the Human Rights Commission of the Van Governor’s office, the
deputy Governor of Van informed the applicants’ representative that the
applicants had been deported to Iran in compliance with the legislation in
force and that Iran was a safe third country where the applicants had lived
between 2001 and 2007.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A description of the relevant domestic law and
practice at the material time can be found in Abdolkhani and Karimnia
v. Turkey (no. 30471/08, §§ 29-43, ECHR2009-... (extracts)).
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE
CONVENTION
The applicants complained that their repeated
summary deportation to Iran without a deportation order and, in the case of
their first removal, whilst they had valid residence permits, had violated
their rights guaranteed in Articles 3 and 13 of the Convention.
. The
Court considers that the applicants’ aforementioned complaints should be
examined from the standpoint of Article 3 alone, which reads:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
The Government submitted that the applicants
could and should have applied to the administrative courts in accordance with
Article 125 of the Constitution. They argued that, under Turkish law,
foreigners who are to be deported may apply to the administrative courts
requesting the suspension of the deportation proceedings as well as the
annulment of the administrative decisions. If the courts accept their request
for a stay of execution, the administrative authorities suspend the deportation
proceedings. The Government concluded that the applicants had failed to exhaust
the domestic remedies available to them, within the meaning of Article 35 § 1
of the Convention.
The applicants maintained in reply that they had
not been notified of the decision to deport them prior to their expulsion. They
further contended that, even if they had been served with deportation orders,
application to the administrative courts for the annulment of a deportation decision
did not automatically have a suspensive effect and therefore did not constitute
an effective remedy.
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.
On the other hand, the Court observes that the applicants’
first removal to Iran took place on 12 September 2008. In the absence of an
effective remedy whereby the applicants could challenge the deportation measure
taken against them, the Court finds that the applicants’ complaints in so far
as they concern their removal of 12 September 2008 were introduced out of time
and must be rejected in accordance with Article 35 §§ 1 and 4 of
the Convention.
The Court notes that the applicants’ complaints
in so far as they concern the circumstances of their removal of 11 October 2008
are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
The Government submitted that the applicants
were former members of an organisation called the Islamic Movement of
Uzbekistan, which was listed as a terrorist organisation by the European Union
and the United States of America. The decision to deport them was taken with a
view to protecting public safety and national security. The Government further
maintained that on 12 September 2008 the applicants had been deported in
accordance with the domestic law to a safe third country, where they had lived
for seven years before arriving in Turkey. However, they re-entered Turkish
territory illegally and were deported again on 11 October 2008.
The applicants submitted that they had been
deported twice without being served with deportation orders and that their
deportations had been illegal under the domestic law. They further contended
that the Turkish authorities had not obtained any guarantee from the Iranian
authorities that they would be admitted to Iran. They were simply removed to
Iranian territory by Turkish police officers, rather than handed over to the
Iranian authorities. Moreover, the climate in that region of Iran was cold and snowy, and they had had nowhere to stay. The applicants submitted that on
both occasions they had experienced fear for their lives and despair-feelings
which attained the threshold of torture, inhuman or degrading treatment.
The Court reiterates at the outset that in its partial
decision in the present case, rendered on 24 August 2010, it declared the
applicants’ complaint that they had risked deportation from Iran to Uzbekistan
manifestly ill-founded, as the applicants were refugees recognised by the UNHCR
and had lived in Iran prior to their arrival in Turkey. The Court notes that
there is no dispute between the parties that the applicants in the present case
were deported from Turkey to Iran twice: on 12 September and 11 October
2008. The Court has however declared the applicants’ complaints in so far as
they concern the circumstances of their removal on 12 September 2008
inadmissible as they were introduced out of time (see paragraph 24 above). Therefore,
the Court’s examination will be limited to ascertaining whether the
circumstances in which the applicants were deported from Turkey to Iran on 11
October 2008 constituted a violation of Article 3 of the Convention.
The Court reiterates in this connection that ill-treatment
must attain a minimum level of severity if it is to fall within the scope of
Article 3 of the Convention. The assessment of this minimum is, in the nature
of things, relative; it depends on all the circumstances of the case, such as
the nature and context of the treatment, the manner and method of its
execution, its duration, its physical or mental effects and, in some instances,
the sex, age and state of health of the victim (see Kudła v. Poland [GC],
no. 30210/96, § 91, ECHR 2000-XI).
Treatment has been held by the Court to be
“inhuman” because, inter alia, it was premeditated, was applied for
hours at a stretch and caused either actual bodily injury or intense physical
or mental suffering (see Labita v. Italy [GC], no. 26772/95, § 120, ECHR
2000-IV). Treatment has been considered “degrading” when it was such as
to arouse in its victims feelings of fear, anguish and inferiority capable of
humiliating and debasing them and possibly breaking their physical or moral
resistance or driving them to act against their will or conscience (see Jalloh
v. Germany [GC], no. 54810/00, § 68, ECHR 2006-IX). In this
connection, the question whether such treatment was intended to humiliate or
debase the victim is a factor to be taken into account, although the absence of
any such purpose does not inevitably lead to a finding that there has been no
violation of Article 3 (see Peers v. Greece, no. 28524/95, §§ 67, 68 and
74, ECHR 2001-III, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR
2002-VI).
Turning to the particular circumstances of the
present case, the Court notes that the applicants were recognised as refugees
by the UNHCR both in Iran and in Turkey, and that at the time of their first removal
on 12 September 2008 they had valid residence permits in Turkey.
The Court further notes that the Government were
explicitly requested to make submissions as to whether Iran had guaranteed admission
of the applicants prior to their deportation; whether a deportation order had
been issued for their deportation; and whether the applicants had been notified
of such a deportation order. They were also asked to provide copies of the
deportation order and notification form for the removal, but they failed to do
so. The Government failed to respond to the Court’s aforementioned questions and
there are no documents in the case file to show that a formal deportation order
had been communicated to the applicants. Nor is there any proof that on 11
October 2008 the applicants were handed over to the Iranian authorities or that
the latter guaranteed their admission to Iran. All of the above leads the Court
to conclude that the applicants - refugees recognised by the UNHCR - were illegally
deported to Iran, a non-member State of the Council of Europe, in the absence of
a legal procedure providing safeguards against unlawful deportation, and without
a guarantee from the Iranian authorities that the applicants would be admitted to
Iran. The Court is particularly struck by the fact that the applicants’ removal
on 11 October 2008 was not even officially recorded by the Turkish authorities.
In this connection, the Court reiterates the absolute nature of Article 3 of
the Convention. The fact that the national authorities considered some of the
applicants to be dangerous for national security could not justify their
removal in such circumstances (compare with, mutatis mutandis, Saadi
v. Italy [GC], no. 37201/06, §§ 138-39, ECHR 2008).
Besides, the Court observes that twelve of the nineteen
applicants were minors at the time of the events. The oldest of the children was
fifteen years old in 2008 and two applicants were born a few months before the
first deportation to Iran (see paragraph 4 above). The applicants were forcibly
removed from Turkey and it appears that the authorities’ acts were premeditated
and carried out without respect for either the applicants’ status as refugees,
or for the personal circumstances of the applicants, most of whom were children
who had a stable life in Turkey. The Court considers that the circumstances up
until the time of their removal must have caused the adults feelings of despair
and fear, as they were unable to take any step to prevent their removal in the
absence of procedural safeguards and were being sent to an unknown area with
their young children and babies.
Moreover, the applicants submitted that they had
to spend approximately twelve days in Iran, in winter conditions and without a
place to stay and the Government did not challenge the veracity of these
submissions.
Bearing in mind the manner in which the
applicants’ removal was carried out and taking into account the young age of the
majority of them, the Court concludes that the applicants’ suffering must have
been severe enough to be categorised as inhuman treatment within the meaning of
Article 3.
There has accordingly been a violation of Article 3 of the
Convention.
II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE
CONVENTION
The applicants complained under Article 5 §§ 1,
2 and 4 of the Convention that their detention by the police prior to their
removal on 12 September and 11 October 2008 had been unlawful, and that
they had not been informed of the reasons for their deprivation of liberty in
the course of their deportations and had no means of challenging its lawfulness.
A. As regards the applicants’ alleged deprivation of
liberty on 12 September 2008
The Court observes that the alleged violations
of Article 5 §§ 1, 2 and 4 of the Convention occurred on 12 September 2008,
whereas the application was lodged with the Court on 10 April 2009, more than
six months later.
It follows that the applicants’ complaints under
Article 5 §§ 1, 2 and 4, in so far as they concern the events of 12 September
2008, have been introduced out of time and must be rejected in accordance
with Article 35 §§ 1 and 4 of the Convention (see M.B. and
Others v. Turkey, no. 36009/08, §§
50 and 51, 15 June 2010).
B. As regards the applicants’
alleged deprivation of liberty on 11 October 2008
1. Admissibility
The Court notes that
this part of the application is not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention. It further notes that it is
not inadmissible on any other grounds. It must therefore be declared
admissible.
2. Alleged violation of Article 5 § 1 of the
Convention
. The
Government submitted that the applicants had been deported on 11 October 2008
but that they had never been deprived of their liberty.
. The
applicants maintained their allegation that they had been deprived of their
liberty on 11 October 2008.
The Court reiterates that it has already
examined the same grievance in the case of Abdolkhani and Karimnia
(cited above, §§ 125-35), in which it found that in the absence of clear legal
provisions establishing the procedure for ordering detention with a view to
deportation, the applicants’ detention had not been “lawful” for the purposes
of Article 5 of the Convention.
In the instant case, the Court observes that it
is not in dispute between the parties that the applicants were deported on 11
October 2008. Given that the applicants had to be detained by the national
authorities in order to be removed to Iran, there are no particular
circumstances which would require it to depart from its findings in the
above-mentioned judgment. The fact that the applicants’ detention lasted for a
brief period has no impact on its “unlawful” nature.
There has therefore been a violation of Article 5 § 1 of the
Convention.
3. Alleged violation of Article 5 § 2 of the
Convention
The Government did not submit any observations
on this point.
The applicants reiterated their allegations.
The Court notes that the Government were
explicitly requested to make submissions as to whether the applicants had been
informed of the reasons for their detention and to provide the relevant
documents in support of their response, but failed to do so. In the absence of
a reply from the Government, the Court is led to conclude that the reasons for
the applicants’ detention on 11 October 2008 were never communicated to them by
the national authorities.
There has therefore been a violation of Article 5 § 2 of the
Convention.
4. Alleged violation of Article 5 § 4 of the Convention
The Government did not submit any observations
on this point.
The applicants reiterated their allegations.
The Court observes that the applicants were
detained for a few hours before their removal to Iran on 11 October 2008. In
the light of its case-law, according to which Article 5 § 4 does not deal with
remedies which may serve to review the lawfulness of a short-term detention that
has already ended, the Court does not find it necessary to determine the merits
of the applicants’ complaints under Article 5 § 4 of the Convention (see M.B.
and Others, cited above, § 45, and Slivenko v. Latvia [GC], no. 48321/99,
§§ 158-159, ECHR 2003-X).
III. 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. Pecuniary damage
The applicants claimed EUR 3,806.79 (euros) in
respect of pecuniary damage. They alleged that the police had confiscated all
their personal belongings when they had been arrested and had never returned
their money and their mobile phones. They further submitted that they had had to
pay a ransom to people smugglers when they were in Iran.
The Government contested those claims.
Since it has not been established that the
applicants were in possession of the aforementioned items when they were
detained or that they actually made any payment to people smugglers, the Court
rejects this claim.
B. Non-pecuniary damage
The applicants claimed a total of EUR 621,000 in
respect of non-pecuniary damage.
The Government submitted that the applicants’
claims were unsubstantiated.
The Court considers that the applicants must
have suffered non-pecuniary damage which cannot be compensated for solely
by the finding of violations. Having regard to equitable considerations, the
Court awards the applicants EUR 10,000 each in respect of non-pecuniary damage.
C. Costs and expenses
The applicants also claimed EUR 6,734.84 for the
costs and expenses incurred before the Court. In this connection, they
submitted a timesheet showing that their
legal representative had carried out sixty-four hours’ legal work, an
agreement that they had concluded with their representative, and invoices for postal,
stationery, translation and phone expenses.
The Government contested this claim, 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 applicants the sum of EUR 3,350 jointly for the
proceedings before the Court. From this sum should be deducted the EUR 850
granted by way of legal aid under the Council of Europe’s legal-aid scheme.
D. Default interest
The Court considers it appropriate that the
default interest rate 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. Declares the complaints concerning the applicants’
deportation on 11 October 2008, the alleged unlawfulness of their
detention on 11 October 2008, the failure of the authorities to inform the
applicants of the reasons for their detention and the alleged lack of a remedy
whereby they could challenge the lawfulness of their detention, in so far as
they concern their detention on 11 October 2008, admissible, and the remainder
of the application inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention;
3. Holds that there has been a violation of
Article 5 § 1 of the Convention;
4. Holds that there has been a violation of
Article 5 § 2 of the Convention;
5. Holds that there is no need to examine the
complaint under Article 5 § 4 of the Convention;
6. Holds
(a) that the respondent State is to pay the applicants,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 10,000 (ten thousand euros) each, plus any
tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 3,350 (three thousand three hundred and
fifty euros), jointly in respect of costs and expenses, minus the EUR 850
(eight hundred and fifty euros), granted by way of legal aid, plus any tax that
may be chargeable to the applicants;
(b) 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;
7. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 3 December 2013,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
