BABAJANOV v. TURKEY - 49867/08 (Judgment (Merits and Just Satisfaction) : Court (Second Section)) [2016] ECHR 410 (10 May 2016)

In the case of Babajanov v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Julia Laffranque, President,
          Işıl Karakaş,
          Nebojša Vučinić,
          Paul Lemmens,
          Ksenija Turković,
          Jon Fridrik Kjølbro,
          Stéphanie Mourou-Vikström, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 19 April 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 49867/08) 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 an Uzbek national, Mr Mohammad Kuranbay Babajanov (“the applicant”), on 17 October 2008.

2. The applicant, who had been granted legal aid, was represented by Mr A. Yılmaz, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

3. On 17 October 2008, when the application was lodged, the applicant’s representative requested that the Court adopt an interim measure, under Rule 39 of the Rules of Court, to stop the applicant’s threatened deportation to Iran or Uzbekistan.

4. On the same day the President of the Chamber to which the case was allocated rejected the applicant’s request under Rule 39 of the Rules of Court, as there was no evidence of an imminent danger of deportation.

5. On 6 April 2010 the applicant’s representative repeated the request under Rule 39 of the Rules of Court.

6. On 7 April 2010 the request under Rule 39 was rejected once again, in the absence of any relevant new information regarding the applicant’s situation.

7. On 7 September 2011 the application was communicated to the Government. On 12 March and 13 June 2012 the Government and the applicant submitted their observations respectively.

8. On 7 April 2015 the Chamber decided, under Rule 54 § 2 (c) of the Rules of Court, to invite the parties to submit further written observations on the admissibility and merits of the application. In particular, the parties were requested to respond to the question as to whether the applicant could claim to be a victim of a violation of the Convention, within the meaning of Article 34 of the convention, in relation to his complaints concerning his alleged threatened deportation to Iran or Uzbekistan. The Government were further requested to submit copies of administrative courts’ decisions in cases concerning removal of asylum seekers rendered subsequent to the entry into force of the Foreigners and International Protection Act (Law no. 6458).

9. On 30 April 2015 and 10 June 2015 the applicant and the Government submitted their further observations and supporting documents respectively. On 16 July 2015 the Government replied to the submissions of the applicant.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

A. Facts as presented by the applicant

10. The applicant was born in 1975 and lives in Turkey.

11. In 1999 the applicant fled from Uzbekistan to Tajikistan because of pressure from the police, who suspected him of anti-constitutional activities in connection with his alleged Islamic religious beliefs and practices. He feared, in particular, that if he stayed in Uzbekistan, he would face persecution from the State authorities, and would eventually be imprisoned and tortured like some of his fellow Muslim friends. In support of his allegation of the risk of ill-treatment in Uzbekistan, the applicant submitted a copy of a list of persons who had been charged with offences against the State. The list had been prepared by the Human Rights Centre “Memorial”, a non-governmental organisation based in Moscow, and included the applicant’s name. According to this document, the applicant was charged under Article 159 § 4 of the Uzbekistan Criminal Code (attempting to violently overthrow the State’s constitutional order). At the top of the document, it was explained that the list had been compiled on the basis of the “Bulletin on the Search for Criminals” prepared by the criminal investigation and counter-terrorism department of the Ministry of the Interior of Uzbekistan and published in Tashkent in May 2003.

12. From Tajikistan, the applicant went on to Afghanistan and Pakistan. In 2005 he arrived in Iran, where he settled in Zahedan. The applicant applied to the United Nations High Commissioner for Refugees (“the UNHCR”) in Zahedan for recognition as a refugee. He lived in Zahedan for two years without experiencing any major problems. In 2007, however, together with some other Uzbek asylum seekers who had left their country for the same reasons, the applicant decided to flee from Iran following deportation threats. He claimed that the threats had been a response to certain disagreements with the Iranian authorities over their living conditions.

13. On 18 November 2007 the applicant entered Turkey illegally through Van and went to Ankara to apply for refugee status at the UNHCR. Following a preliminary interview, the applicant was referred to the UNHCR office in Van. The Van office issued him with an asylum seeker certificate. Subsequently, he registered with the Van police headquarters and started the domestic temporary asylum procedure. Thereafter he was given a temporary residence permit until 24 September 2008 and was ordered to report to the police three times a week for signature. It appears that the other Uzbek asylum seekers who had fled Iran together with the applicant were granted similar certificates and permits after following the same procedural steps.

14. On an unspecified date the Van police sent a notice to a number of Uzbek families requiring them to appear at the police station on 12 September 2008. The notice stated that their attendance was required for the distribution of food rations and school stationery.

15. Although the applicant did not receive such a notice, at 2 p.m. on 12 September 2008 he went to the police station for signature, as part of his weekly routine. Once at the police station, some twenty-nine asylum seekers, including the applicant, were placed in detention. Their personal items, including identity documents, money and telephones, were confiscated. They were driven to the border at around 9 p.m. the same evening and forcibly deported to Iran. The applicant was allegedly ill-treated and threatened by the police during deportation.

16. After crossing the border to Iran on foot, the Uzbek asylum seekers, including the applicant, were captured and held hostage by people smugglers, who demanded 5,000 United States dollars to spare their lives and to release them. The asylum seekers contacted some other Uzbeks who had managed to escape deportation from Turkey and obtained the ransom fee. The smugglers made them walk for three days to Yüksekova, a town close to the Iranian border of Turkey, where they were released.

17. After re-entering Turkey illegally, the applicant went back to Van together with the other Uzbek asylum seekers. They requested legal advice from the Van Bar Association, which, along with two Turkish non-governmental organisations, published a report on 28 September 2008 regarding the Uzbek asylum seekers’ collective expulsion. It was argued in the report, inter alia, that the expulsion of the Uzbeks by the Turkish State authorities, despite their valid residence permits, had had no legal basis. It was also alleged that the expulsion had been motivated by political considerations to improve relations with Uzbekistan, which had been strained following the acceptance by Turkey of members of Uzbek opposition groups, such as the applicant, as asylum seekers in recent years.

18. On 11 October 2008 a number of Uzbek asylum seekers, who had previously been deported to Iran on 12 September 2008, were collected from their homes by police officers from the Van police headquarters. The same evening, they were deported to Iran once again. The applicant, however, escaped this deportation by pure chance, as the police did not have his correct home address.

19. The deportation of the applicant and the other Uzbek nationals was brought to the attention of the national and international public through press releases from various NGOs and the UNHCR. In particular, seven human rights and refugee rights organisations, including Amnesty International, issued a press release in which they condemned the forced illegal deportation of the applicant and the other Uzbek nationals to Iran. Likewise, a Turkish parliamentarian issued a press release within the Parliament and criticised the removal as well as the existing refugee protection system in Turkey.

20. On an unspecified date the applicant’s 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.

21. On 26 November 2008 the head of the Human Rights Commission of the Parliament of Turkey replied to the applicant’s representative that the Ministry of the Interior had informed the Parliament, in a letter dated 11 November 2008, that the applicant had been deported to Iran, a safe third country, in compliance with the legislation in force.

22. 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 applicant’s representative that the applicant and the other deportees had been removed to Iran in compliance with the legislation in force and that Iran was a safe third country where the applicant had lived before he had arrived in Turkey in 2007.

23. On 16 March 2010 the UNHCR Ankara Office sent a letter to the applicant’s representative, informing him that the UNHCR had learned that the applicant, along with a number of other Uzbek nationals, had been illegally deported to Iran and that the applicant’s asylum claim was under review. The UNHCR also informed the applicant’s representative that on 26 September 2008 they had sent a letter to the Turkish authorities requesting the latter to take the necessary measures to grant the applicant and other Uzbek nationals who had been deported on 12 September 2008 residence permits with a view to legalizing their status in Turkey pending the completion of the procedures with regard to their cases.

24. Since 2008, the applicant has been living in Turkey in hiding and his application for refugee status under the mandate of the UNHCR is still under consideration. On 4 December 2013 and 28 March 2014 he was interviewed by officers from the UNHCR’s Ankara office regarding his application for refugee status. He has not received any information from the Turkish authorities as to his request for asylum. The applicant cannot approach the Turkish authorities to apply for asylum or to obtain a temporary residence permit for fear of being deported to Iran, like the other Uzbek asylum seekers who were deported once again to Iran in October 2008. Moreover, he cannot appoint a lawyer to undertake the necessary legal and procedural actions on his behalf before the domestic authorities as he does not possess the necessary identity documents required to issue a power of attorney before a notary public.

B. Facts as presented by the Government

25. When the applicant applied for asylum in Turkey in December 2007, he informed the authorities that he had been granted refugee status in Iran by the UNHCR. His application was registered and he was asked not to leave the city of Van.

26. On 14 February 2008 the applicant left Van and returned there on 26 August 2008. He subsequently repeated his asylum request.

27. On an unspecified date the applicant’s asylum request was assessed in the light of Article 33 of the Convention Relating to the Status of Refugees, the European Convention on Human Rights, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the national legislation. He was subsequently deported to Iran, a safe third country, where he was recognised as a refugee by the UNHCR. 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 applicant, were deported on 12 September 2008.

28. According to the Government, the applicant was not deprived of his liberty. Moreover, his identity documents were not confiscated.

II. RELEVANT DOMESTIC LAW

29. A description of the relevant domestic law and practice at the material time can be found in the case of Ghorbanov and Others).

30. On 11 April 2014 the Foreigners and International Protection Act (Law no. 6458) entered into force. Sections 52-60 of the Act concern the procedure for the removal of foreign nationals from Turkey, the judicial review of removal orders and detention pending removal. In particular, Sections 52 and 53 stipulate the procedure for issuing removal orders, their notification to the parties concerned and the procedure for appeal. Sections 54 and 55 of Law no. 6458 list the persons with regard to whom removal decisions shall be issued and those who are exempted from removal, respectively. Sections 57, 58 and 59 contain the rules concerning the administrative detention of foreign nationals pending removal and the standards of removal centres. Finally, Section 60 concerns the implementation of the removal orders.

Sections 61 to 90 of the same Act concern the principles and rules governing applications for international protection. In particular, Articles 61-64 concern the types of international protection available and exclusion from international protection. Articles 65-79 contain the rules regarding, inter alia, the application for international protection, registration of applicants, administrative detention of persons seeking asylum, the latter’s residence and reporting obligations, interviews, accelerated procedure and the situation of unaccompanied minors. Article 80 of the Act stipulates the rules for administrative review of decisions on international protection requests and the judicial remedies. Articles 83 and 84 concern the issuing of “international protection identity documents” and travel documents for persons seeking asylum. Articles 85 and 86 stipulate the circumstances in which international protection status is terminated and cancelled, respectively. Finally, Sections 88-90 concern the rights and obligations of persons demanding and granted international protection.

III. INTERNATIONAL MATERIAL REGARDING THE DEPORTATION OF THE APPLICANT AND OTHER UZBEK AND AFGHAN NATIONALS TO IRAN ON 12 SEPTEMBER 2008

31. In his report published on 1 October 2009, following his visit to Turkey on 28 June to 3 July 2009 (CommDH(2009)31), Mr Thomas Hammarberg, then Commissioner for Human Rights of the Council of Europe, stated the following:

“...VI. Issues relating to forced returns of asylum seekers and refugees

66. The Commissioner notes with concern that NGOs as well as UNHCR continue to report incidents of deportation and refoulement of UNHCR recognized refugees and registered asylum seekers. He is aware that the UN Committee on the Elimination of Racial Discrimination (CERD) also expressed concern over these reports and called upon Turkey to refrain from deporting refugees or persons registered with UNHCR as asylum seekers...

69. Reports indicated that in 2008 there was an increase in forcible returns of refugees and asylum seekers to countries where they were at risk of serious human rights violations including irregular deportations resulting in the death or injury of asylum seekers, one example being a group of Uzbek refugees twice forcibly returned to Iran, first in September and then in October 2008. During the first forcible return, members of the group were said to have been beaten and threatened with rape unless they crossed back into Iran...

71. UNHCR also informed the Commissioner that refugees and asylum seekers properly registered in the national procedure for temporary asylum are protected from refoulement, and the Government generally tolerates the presence of those registered only with UNHCR. However, UNHCR has observed with concern that the instances of refoulement of persons of concern to the Office are becoming more frequent. In 2008, 13 refugees recognized under UNHCR’s Mandate and 9 asylum seekers were refouled (mainly to Iran and Iraq), and 50 refugees and 5 asylum seekers have been deported to third countries (mainly to Iran, Iraq and Syria).

72. The Turkish authorities informed the Commissioner that asylum seekers, who are not granted refugee status but are assessed to have a risk of persecution in their countries of origin, are allowed to temporarily stay on grounds of subsidiary protection and protection with humanitarian considerations. The Commissioner appreciates the expressed commitment of the Turkish authorities to compliance with the principle of non-refoulement as laid out in Article 33 of the 1951 UN Refugee Convention which places a prohibition on sending asylum seekers back to countries where their life or freedom would be threatened. He calls upon the Turkish authorities to ensure effective implementation of this principle by border patrols and speedy, efficient investigation into cases of alleged violations. Furthermore, he urges prompt ratification of Protocol No. 4 to the European Convention on Human Rights that was signed by Turkey in 1992 and, inter alia, proscribes the collective expulsion of aliens...”

32. In its 2008 Report on Human Rights Practices in Turkey, the United States Department of State noted the following:

“...On September 12, 22 Uzbekistan citizens, who had earlier been recognized as refugees by the UNHCR in Iran but later came to Van seeking resettlement to a third country, were deported to Iran. The refugees were rounded up without notice and taken to an unmarked, mountainous portion of the border and forced to walk into Iran. The group included women and children, who were also forced to walk across the mountains under dangerous conditions. Later, the same group paid Iranian smugglers $5,000 to bring them back across the unmarked border to reach Van on September 23. The UNHCR formally approached authorities requesting that the refugees be granted temporary asylum in the country, as they presented credible documentation showing they had reason to fear refoulement to Uzbekistan if they returned to Iran. On October 13, all 22 of the refugees, along with another family of three Uzbekistan citizens who had filed a stop-deportation petition with the ECHR in September, were re-deported to Iran...”

33. On 17 and 30 September 2008 Amnesty International issued two statements expressing concerns regarding the forcible return of the applicant and other Uzbek nationals to Iran. In its statement dated 17 September 2008, Amnesty International noted, inter alia, the following:

“On 12 September, a group of 24 Uzbekistani nationals, who have been living for around a year in the eastern Turkish town of Van, were expelled to Iran. The group are now held by an unidentified Iranian group. Amnesty International fears for their safety while they are being held by the unidentified group and also that they could be subjected to forcible return to Uzbekistan by the Iranian authorities if and when they are released by the group that is currently holding them.

If returned to Uzbekistan the adults of the group would be at risk of incommunicado detention, torture or other ill-treatment. The group have been recognized as refugees by the UNHCR.

...

The families are originally from Uzbekistan, though they left for Tajikistan in the late 1990s to escape persecution and arrest for worshipping at a mosque outside state control and under an imam accused by the Uzbekistani authorities of anti-state activities. They left Tajikistan for Afghanistan in 1999 but left because of war there in 2001. They eventually made their way to Iran, where they were recognized as refugees by the UNHCR. The group fled to Turkey from Iran in 2007 after they had been threatened with forcible return to Uzbekistan. 22 of them were subsequently recognized again as refugees by the UNHCR in Turkey. The status of two is yet to be determined. The families were linked to the Islamic Movement of Uzbekistan (IMU), an armed opposition group in whose camps they stayed, both in Tajikistan and Afghanistan, possibly under duress.”

34. In its report “Stranded: Refugees in Turkey Denied Protection” released in 2009, Amnesty International expressed its concerns regarding the deportation of the applicant and the other Uzbek nationals to Iran on 12 September 2008:

“...The forcible return on two occasions of a group of UNHCR recognized Uzbekistani refugees in September and October of 2008 illustrates the Turkish authorities’ increased flouting of both international non-refoulement obligations and the procedures of national law in the case of forcible returns. On 12 September, 24 Uzbekistani refugees, 15 of them children, were forced into Iranian territory by Turkish law enforcement officials. It was alleged that officials had persuaded the group to come to the Van Directorate of Security in order that stationery would be provided for the children’s education. Commenting to the press on these allegations, a senior official within the Van Directorate of Security was quoted as saying that the group was not complying with reporting requirements and that although the police methods may differ from others, the method of getting the refugees to the station did not matter. During this deportation, members of the group were allegedly beaten by security officials and women and girls were threatened with rape unless they left Turkey. The refugees were subsequently held hostage by an unnamed group in Iran which threatened to kill them. They were released after a week following the payment of a ransom of US$ 5,000. They then returned irregularly to Turkey...”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S DEPORTATION ON 12 SEPTEMBER 2008

35. The applicant complained under Articles 2 and 3 of the Convention that his summary deportation to Iran without an assessment of his asylum claim and without a deportation order and whilst he had valid residence permits, had violated their rights guaranteed in Articles 3 and 13 of the Convention. He submitted that there had been a real risk of his refoulement from Iran to Uzbekistan, where he was likely to be tortured and executed on account of his political opinions and religious beliefs.

36. The Court considers that the applicant’s aforementioned complaints should be examined from the standpoint of Article 3 of the Convention alone. Article 3 reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

37. The Government contested the applicant’s arguments.

A. Admissibility

38. The Court notes that this complaint 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.

B. Merits

1. The parties’ submissions

39. The applicant submitted that his deportation to Iran had exposed him to a risk of ill-treatment given that there had been a real risk of his refoulement from Iran to Uzbekistan. He contended that in Uzbekistan he was charged with attempting to violently overthrow the State’s constitutional order under Article 159 § 4 of the Criminal Code and that international non-governmental organisations, such as Amnesty International and Human Rights Watch, reported widespread torture and other ill-treatment of detainees and prisoners in Uzbekistan. The applicant further claimed that Iran had deported numerous refugees to their countries of origin. The applicant further submitted that he had been deported to Iran without an assessment of his asylum claim and without being served with a deportation order and that his deportation had been illegal under domestic law, as his residence permit had been valid until 24 September 2008.

40. The Government argued, referring to the Court’s decision in the case of Ghorbanov and Others v. Turkey ((dec.), no. 28127/09, 24 August 2010), that the applicant had not run a risk of deportation from Iran to Uzbekistan. They contended that the applicant had not been deported to Uzbekistan, but to Iran, a safe third country where he had been recognised as a refugee under the UNHCR mandate and had lived for seven years before arriving in Turkey. The Government opined that, in its decision in Ghorbanov and Others v. Turkey, the Court had also considered Iran as a “safe third country”. The Government further argued that prior to 12 September 2008 the applicant had failed to comply with the rules governing the asylum procedure as he had left Van pending the outcome of his asylum application. According to the Government, on 12 September 2008 the applicant had been deported in accordance with the domestic law to a safe third country subsequent to an assessment of his asylum claim. However, he re-entered Turkish territory illegally.

2. The Court’s assessment

41. It is the Court’s settled case-law that as a matter of international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case Article 3 implies an obligation not to deport the person in question to that country (see Saadi v. Italy [GC], no. 37201/06, §§ 124-125, ECHR 2008; and M.D. and M.A. v. Belgium, no. 58689/12, § 54, 19 January 2016).

42. Besides, the Court considers that in view of the fact that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe and that it prohibits in absolute terms torture and inhuman or degrading treatment or punishment, a claim that there exist substantial grounds for fearing a risk of treatment contrary to Article 3 must be subjected to a close review and an independent and rigorous examination (see Jabari v. Turkey, no. 40035/98, § 50, ECHR 2000-VIII; Sultani v. France, no. 45223/05, § 63, ECHR 2007-IV (extracts); and M.D. and M.A., cited above, § 55).

43. Turning to the particular circumstances of the present case, the Court first observes that, in their submissions to the Court, the Government argued that the applicant had not run a risk of deportation from Iran to Uzbekistan, referring to the Court’s decision of 24 August 2010 in the case of Ghorbanov and Others v. Turkey. The Court notes that the applicant was removed to Iran on 12 September 2008 along with twenty-eight other persons of Uzbek and Afghan origin (see paragraphs 15 and 27 above). The above-cited case of Ghorbanov and Others was brought by nineteen of those Uzbek nationals who had been deported to Iran at the same time as the applicant. In the partial decision in that case, the applicants’ complaint under Article 3 that they had risked deportation from Iran to Uzbekistan was declared inadmissible as being manifestly ill-founded. The decision, in so far as it concerned the deportation which had taken place on 12 September 2008, was based on the fact that those applicants were refugees recognised by the UNHCR in Iran and had lived in that country prior to their arrival in Turkey. In this regard, the Court stresses that it does not share the Government’s view that Iran was considered to be a “safe third country” in that decision. Such an assessment is nowhere to be found in the Court’s decision in the case of Ghorbanov and Others. Besides, the applicant in the present application lived in Iran for approximately two and a half years as an asylum seeker, whereas the adults among the applicants in the case of Ghorbanov and Others lived in the same country for six years as refugees. Thus, in the Court’s view, the present application has to be distinguished from the case of Ghorbanov and Others. In any case, the Court finds that the central question to be answered in the present case is not whether the applicant ran a real risk of ill-treatment in Iran or in Uzbekistan as such but whether the Turkish authorities carried out an adequate assessment of the applicant’s claim that he would be at risk of ill-treatment in case of deportation to Iran with refoulement to Uzbekistan before he was deported from Turkey to Iran on 12 September 2008 (see M.D. and M.A., cited above, § 58). Therefore, the Court’s examination will be limited to ascertaining whether the State authorities had fulfilled their procedural obligations under Article 3 of the Convention (see F.G. v. Sweden [GC], no. 43611/11, § 117, 23 March 2016).

44. In this connection, the Court first observes that the applicant applied both to the UNHCR in Turkey and to the national authorities and claimed asylum (see paragraph 13 above). His application to the UNHCR in Turkey was under consideration at the material time. Also, the applicant’s claim that on 12 September 2008 he had gone to the police station for signature as part of his weekly routine (see paragraph 15 above) was not contested by the Government. The Court therefore finds it established that the applicant was an asylum seeker who was residing legally in Turkey on the day of his deportation.

45. The Court notes that the applicant did provide some detailed information about his personal situation and the reasons for his fear of ill-treatment and that his arguments were supported by documents (see §§ 11-12 above). Having regard to the information and documents provided by the applicant, the Court finds that the applicant adduced evidence capable of proving that there were substantial grounds for believing that, if he was deported to Iran with the risk of refoulement to Uzbekistan, he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention. Therefore, the Turkish authorities were under an obligation to address the applicant’s arguments and carefully assess the risk of ill-treatment if the applicant was to be deported to Iran with the risk of refoulement to Uzbekistan, in order to dispel any doubts about possible ill-treatment (see, inter alia, Müslim v. Turkey, no. 53566/99, §§ 72 and 74, 26 April 2005; Ryabikin v. Russia, no. 8320/04, § 112, 19 June 2008; Iskandarov v. Russia, no. 17185/05, §§ 128-135, 23 September 2010; Auad v. Bulgaria, no. 46390/10, §§ 101-108, 11 October 2011; Azimov v. Russia, no. 67474/11, §§ 112-113, 18 April 2013; L.M. and Others v. Russia, nos. 40081/14, 40088/14 and 40127/14, §§ 114-118, 15 October 2015; M.D. and M.A., cited above, § 55; and F.G., cited above, § 120).

46. Against this background, the Court observes that the Government were explicitly requested to make submissions as to whether the applicant’s asylum request had been examined and refused; whether a deportation order had been issued for his removal; and then whether the applicant had been notified that his asylum claim had been refused. They were also asked to provide copies of the documents relevant to the applicant’s request for asylum, including the assessment made by the national authorities, the deportation order and the formal notification of his removal, but they failed to do so. The Government also failed to respond to the Court’s aforementioned questions and there are no documents in the case file to show that the applicant was notified of a formal deportation order. The Government solely submitted that the applicant’s asylum claim had been assessed, without specifying the outcome of the assessment.

47. All of the above leads the Court to conclude that the applicant - an asylum seeker and a legal resident in Turkey - was 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 proper assessment of his asylum claim.

48. In this regard, the Court emphasises that, in view of the importance attached to Article 3 of the Convention, the absolute character of the right guaranteed by Article 3 and the irreversible nature of the potential harm if the risk of ill-treatment materialised, it is for the national authorities to be as rigorous as possible and to carry out a careful examination of allegations under Article 3, in the absence of which the domestic remedies cannot be considered to be effective (see M.D. and M.A., cited above, § 66).

49. Hence, in the absence of an examination, by the national authorities, of the applicant’s claim that he would face a real risk of treatment contrary to Article 3 if removed to Iran or to Uzbekistan and of a legal procedure providing safeguards against unlawful deportation, the Court considers that the applicant’s deportation to Iran on 12 September 2008 amounted to a violation of Article 3 of the Convention (see M.D. and M.A., cited above, § 67).

II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION ON ACCOUNT OF THE CIRCUMSTANCES IN WHICH THE APPLICANT WAS DEPORTED TO IRAN ON 12 SEPTEMBER 2008

50. The applicant complained under Articles 3, 6 and 13 of the Convention that he had been unlawfully deported to Iran on 12 September 2008 without an individual assessment of his situation and claims, and whilst he was legally residing in Turkey, and that he had not been informed of the decision to deport him to Iran on 12 September 2008 and, thus, had had no effective domestic remedies to challenge it.

51. The Government submitted that the applicant’s claims were not substantiated.

52. The Court considers that this part of the application should be examined under Article 13 of the Convention alone. However, having regard to its reasoning which led it to conclude Article 3 of the Convention was breached in the present case, the Court finds nothing that would justify a separate examination of the same facts from the angle of Article 13 of the Convention. It therefore deems it unnecessary to rule separately on either the admissibility or the merits of the applicant’s complaints under this head (see M.D. and M.A., cited above, § 70).

III. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’S THREATENED DEPORTATION TO IRAN OR UZBEKISTAN

53. The applicant complained under Articles 2 and 3 of the Convention that he was currently under a threat of deportation to Iran or Uzbekistan, which would expose him to a clear risk of death or ill-treatment on account of his political opinions and religious beliefs. He also complained, under Articles 6 and 13 of the Convention, that the absence of domestic remedies prevented him from challenging his threatened deportation. He contended that as his identity documents had been confiscated by the police on 12 September 2008, he was unable to appoint a lawyer to take legal steps on his behalf.

54. The Court considers that the applicant’s complaints should be examined from the standpoint of Articles 3 and 13 of the Convention, which read as follows:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

55. The Government contested these claims.

A. The parties’ submissions

1. The Government

56. In their submissions dated 12 March 2012, the Government submitted that the applicant had been living in hiding in Turkey since 2008, during which time he had had the opportunity to pursue his asylum claims before the domestic authorities but had failed to do so. They therefore argued that the applicant had not exhausted the domestic remedies available to him. In support of their arguments, the Government submitted copies of decisions in three cases which concerned detention and removal of foreign nationals, examined by the Supreme Administrative Court. The Government further argued that Iran was a safe third country in so far as it concerned the applicant.

57. In the first of those cases, A.A., an Iranian refugee who was held in a removal centre, requested the Ministry of the Interior to release him and subsequently lodged a case with the Ankara Administrative Court. A.A. argued mainly that his detention was unlawful. On 17 September 2008 the Ankara Administrative Court ordered A.A.’s release as an interim measure and on 21 January 2009 the court annulled the administrative decision to detain him. On 20 May 2009 and 29 January 2010 the Supreme Administrative Court rejected the requests of the Ministry of the Interior for an interim measure and annulment of the Ankara Administrative Court’s judgment respectively (case no. 2009/3343).

58. The second decision submitted by the Government concerned the refusal of the Ministry of the Interior of the asylum claim of a certain M.Y.S., an Afghan national who had been recognised as a refugee under the UNHCR mandate, and the refusal to grant him a residence permit. The administrative decision was taken on 13 March 2009. Upon M.Y.S.’s request for its annulment, on 11 November 2009 the Ankara Administrative Court annulled the administrative decision in question. In 15 December 2010 the judgment of 11 November 2009 was upheld (case no. 2010/881).

59. The third case concerned a deportation order issued on 27 March 2009 against a certain G.M., an Afghan national, whose asylum claim had been rejected. On 16 December 2009 the Ankara Administrative Court annulled the removal order in question and on 16 March 2010 the Supreme Administrative Court rejected the Ministry of Interior’s request for the suspension of the execution of the judgment of 16 December 2009 (case no. 2010/2346).

60. In their further observations of 10 June and 16 July 2015, the Government contended that the Foreigners and International Protection Act (Law no. 6458), which entered into force on 11 April 2014, reinforced the protection of asylum seekers and refugees in Turkey. They further stated that it was unknown to them whether the applicant was still in Turkey.

61. In reply to the Court’s request dated 7 April 2015 to submit copies of administrative courts’ decisions in cases concerning removal of asylum seekers issued subsequent to the entry into force of Law no. 6458, the Government submitted three judgments rendered by Ankara and Istanbul Administrative Courts and a decision of the Supreme Administrative Court annulling deportation orders given by administrative authorities.

62. The judgment issued by the Ankara Administrative Court on 21 April 2015 contained an examination of the lawfulness, in the light of the provisions of Law no. 6458, of a deportation order issued on 28 June 2014 in respect of a Russian national who had been married to a Turkish national and whose residence permit had been annulled following her divorce (case no. 2014/2246).

63. The judgments of the Istanbul Administrative Court dated 20 March and 17 April 2015 contained an examination of the lawfulness, in the light of the provisions of Law no. 6458, of deportation orders issued on 7 October 2014 and 9 April 2014 against two foreign nationals who had both been suspected of having committed criminal offences respectively (case nos. 2014/2430 and 2014/2085).

64. The Supreme Administrative Court’s decision dated 30 May 2015 (case no. 2009/8048) contained an examination of the lawfulness of an administrative decision dated 29 April 2009 to remove from Turkey a Chinese national of Uighur origin, whose asylum application had been rejected. In conducting its examination the Supreme Administrative Court did not refer to Law no. 6458, but to the legal provisions governing expulsion of foreign nationals which had been in force prior to the entry into force of Law no. 6458.

2. The applicant

65. In his submissions dated 13 June 2012, the applicant submitted that he was in Turkey and risked deportation to Iran or Uzbekistan if apprehended by the national authorities. In response to the Government’s objection regarding the rule of exhaustion of domestic remedies, the applicant submitted that he had not been served with a deportation order and therefore he was unable to challenge any decision before the administrative courts to remove him from Turkey. He further maintained that, in any event, the available legal remedies were not effective, as they did not have automatic suspensive effect.

66. In his submissions dated 30 April 2015, the applicant once again contended that he was in Turkey, and believed that he would be removed from Turkey if he applied to the national authorities or was apprehended by them. He contended that there were serious shortcomings in the application of Law no. 6458. In this regard, he submitted that some asylum seekers were removed from Turkey to unsafe countries without the opportunity to have access to domestic remedies and some others were still being held in administrative detention despite court orders for their release. He also noted that there were approximately ten applications pending before the Constitutional Court of Turkey regarding the deportation of asylum seekers to Syria, Ukraine, the United Arab Emirates and Russia before the merits of their asylum applications had been examined.

67. In support of his claims, the applicant submitted, inter alia, documents concerning a Russian national of Chechen origin. According to a letter sent to the police branch at the Istanbul Atatürk Airport by the Istanbul police headquarters, that person was to be deported on 1 April 2015 to Ukraine before his asylum claim was examined and while the proceedings brought against the removal order were pending before the Istanbul Administrative Court.

68. The applicant also submitted a press statement made by eight non-governmental organisations in Turkey on 23 February 2015 condemning the expulsion of Uzbek nationals, including women and children, to Syria. According to the press statement, in August 2014 and January and February 2015, a number of Uzbek and Chechen nationals who had been held in a removal centre in south Turkey were expelled to a region of Syria controlled by the Islamic State of Iraq and Al-Sham (ISIS) without having had access to their lawyers and the opportunity to challenge the removal orders. According to the press statement, three of these foreign nationals were executed by ISIS. The applicant’s lawyer also submitted some news articles dated 22 January and 10 February 2015, according to which Uzbek refugees were detained in foreigners’ removal centres for no reason. The lawyer argued that, in view of these developments, the applicant was now under the threat of deportation to Uzbekistan, Iran or Syria.

B. The Court’s assessment

69. The Court does not find it necessary to examine the Government’s objection that the applicant failed to exhaust domestic remedies, since it considers that this part of the application is inadmissible for the reasons set out below.

70. The Court observes at the outset that the respondent State did not raise any objection as to the Court’s competence ratione personae in relation to the applicant’s complaints under this head. In Mustafa Tunç and Fecire Tunç v. Turkey ([GC], no. 24014/05, §§ 122-124, 14 April 2015), the Grand Chamber held that any plea of inadmissibility, including lack of victim status as was the plea in that case, should in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of an application, unless the events which were alleged to have deprived the applicant of his or her victim status had occurred after the decision on admissibility, or where the objection concerned a matter which went to the Court’s jurisdiction rather than a question of admissibility in the narrow sense of that term. In the present case, the issue of victim status was raised by the Court on 7 April 2015, when the Court invited the parties to submit further written observations on the admissibility and merits of the case, including on the question of victim status. Furthermore, the issue of victim status and the risk of deportation are closely linked to the new Foreigners and International Protection Act which entered into force on 11 April 2014 and which has been invoked by the Government in the context of exhaustion of domestic remedies. Therefore, the Court finds that the issue of victim status calls for consideration by the Court.

71. In cases where applicants have faced expulsion or extradition, the Court has consistently held that an applicant cannot claim to be the “victim” of a measure which is not enforceable. It has adopted the same stance in cases where execution of a deportation or extradition order has been stayed indefinitely or otherwise deprived of legal effect, and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts (see ibid., § 85 and the cases cited therein).

72. The Court further reiterates that if an applicant has not yet been expelled or extradited when the Court examines the case, the relevant time for the assessment of whether a real risk of treatment contrary to Article 3 exists will be that of the proceedings before the Court (see, among many others, Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 69, ECHR 2005-I; Saadi, cited above, § 133; Chahal v. the United Kingdom, 15 November 1996, §§ 85-86, Reports of Judgments and Decisions 1996-V; Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 215, 28 June 2011; Mohammadi v. Austria, no. 71932/12, § 63, 3 July 2014; and F.G., cited above, § 115). In the Court’s view, the same principle applies in the assessment of an applicant’s victim status, that is to say, the assessment of the existence of the risk of expulsion or extradition from a country, in cases of expulsion and extradition where the applicant has not been removed at the time of the examination of the case by the Court.

73. In the present case, the Court observes at the outset that the Government submitted that they did not have any information as to whether the applicant was in Turkey. However, given that he was interviewed by officers from the UNHCR’s Ankara office in 2013 and 2014 (see paragraph 24 above) and that the parties did not submit any information or document demonstrating that he had left Turkey, the Court finds credible the applicant’s submission that he is living in hiding in Turkey. In this regard, the Court further notes that neither the Government nor the applicant have submitted any information or document demonstrating that between the date on which the applicant re-entered Turkey in September 2008 and the present day, a deportation order with legal effect, which is currently valid, was issued in respect of the applicant. In the absence of such a deportation order, the Court finds that the applicant does not currently appear to face an imminent risk of removal from Turkey.

74. However, the Court has already found that the applicant was removed to Iran in 2008 without a deportation order (see paragraph 47 above). In this connection, the Court recalls that in the case of Abdolkhani and Karimnia (cited above), the Government’s objection regarding the applicants’ victim status based on the absence of deportation orders issued in their respect was rejected. In that judgment, the Court noted that the national authorities had deported the applicants to Iraq on at least one occasion without a deportation order or without one having been served on them. It therefore considered that the absence of deportation orders could not lead to the conclusion that the applicants did not risk being deported to Iraq or Iran by the Turkish authorities (see Abdolkhani and Karimnia, cited above, §§ 54 and 55).

75. In its judgment in Ahmadpour v. Turkey (no. 12717/08, § 37, 15 June 2010), the Court examined the merits of the applicant’s allegations that she would be exposed to a real risk of death or ill-treatment if removed to Iran, even though she had been granted a temporary residence permit in Turkey. The Court noted that the residence permit had not been granted following or pending an examination of the applicant’s claims regarding the alleged risks that she would face in Iran, and had been valid for only a short period of time. Moreover, at the time of the adoption of the judgment, the applicant’s residence permit was in the process of being renewed by the national authorities. The Court therefore considered that the applicant was still at risk of being removed to Iran, despite the fact that she had been legally resident in Turkey.

76. The present case however differs from the cases above in that the legal framework governing the removal of foreign nationals from Turkey at the time of the adoption of the aforementioned judgments (see Abdolkhani and Karimnia, cited above, §§ 29-44) was different from the legislation currently in force.

77. In this connection, the Court notes that on 11 April 2014 the new Foreigners and International Protection Act (Law no. 6458) entered into force in Turkey. Sections 61 to 90 of the Act concern the principles and rules governing applications for international protection, in particular, the types of international protection available; the procedure for processing applications for international protection; the issuing of “international protection identity documents” for persons seeking asylum; and the rights and obligations of persons demanding and granted international protection. The Act also provides administrative and judicial remedies against decisions of the national authorities and sets out the procedural safeguards within those remedies.

78. The Court further observes that Sections 52 to 56 and 60 of the same Act contain rules regarding the removal of foreign nationals from Turkey and legal safeguards against unlawful and arbitrary deportation, such as the obligation to notify the persons concerned or their representatives of the issuing of deportation orders and the right to appeal against deportation decisions before the administrative courts, with automatic suspensive effect.

79. In this regard, the Court observes that the Government did not provide to the Court any domestic judicial decision in cases concerning removal of asylum seekers delivered subsequent to the entry into force of Law no. 6458 and containing an application of the provisions of the Law in issue. Besides, the applicant argued that there had been reports of deportation of asylum seekers pending the outcome of their asylum requests and without having been provided with the opportunity to have access to their lawyers. However, in the present case, the Court is not called upon to judge whether the remedies provided in Law no. 6458 are effective, in law and in practice, within the meaning of Articles 13 and 35 of the Convention. Besides, the information and documents submitted by the parties in support of their additional observations of 30 April, 10 June and 16 July 2015 are insufficient in order to conclude that the applicant is still under the same threat of illegal deportation as he faced in 2008. In the light of the aforementioned provisions of Law no. 6458, there appear to be strong indications that, following the entry into force of the new legislation, it is open to the applicant to contact the national authorities in order to claim international protection and to request to be provided with an identity document, if, as he alleged, his documents were confiscated.

80. Furthermore, in the event of a fresh deportation order in the future, it would be open to the applicant to resort to a judicial procedure in which his claim of possible ill-treatment and/or death in the country of destination would be assessed domestically in accordance with the new procedures provided for by Law no. 6458 (see Asalya v. Turkey, no. 43875/09, § 89, 15 April 2014).

81. In these circumstances, the Court considers that the applicant cannot be considered to be a victim within the meaning of Article 34 of the Convention in relation to his complaints concerning his threatened deportation from Turkey.

82. It follows that these complaints are incompatible ratione personae with the provisions of the Convention, within the meaning of Article 35 § 3, and must be rejected in accordance with Article 35 § 4.

83. The Court stresses that the above finding is without prejudice to any examination that it might carry out regarding the application of the provisions of Law no. 6458 in the future, and does not prevent the applicant from lodging a new application with the Court and from making use of the available procedures, including under Rule 39 of the Rules of Court, in respect of any new circumstances that may arise, in compliance with the requirements of Articles 34 and 35 of the Convention (see Bakoyev v. Russia, no. 30225/11, § 100, 5 February 2013; Budrevich v. the Czech Republic, no. 65303/10, § 69, 17 October 2013; and Asalya, cited above, § 92).

IV. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION

84. The applicant complained under Article 5 of the Convention that his detention by the security forces prior to his removal on 12 September 2008 had been unlawful, that he had not been informed of the reasons for his deprivation of liberty in the course of his deportation, and that he had had no means of challenging its lawfulness.

The Court considers that these complaints should be examined from the standpoint of Article 5 §§ 1, 2 and 4 of the Convention, which read as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

...”

85. The Government contested the applicant’s allegations.

A. Admissibility

86. 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.

B. Merits

1. Alleged violation of Article 5 § 1 of the Convention

87. The applicant maintained his allegation that he had been unlawfully deprived of his liberty on 12 September 2008.

88. The Government submitted that the applicant had been deported on 12 September 2008, but had not been deprived of his liberty.

89. The Court has already examined the same grievance in the case of Abdolkhani and Karimnia (cited above, §§ 125-135), 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.

90. In the instant case, the Court observes that it is not in dispute between the parties that the applicant was deported on 12 September 2008. Given that the applicant 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 applicant’s detention lasted for a brief period has no impact on its “unlawful” nature (see Ghorbanov and Others, cited above, § 43).

There has therefore been a violation of Article 5 § 1 of the Convention.

2. Alleged violation of Article 5 § 2 of the Convention

91. The applicant reiterated his allegations.

92. The Government did not submit any observations on this point.

93. The Court notes that the Government were explicitly requested to make submissions as to whether the applicant had been informed of the reasons for his detention and to provide the documents relevant to his detention, 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 applicant’s detention on 12 September 2008 were never communicated to him by the national authorities (see Ghorbanov and Others, cited above, § 46).

There has therefore been a violation of Article 5 § 2 of the Convention.

3. Alleged violation of Article 5 § 4 of the Convention

94. The applicant reiterated his allegations.

95. The Government did not submit any observations on this point.

96. The Court observes that according to the applicant’s submissions, he was detained for a few hours before his removal to Iran on 12 September 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 applicant’s complaint under Article 5 § 4 of the Convention (see Slivenko v. Latvia [GC], no. 48321/99, §§ 158-159, ECHR 2003-X; M.B. and Others v. Turkey, no. 36009/08, § 45, 15 June 2010; and Ghorbanov and Others, cited above, § 49).

V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

97. The applicant contended under Article 2 of the Convention that his deportation to Iran had exposed him to various deadly hazards, such as being kidnapped by people smugglers and being shot by border guards. The applicant further complained under Article 3 of the Convention that he had been ill-treated by security forces during his deportation to Iran on 12 September 2008. He claimed under Article 8 of the Convention that his deportation had infringed his right to respect for private and family life. He complained under Article 14 that he had been discriminated against by the State authorities because of his nationality. Lastly, he contended under Article 4 of Protocol No. 4 and Article 1 of Protocol No. 7 that he and the other Uzbek asylum seekers had been deported collectively and in breach of the procedural safeguards relating to the expulsion of aliens.

98. In its decision of 24 August 2010 in the case of Ghorbanov and Others ((dec.), cited above), the Court declared the same complaints brought by the other Uzbek asylum seekers who had been deported to Iran along with the applicant inadmissible. The Court found that the complaints under Articles 2, 3, 8 and 14 of the Convention were manifestly ill-founded. In particular, the applicants’ complaints that they had been taken hostage by people-smugglers, that they had run the risk of being shot by border patrol officers and that they had been ill-treated by police officers during the two deportation incidents were considered to be unsubstantiated due to the fact that the applicants had not provided any evidence or detailed information. The Court considered therefore that the applicants had not laid the basis of an arguable claim in respect of these complaints. The Court further held that, since Turkey had not ratified Protocols Nos. 4 and 7, the complaints under Article 4 of Protocol No. 4 and Article 1 of Protocol No. 7 were incompatible ratione personae with the provisions of the Convention.

99. The Court finds no particular circumstances in the instant case which would require it to depart from its conclusions in the aforementioned decision. Therefore, the applicant’s complaints under Articles 2, 3, 8 and 14 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. Similarly, the applicant’s complaints under Article 4 of Protocol No. 4 and Article 1 of Protocol No. 7 are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

100. 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

101. The applicant claimed 190 Turkish liras (TRY) (approximately 83 euros (EUR)) in respect of pecuniary damage. He alleged that the police had confiscated all his personal belongings when he had been arrested and had never returned his money or his mobile phone. He further claimed EUR 40,000 in respect of non-pecuniary damage.

102. The Government submitted that the applicant’s claims were excessive.

103. The Court notes that it cannot be established, on the basis of the case file, whether the applicant was in possession of the aforementioned items when he was detained. It therefore rejects the applicant’s claim regarding the alleged pecuniary damage. On the other hand, it considers that the applicant must have suffered non-pecuniary damage which cannot be compensated for solely by the finding of violations. The Court therefore awards the applicant EUR 6,500 in respect of non-pecuniary damage.

B. Costs and expenses

104. The applicant also claimed EUR 3,050 for his lawyer’s fee and EUR 590 for the other costs and expenses incurred before the Court. In this connection, he submitted a timesheet showing that his legal representative had carried out thirty hours and thirty minutes’ legal work, an agreement concluded with his representative according to which his representative’s tariff was EUR 100 per hour, a sheet containing information on postal, translation and photocopying expenses, a number of telephone bills and an invoice for postal expenses.

105. The Government contested this claim, pointing out that only costs actually incurred could be reimbursed.

106. 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 3,052 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.

C. Default interest

107. 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 complaint under Article 3 concerning the applicant’s deportation to Iran on 12 September 2008 and the complaints under Article 5 concerning the alleged unlawfulness of his detention on 12 September 2008, the alleged failure of the authorities to inform the applicant of the reasons for his detention and the alleged lack of a remedy whereby he could challenge the lawfulness of his detention admissible;

2. Holds that there is no need to examine the admissibility or the merits of the complaint under Article 13 of the Convention concerning the applicant’s deportation to Iran on 12 September 2008;

3. Declares and the remainder of the application inadmissible;

4. Holds that there has been a violation of Article 3 of the Convention on account of the applicant’s deportation to Iran on 12 September 2008;

5. Holds that there has been a violation of Article 5 § 1 of the Convention;

6. Holds that there has been a violation of Article 5 § 2 of the Convention;

7. Holds that there is no need to examine the complaint under Article 5 § 4 of the Convention;

8. Holds

(a) that the respondent State is to pay the applicant, 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 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 3,052 (three thousand and fifty-two euros), less EUR 850 (eight hundred and fifty euros) granted by way of legal aid, plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(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;

9. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 10 May 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Julia Laffranque
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> BABAJANOV v. TURKEY - 49867/08 (Judgment (Merits and Just Satisfaction) : Court (Second Section)) [2016] ECHR 410 (10 May 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/410.html Cite as: (2018) 67 EHRR 32, [2016] ECHR 410