ECtHR - Batyrkhairov v. Turkey (application no. 69929/12) and Amerkhanov v. Turkey (application no. 16026/12), 5 June 2018

Tuesday, June 5, 2018

On 5 June 2018, the European Court of Human Rights (ECtHR) ruled on cases Batyrkhairov v. Turkey (application no. 69929/12) and Amerkhanov v. Turkey (application no. 16026/12), which concerned two Kazakhstani nationals who were detained at the Kumkapı Foreigners’ Removal Centre in Turkey prior to being deported to Kazakhstan. Their applications for international protection had been rejected by the Turkish authorities.

First, the ECtHR recalled that the Turkish authorities were under an obligation to address the applicants’ arguments against their removal and to carefully assess and dispel any doubts about possible ill-treatment in their country of origin. In both cases, the ECtHR found that the applicants had been removed in the absence of a legal procedure providing safeguards against unlawful removal and without a proper assessment of their asylum claim. By solely relying upon the terrorism-related charges against the applicants and on the fact that their asylum application had been assessed, the Turkish authorities failed to comply with the procedural obligations under Article 3 ECHR. Moreover, in Batyrkhairov v. Turkey, the ECtHR considered that the applicant’s removal to Kazakhstan constituted a circumvention of the domestic extradition procedure.

In both cases, the ECtHR found that no particular circumstances required it to depart from its findings in Abdolkhani and Karimnia v. Turkey. Here the Court found that in the absence of clear legal provisions in Turkish law establishing the procedure for ordering detention with a view to deportation, the applicants’ detention was not “lawful” for the purposes of Article 5(1) ECHR. Similarly, the ECtHR ruled, in line with its previous jurisprudence (e.g. Tehrani and others v. Turkey), that the Turkish legal system did not provide persons in the applicants’ position with a remedy whereby they could obtain judicial review of the lawfulness of their detention, in violation of Article 5(4) and (5). In the case of Amerkhanov v. Turkey, the ECtHR found that nothing in the file indicated that the applicant had been informed of the reasons for his detention, in violation of Article 5(2) ECHR.

Finally, the ECtHR recalled that it has already found, in its previous decisions, a violation of Article 3 ECHR on account of the material conditions of detention at the Kumkapı Foreigners’ Removal Centre, in particular because of the clear evidence of overcrowding and the lack of access to outdoor exercise (e.g. Alimov v. Turkey). According to the Court, no evidence is capable of justifying a departure from those conclusions. Therefore, the detention conditions at that removal centre, coupled with the possible anxiety caused by the uncertainty as to when the detention would end, led the ECtHR to conclude that there had been a violation of Article 3 ECHR.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.



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