ECtHR decision in Asalya v. Turkey, Application No. 43875/09, 15 April 2014

Wednesday, April 23, 2014

The Applicant is a Palestinian paraplegic who is wheel-chair bound, which he alleges results from injuries sustained in an Israeli missile attack on his house in the Gaza strip in 2007. He was taken to Turkey in March 2008 by a humanitarian organisation, where he married his physiotherapist, a Turkish national, in April 2009. A few months later, he was detained pending deportation in Kumkapı Foreigners’ Admission and Accommodation Centre on suspicion of involvement in international terrorism. A Turkish court granted a stay of execution on the deportation, but did not adjudicate on the lawfulness of the detention, and the Applicant was released by a decision of the Interior Ministry 7 days after his initial apprehension. In April 2010, after a Rule 39 Interim Measure from the ECtHR, the deportation order was quashed. In March 2013, he was granted a one year residence permit, with the possibility of renewal, on the basis of his family life in Turkey.

The Applicant complained before the ECtHR that his detention conditions, including squat toilets and no lift, was tantamount, in view of his disability, to a violation of Article 3 (prohibition of ill-treatment) ECHR. He also submitted under Article 5(1), (4) and (5) (right to liberty) ECHR that his detention was unlawful, lacked effective judicial review, and did not entail an enforceable right to compensation. He also complained, under Article 13 (right to an effective remedy), that Turkish law afforded him no opportunity to challenge his deportation under Articles 2 (right to life), 3 and 8 (right to family life).

The ECtHR, taking detention conditions first, concluded that the Turkish authorities had failed to cater for the Applicant’s special needs in detention. In particular, the inaccessibility of sanitation facilities, and the Applicant being forced to sleep on a hard table in an office in spite of his serious spinal injury, led the ECtHR to find a violation of Article 3 in this respect.

On Article 5(1), concerning the lawfulness of his detention, the ECtHR reiterated a previous judgment, which found that ‘the absence of clear legal provisions in Turkish law establishing the procedure for ordering detention with a view to deportation’ was a violation of that Article. This was especially so given that, on the third day of his week-long detention, a Turkish judicial authority had stayed the execution of deportation. Finding also a violation of Article 5(4), the ECtHR noted that at no point did the Turkish court examine the lawfulness of the detention. The ECtHR also saw that ‘his release did not result from a review of the legality of his detention by a competent court … but was brought about by a purely discretionary decision of the executive, which could be reversed at any moment’. Article 5(5) was also contravened since the Turkish Government couldn’t point to any examples of individuals being compensated for wrongful detention.

The ECtHR also found that the lack of automatic suspensive effect in judicial review of deportation orders, and the failure of the Applicant’s deportation order to specify the location to which he would be deported, constituted a violation of Article 13 in conjunction with Articles 2 and 3. On top of a failure to disclose to the Applicant the evidence against him, and the Turkish court appearing to take the government’s assertions at face value, the Court did not in any way consider whether deportation would interfere with the Applicant’s family life. On this basis, a violation of Article 13 with Article 8 was also found.

The ECtHR ordered 9,750 Euros to be paid to the Applicant in respect of non-pecuniary damage.

Read the judgment of the ECtHR.

18 April 2014

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Effective remedy (right to)
Family unity (right to)
Inhuman or degrading treatment or punishment
Right to remain pending a decision (Suspensive effect)
Vulnerable person