SECOND SECTION
\nCASE OF BATYRKHAIROV v. TURKEY
\n(Application no. 69929\/12)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n5 June 2018<\/p>\n
FINAL
\n05\/09\/2018<\/p>\n
This judgment has become final under Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n
In the case of Batyrkhairov v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Chamber composed of:<\/p>\n Robert Spano, President, Having deliberated in private on 15 May 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 69929\/12) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Kazakhstani national, Mr Arman Batyrkhairov (\u201cthe applicant\u201d), on 10 September 2012.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr A. Y\u0131lmaz, Ms S.N. Y\u0131lmaz and Mr\u00a0Buhari\u00c7etinkaya, lawyers practising in Istanbul. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0On 12 December 2016 the complaints concerning the applicant\u2019s deportation to Kazakhstan and the allegedly poor conditions of the applicant\u2019s detention at the Kumkap\u0131 Foreigners\u2019 Removal Centre, the lack of effective remedies in respect of the above-mentioned complaints, the alleged unlawfulness of the applicant\u2019s detention at the Kumkap\u0131 Foreigners\u2019 Removal Centre, and the lack of communication of information to the applicant regarding the reasons for his detention \u2013as well as the complaints concerning the lack of an effective remedy to challenge the lawfulness of his detention and to request compensation\u2013 were communicated to the Government, and the remainder of the application was declared inadmissible,pursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1980 and is detained in Atyrau, Kazakhstan.<\/p>\n A.\u00a0\u00a0The applicant\u2019s arrival in Turkey and the asylum procedure<\/strong><\/p>\n 5.\u00a0\u00a0According to the applicant\u2019s submissions, he left Kazakhstan in 2008 and lived in Saudi Arabia and Syria as a student until June 2011. He did not wish to return to his country as a number of people had been detained on charges of religious extremism in Kazakhstan and some of his friends had left the country after coming under pressure from the Kazakhstan government because of their political and religious identity.<\/p>\n 6.\u00a0\u00a0In June 2011 the applicant arrived in Turkey. The Government submitted that subsequent to his arrival in Turkey, two entry bans were issued against him on the grounds that he was suspected of having provided logistical support to foreign nationals who were engaged in international terrorism.<\/p>\n 7.\u00a0\u00a0On an unspecified date the applicant was taken into police custody and thereafter transferred to the Kumkap\u0131 Foreigners\u2019 Removal Centre with a view to his removal to Kazakhstan. As the applicant applied for asylum while in detention, on 28 October 2011 he was released pending the determination of his asylum application. On the same day he was notified that he should go and reside in Denizli province.<\/p>\n 8.\u00a0\u00a0On 4 November 2011 the applicant lodged his asylum application again \u2013 this time with the Denizli Governor\u2019s Office. On the same day a police officer from Denizli Security Headquarters held a preliminary interview with the applicant. The applicant stated that he had learned that he was being sought for by the Kazakhstan authorities on terrorism charges and asked to be granted leave to stay in Turkey. He submitted that his removal to Kazakhstan would expose him to a risk of death. According to a report dated 22 November 2011 concerning the applicant\u2019s interview of 4\u00a0November 2011, the interpreter who was appointed by the police authorities noted that the applicant spoke Turkish.<\/p>\n 9.\u00a0\u00a0On 28 November 2011 the applicant was notified that his asylum application had been rejected. According to the report of 22\u00a0November 2011, the police officer who had interviewed the applicant found that the latter had failed to submit any concrete evidence concerning his nationality, identity and the problems he had experienced in Kazakhstan. The officer, however, found it established that the applicant feared to be returned to his country and that it was known to the Turkish authorities that he would be prosecuted if returned to Kazakhstan.<\/p>\n 10.\u00a0\u00a0On 29 November 2011 the applicant objected to the rejection of his asylum application. He once again submitted that he would be exposed to a real risk of death if he were to be removed to Kazakhstan.<\/p>\n 11.\u00a0\u00a0According to the Government\u2019s submissions, on 26 December 2011 his objection was dismissed.<\/p>\n 12.\u00a0\u00a0On 12 January 2012 the applicant lodged an application to be allowed to leave Turkey with the Denizli Security Headquarters and informed the police that he had been offered a visa to enter and live in Egypt.<\/p>\n 13.\u00a0\u00a0On 18 January 2012 the police authorised the applicant to leave the country.<\/p>\n B.\u00a0\u00a0Extradition proceedings<\/strong><\/p>\n 14.\u00a0\u00a0According to a document dated 6 January 2012 sent by the Deputy Director of the General Police Headquarters to a number of police authorities, during a meeting held on 4 January 2012 the ambassador of Kazakhstan in Ankara requested the Turkish Interior Minister to extradite Kazakhstan nationals who had been involved in terrorist acts and in respect of whom Kazakhstan had issued wanted notices (\u201cRed Notices\u201d) via Interpol. A formal extradition request in respect of such persons was submitted by the Kazakhstan embassy in Ankara to the Ministry of Foreign Affairs on 31 December 2011. According to the document prepared by the embassy, the applicant and four other persons were members of the \u201cIslamic Jihad Union\u201d, a terrorist organisation which carried out terrorist attacks in the western region of Kazakhstan. They had been detained by the Turkish authorities upon receipt of a Red Notice via Interpol by Kazakhstan. The embassy pointed out that subsequent to their asylum claims, four of those persons, including the applicant, had been released from detention in Turkey. The Kazakhstan authorities considered that these five persons had been in the process of preparing a new terrorist attack in their country and that following their release four of them had organised a terrorist attack in the Atyrau province of Kazakhstan, in co-operation with another terrorist organisation, Jund al-Khilafa (\u201cSoldiers of the Caliphate\u201d). The embassy accordingly requested the Turkish authorities not to grant asylum to them and to extradite them to Kazakhstan.<\/p>\n 15.\u00a0\u00a0On 19 January 2012, while he was waiting at Istanbul Atat\u00fcrk Airport to board a flight to Egypt, the applicant was taken into police custody on the basis of the extradition request submitted to the Turkish authorities by the Kazakhstan embassy.<\/p>\n 16.\u00a0\u00a0On 23 January 2012 the Interpol-Europol department attached to the General Police Headquarters informed the Ministry of Justice and a number of security departments that a Red Notice had been issued by Kazakhstan via Interpol in respect of the applicant on the basis of terrorism-related offences.<\/p>\n 17.\u00a0\u00a0On 24 January 2012 the Bak\u0131rk\u00f6y Magistrates Court ordered the applicant\u2019s detention within the context of the extradition proceedings for a period of forty days. The applicant was then placed in detention in Maltepe Prison, in Istanbul.<\/p>\n 18.\u00a0\u00a0On 25 January 2012 the applicant lodged a petition with the Bak\u0131rk\u00f6y Assize Court and challenged his detention. In his petition, he stated, inter alia, that a person who would be subjected to torture or other forms of ill-treatment in his country of origin should not be extradited to that country.<\/p>\n 19.\u00a0\u00a0On 27 January 2012 the Bak\u0131rk\u00f6y Assize Court dismissed the applicant\u2019s petition challenging his detention.<\/p>\n 20.\u00a0\u00a0On 28 February 2012 the Bak\u0131rk\u00f6y Assize Court rejected the extradition request submitted by the Kazakhstan authorities. During the hearing held on the same day the assize court did not find it necessary to appoint an interpreter for the applicant as he spoke Turkish. According to the reasoning contained in the court\u2019s decision, in his defence submissions the applicant had contended that he had been wrongly accused of being a member of al\u2011Qaeda or Islamic Jihad and had asked the court not to extradite him to Kazakhstan. The Bak\u0131rk\u00f6y Assize Court held that the applicant could not be extradited to Kazakhstan because the charge against him in Kazakhstan fell within the scope of one of the offence categories, precluding extradition, listed in Article 18 \u00a7 1 (b) of the Criminal Code, as in force at the material time (see paragraph 30 below). The court also ordered the applicant\u2019s release from detention. The decision of 28 February 2012 became final as no appeal was lodged against it.<\/p>\n C.\u00a0\u00a0The applicant\u2019s removal from Turkey<\/strong><\/p>\n 21.\u00a0\u00a0On 28 February 2012 the applicant was released from prison but was immediately transferred to the Kumkap\u0131 Foreigners\u2019 Removal Centre in Istanbul. According to a document dated 29 February 2012, the applicant was informed that he was being held pending the outcome of the deportation procedure conducted in this respect.<\/p>\n 22.\u00a0\u00a0On 7 March 2012 the Deputy Director of General Security ordered the Istanbul Police Headquarters to deport the applicant.<\/p>\n 23.\u00a0\u00a0On 12 March 2012, while in detention, the applicant appointed his representatives to undertake the necessary legal and procedural actions on his behalf before the domestic authorities and the Court by way of a issuing a power of attorney before a notary public.<\/p>\n 24.\u00a0\u00a0According to the applicant\u2019s submissions, on 21 March 2012, when Mr\u00a0Y\u0131lmaz, one of his representatives, went to the Kumkap\u0131 Foreigners\u2019 Removal Centre to meet him, he was orally informed by officers at the centre that the applicant had been deported to Kazakhstan on 12 March 2012.<\/p>\n 25.\u00a0\u00a0Upon a request by the applicant\u2019s lawyer, on 31 May 2012 the Istanbul Police Headquarters sent a letter to the applicant\u2019s lawyer informing him that the applicant had been deported to Kazakhstan on 12\u00a0March 2012.<\/p>\n 26.\u00a0\u00a0In a letter dated 10 May 2014, Mr Y\u0131lmaz submitted that the applicant had been remanded in custody and placed in Atyrau Prison upon his return to Kazakhstan. The lawyer stated that he did not have information as to whether the applicant had been subjected to ill-treatment in Kazakhstan given that the applicant\u2019s family members had refrained from answering his questions regarding that matter during their telephone conversations with him.<\/p>\n D.\u00a0\u00a0The conditions of detention at the Kumkap\u0131 Foreigners\u2019 Removal Centre<\/strong><\/p>\n 1.\u00a0\u00a0The applicant\u2019s account<\/em><\/p>\n 27.\u00a0\u00a0Between 28 February and 12 March 2012 the applicant was detained at the Kumkap\u0131 Foreigners\u2019 Removal Centre. The applicant claimed that the centre had been overcrowded at the time of his detention. He had not been allowed exercise outdoors or any other type of social activity throughout his detention. The applicant further alleged that there had been hygiene problems at the centre and that the quantity of the food provided had also been poor.<\/p>\n 2.\u00a0\u00a0The Government\u2019s account<\/em><\/p>\n 28.\u00a0\u00a0The Government submitted that the Kumkap\u0131 Foreigners\u2019 Removal Centre, where the applicant had been held, had a capacity of 300 persons and that a total of between 100 and 140 persons had been held during the period between 28 February and 12 March 2012. Detainees were accommodated on three floors: the first two floors were reserved for male detainees, and the third floor for females. There were four dormitory rooms on the first floor, respectively measuring 50, 58, 76 and 84 sq. m. On the second floor there were five dormitories measuring 50, 58, 69, 76 and 84\u00a0sq.\u00a0m. There was a total of 120 bunk beds in the ten rooms reserved for male detainees and all rooms received natural light. There were also five showers and six toilets per floor, as well as a cafeteria measuring 69\u00a0sq.\u00a0m, where breakfast, lunch and dinner were served daily on each floor. The detainees had the right to outdoor exercise if the physical conditions and the number of staff available allowed. A doctor was present on the premises every week and the detainees also had access to medical care in cases of emergency. As for the hygiene in the facility, there were six cleaning staff working full time.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n 29.\u00a0\u00a0A description of the relevant domestic law and practice, as in force at the material time, regarding the expulsion of foreign nationals can be found in Abdolkhani and Karimnia v. Turkey (no. 30471\/08, \u00a7\u00a7 29-43, 22\u00a0September 2009).<\/p>\n 30.\u00a0\u00a0The relevant parts of Article 18 \u00a7 1 of the Criminal Code, which was still in force at the material time, read as follows:<\/p>\n \u201cA foreign national accused … of a criminal offence allegedly committed in a foreign country may be returned upon request to that country for prosecution … However, an extradition request shall be rejected …<\/p>\n …<\/p>\n b)\u00a0\u00a0If\u00a0the act [in question] is in the nature of a speech offence, a political offence or a military offence …\u201d<\/p>\n III.\u00a0\u00a0RELEVANT INTERNATIONAL MATERIALS<\/p>\n A.\u00a0\u00a0United Nations Documents<\/strong><\/p>\n 1.\u00a0\u00a0Concluding Observations of the United Nations Committee against Torture regarding Kazakhstan dated 12 December 2008 and 12\u00a0December 2014<\/em><\/p>\n 31.\u00a0\u00a0In its Concluding Observations of 12 December 2008 on Kazakhstan (CAT\/C\/KAZ\/CO\/2) the UN Committee against Torture made the following observations:<\/p>\n \u201c…7.\u00a0\u00a0The Committee is concerned about consistent allegations concerning the frequent use of torture and ill-treatment, including threat of sexual abuse and rape, committed by law-enforcement officers, often to extract \u201cvoluntary confessions\u201d or information to be used as evidence in criminal proceedings, so as to meet the success criterion determined by the number of crimes solved (arts. 2, 11 and 12) …<\/p>\n 8.\u00a0\u00a0The Committee is particularly concerned about allegations of torture or other ill-treatment in temporary detention isolation facilities (IVSs) and in investigation isolation facilities (SIZOs) under the jurisdiction of the Ministry of Internal Affairs or National Security Committee (NSC), especially in the context of national and regional security and anti-terrorism operations conducted by the NSC. The Committee notes with particular concern reports that the NSC has used counter-terrorism operations to target vulnerable groups or groups perceived as a threat to national and regional security, such as asylum-seekers and members or suspected members of banned Islamic groups or Islamist parties (art. 2) …\u201d<\/p>\n 32.\u00a0\u00a0A document entitled \u201cList of issues prior to the submission to the third periodic report of Kazakhstan\u201d (CAT\/C\/KAZ\/3), examined by the UN\u00a0Committee Against Torture at its forty-fifth session in November 2010 and published in February 2011, states, in so far as relevant:<\/p>\n \u201c …Article 2<\/p>\n 3.\u00a0\u00a0According to information before the Committee since the consideration of the previous periodic report in 2008, torture and ill-treatment, including the threat of sexual abuse and rape, committed by law-enforcement officials, remain an issue of serious concern in the State party, and do not occur in isolated or infrequent instances.\u201d<\/p>\n 33.\u00a0\u00a0In its Concluding Observations of 12 December 2014 on Kazakhstan (CAT\/C\/KAZ\/CO\/3), the UN Committee against Torture made the following observations:<\/p>\n \u201c…7.\u00a0\u00a0While welcoming the measures taken by the State party aimed at strengthening laws and policies concerning its protection of human rights and prevention of torture and ill-treatment, described above, the Committee remains concerned at reports that those laws and policies are inconsistently implemented in practice. The Committee is particularly concerned about persistent allegations of torture and ill-treatment committed by law-enforcement officials, including the threat of sexual abuse and rape, in temporary detention isolation facilities (IVSs) and remand centres (SIZOs) under the jurisdiction of the Ministry of Internal Affairs and the National Security Committee for the purpose of extracting \u201cvoluntary confessions\u201d or information to be used as evidence in criminal proceedings (art.\u00a02)….\u201d<\/p>\n 2.\u00a0\u00a0The report of 16 December 2009 of the former United Nations Special Rapporteur on torture<\/em><\/p>\n 34.\u00a0\u00a0From 5 until 13 May 2009 the former United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Mr Manfred Nowak, undertook a visit to Kazakhstan. In his report of 16 December 2009, submitted to the Human Rights Council, Mr\u00a0Nowak observed, inter alia, the following:<\/p>\n \u201c…Whereas the physical conditions and food supply in the prison colonies seem to have been brought into line with international minimum standards in recent years, one of the key requirements of international human rights law \u2014 that penitentiary systems put rehabilitation and reintegration rather than the punishment of the individual offender at their core \u2014 has not been achieved; the restrictions on contact with the outside world provided by law contradict that very principle. Another major issue of concern is the fact that the hierarchy among prisoners appears to lead to discriminatory practices and, in some cases, to violence.<\/p>\n The same is true for pre-trial detention and custody facilities. The pre-trial facilities of the Ministry of the Interior, the Committee of National Security and the Ministry of Justice seem to have undergone improvements in terms of physical conditions and food supply; however the almost total denial of contacts with the outside world, often for prolonged periods, clearly contradicts the principle of the presumption of innocence and puts disproportional psychological pressure on suspects.<\/p>\n On the basis of discussions with public officials, judges, lawyers and representatives of civil society, interviews with victims of violence and with persons deprived of their liberty, the Special Rapporteur concludes that the use of torture and ill-treatment certainly goes beyond isolated instances. He received many credible allegations of beatings with hands and fists, plastic bottles filled with sand, police truncheons, and of kicking, asphyxiation with plastic bags and gas masks used to obtain confessions from suspects. In several cases, these allegations were supported by forensic medical evidence …\u201d<\/p>\n 3.\u00a0\u00a0The United Nations Human Rights Committee\u2019s thirty-fifth annual report<\/em><\/p>\n 35.\u00a0\u00a0The UN Human Rights Committee\u2019s thirty-fifth annual report adopted on 28 July 2011 (A\/66\/40 (Vol.I)), in so far as relevant to Kazakhstan, reads as follows:<\/p>\n \u201c…(8) While the Committee appreciates the State party\u2019s need to adopt measures to combat acts of terrorism, including the formulation of appropriate legislation to punish such acts, it regrets reports that law enforcement officials target vulnerable groups such as asylum-seekers and members of Islamic groups in their activities to combat terrorism (arts. 2 and 26).<\/p>\n The State party should adopt measures to ensure that the activities of its law enforcement officials in the fight against terrorism do not target individuals solely on the basis of their status or religious belief and manifestation. Furthermore, the State party should ensure that any measures to combat terrorism are compatible with the Covenant and international human rights law. In this regard, the State party should compile comprehensive data, to be included in its next periodic report, on the implementation of anti-terrorism legislation and how it affects the enjoyment of rights under the Covenant.<\/p>\n …<\/p>\n (14)\u00a0\u00a0While noting the adoption of an action plan for 2010\u20132012 on the implementation of recommendations of the Committee against Torture, the Committee expresses concern at increased reports of torture and the low rate of investigation of allegations of torture by the Special Procurators. The Committee is also concerned that the maximum penalty (10 years\u2019 imprisonment) for torture resulting in death under article 347-1 of the Criminal Code is too low (art. 7).<\/p>\n The State party should take appropriate measures to put an end to torture by, inter alia, strengthening the mandate of the Special Procurators to carry out independent investigations of alleged misconduct by law enforcement officials. In this connection, the State party should ensure that law enforcement personnel continue to receive training on the prevention of torture and ill-treatment by integrating the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol) of 1999 in all training programmes for law enforcement officials. The State party should thus ensure that allegations of torture and ill-treatment are effectively investigated, that perpetrators are prosecuted and punished with appropriate sanctions, and that the victims receive adequate reparation. In this regard, the State party is encouraged to review its Criminal Code to ensure that penalties on torture are commensurate with the nature and gravity of such crimes. …\u201d<\/p>\n B.\u00a0\u00a0Reports of the United States Department of State<\/strong><\/p>\n 36.\u00a0\u00a0In its 2011 Report on Human Rights Practices in Kazakhstan, the United States Department of State noted, inter alia, the following:<\/p>\n \u201cThe law prohibits torture; nevertheless, the police and prison officials regularly beat and abused detainees, often to obtain confessions …<\/p>\n Human rights activists asserted that the legal definition of torture was too vague and did not meet UN standards and that the penalties for the crime were too lenient. The PGO, the Presidential Human Rights Commission, and the human rights ombudsman acknowledged that some law enforcement officers used torture and other illegal methods of investigation. Human rights and international legal observers noted investigative and prosecutorial practices that overemphasized a defendant\u2019s confession of guilt over collecting other types of evidence in building a criminal case against a defendant. Courts generally ignored allegations by defendants that officials had obtained confessions by torture or duress.<\/p>\n At an October 2010 event hosted by the Office of the UN High Commissioner for Refugees (UNHCR) and several NGOs, Manfred Nowak, the UN special rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment, stated that according to his assessment, torture in Kazakhstan was not widespread, although a culture of impunity allowed police to use extreme methods, such as heavy beating and asphyxiation, to obtain confessions. Nowak stated that police rarely investigated complaints of torture.<\/p>\n …Local NGOs reported that the government acknowledged publicly that torture was a problem.\u201d<\/p>\n 37.\u00a0\u00a0In its 2012 Report on Human Rights Practices in Kazakhstan, the United States Department of State noted, inter alia, the following:<\/p>\n \u201c…The law prohibits torture; nevertheless, police and prison officials allegedly tortured and abused detainees, often in an effort to obtain or force confessions. For example, a representative from the Kazakhstan International Bureau for Human Rights reported seeing physical signs of torture, including scabbed skin, open wounds, bruises, and evidence of exposure to extreme cold on prisoners. The representative also asserted that authorities generally did not allow human rights observers to observe conditions in penal colonies. Members of the Public Monitoring Commission, a group comprised of NGO representatives, interviewed prisoners in a Kostanai penal colony. After the interview, authorities confiscated the group\u2019s notes and reportedly punished prisoners who had submitted complaints to the commission by beating them and placing them in punitive cells.<\/p>\n According to local NGOs, torture most often occurred in pretrial detention centers in order to obtain confessions.<\/p>\n Authorities charged two police officers from the Saragash District in South Kazakhstan with torture while trying to obtain confessions from three detainees accused of theft. The police officers allegedly placed plastic bags over the detainees\u2019 heads and subjected them to electric shocks.<\/p>\n …The Kazakhstani Commission on Human Rights, which advises the president on human rights issues, reported in 2011 that some law enforcement officers used torture and other illegal methods of investigation. The commission stated that there were no independent institutions to effectively investigate complaints of torture. …<\/p>\n The human rights ombudsman reviewed prisoner and detainee complaints and concluded that law enforcement officers used abuse or torture to gain confessions …\u201d<\/p>\n C.\u00a0\u00a0Reports of Amnesty International<\/strong><\/p>\n 38.\u00a0\u00a0The chapter on Kazakhstan of the Amnesty International report \u201cThe State of The World\u2019s Human Rights in 2010\u201d, released on 27 May 2010, in so far as relevant, reads as follows:<\/p>\n \u201c…Confessions extracted under torture continued to be admitted as evidence in trials. Criminal proceedings failed to comply with international standards of fair trial. Torture and other ill-treatment by members of the security forces remained widespread, in particular by officers of the National Security Service in the context of operations in the name of national security, and the fight against terrorism and corruption.<\/p>\n …Torture and other ill-treatment<\/p>\n In November the European Court of Human Rights ruled in the case of Kaboulov v.\u00a0Ukraine that the extradition to Kazakhstan of any criminal suspect, including Amir DamirovichKaboulov, would be in violation of Article 3 of the European Convention on Human Rights, as they would run a serious risk of being subjected to torture or inhuman or degrading treatment.<\/p>\n Despite amendments to the criminal and criminal procedural codes to clamp down on abusive practices, torture and other ill-treatment remained widespread. Confessions reportedly extracted under torture continued to be admitted as evidence in criminal trials, and individuals continued to be held in unregistered detention for longer than the three hours allowed for in national law. The lack of a clear definition of detention remained unaddressed despite recommendations of the UN Committee against Torture in November 2008.<\/p>\n Following his visit to Kazakhstan in May 2009, the UN Special Rapporteur on torture concluded that he \u201creceived many credible allegations of beatings with hands and fists, plastic bottles filled with sand and police truncheons and of kicking, asphyxiation through plastic bags and gas masks used to obtain confessions from suspects. In several cases, these allegations were supported by forensic medical evidence. …\u201d<\/p>\n \u201d<\/p>\n 39.\u00a0\u00a0The chapter on Kazakhstan in the Amnesty International report entitled \u201cThe State of The World\u2019s Human Rights in 2011\u201d, released on 13\u00a0May 2011, in so far as relevant, reads as follows:<\/p>\n \u201c…The authorities introduced a number of measures intended to prevent torture, including widening access to places of detention to independent public monitors and committing publicly to a policy of zero tolerance on torture.<\/p>\n Kazakhstan\u2019s human rights record was assessed under the UN Universal Periodic Review in February. In its presentation, the government delegation reiterated that the Kazakhstani authorities were committed to a policy of zero tolerance on torture, and that they \u2018would not rest until all vestiges of torture had been fully and totally eliminated\u2019.<\/p>\n In February, the government postponed the creation of an independent detention monitoring mechanism, the National Preventive Mechanism (NPM), for up to three years. However, in line with their obligations under the Optional Protocol to the UN Convention against Torture, the authorities continued to develop a legal framework for the NPM in close co-operation with domestic and international NGOs and intergovernmental organizations.<\/p>\n In April, the Prosecutor General\u2019s Office told Amnesty International that members of Independent Public Monitoring Commissions had been given unprecedented access to pre-trial detention centres of the National Security Service (NSS); four visits had been carried out in 2009 and eight in 2010.<\/p>\n Despite these measures, people in police custody reported that they were frequently subjected to torture and other ill-treatment, both before and after the formal registration of their detention at a police station. Law enforcement officials often failed to respect the existing law on detention, which requires that they register detainees within three hours of their arrest.<\/p>\n In October, the UN Special Rapporteur on torture criticized Kazakhstan for continuing to conceal the full extent of torture and other ill-treatment in its detention and prison system …\u201d<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT\u2019S REMOVAL TO KAZAKHSTAN<\/p>\n 40.\u00a0\u00a0The applicant complained under Articles 3 and 13 of the Convention that he had been unlawfully deported to Kazakhstan despite the Bak\u0131rk\u00f6y Assize Court\u2019s decision of 28 February 2012 and without any assessment of his claim that he ran the risk of being subjected to torture and other ill-treatment if returned to his country, even though such a risk existed at the relevant time.<\/p>\n Articles 3 and 13 of the Convention read as follows:<\/p>\n \u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n \u201cEveryone 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.\u201d<\/p>\n 41.\u00a0\u00a0The Government contested those arguments.<\/p>\n A.\u00a0\u00a0Article 3 of the Convention<\/strong><\/p>\n 1.\u00a0\u00a0Admissibility<\/em><\/p>\n 42.\u00a0\u00a0The Court notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 2.\u00a0\u00a0Merits<\/em><\/p>\n a.\u00a0\u00a0The parties\u2019 submissions<\/p>\n 43.\u00a0\u00a0The applicant submitted that his deportation to Kazakhstan had exposed him to a real risk of ill-treatment on account of the charges brought against him in that country. In this regard, he contended that the administrative authorities had rejected his asylum claim without making an assessment of his claim that he would face a real risk of ill-treatment if removed to Kazakhstan. The applicant further submitted that he had not been served with the administrative decision in response to his objection to the decision rejecting his asylum claim. The applicant contended that he had been deported to Kazakhstan despite the Bak\u0131rk\u00f6y Assize Court\u2019s judgment rejecting the extradition request. In his view, his deportation had been illegal under domestic law. The applicant submitted that he had not been served with the deportation order, and thus had not had the opportunity to challenge that order, before being deported to Kazakhstan.<\/p>\n 44.\u00a0\u00a0The Government submitted that the applicant had been banned from entering Turkish territory as he had been suspected of providing assistance to persons involved in international terrorism. The Government further submitted that the police had been aware of the fact that the applicant was being sought by the Kazakhstan authorities and would be prosecuted in Kazakhstan if returned to that country after the Turkish authorities had assessed his asylum claim. The Government contended that the applicant had not been able to substantiate his claims regarding the risk of ill-treatment in the event of his deportation to Kazakhstan.<\/p>\n b.\u00a0\u00a0The Court\u2019s assessment<\/p>\n 45.\u00a0\u00a0It is the Court\u2019s 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 (seeSaadi v.\u00a0Italy [GC], no. 37201\/06, \u00a7\u00a7 124-125, ECHR 2008; F.G. v.\u00a0Sweden [GC], no.\u00a043611\/11, \u00a7 111, ECHR 2016; and J.K.and Others v. Sweden [GC], no.\u00a059166\/12, \u00a7 79, ECHR 2016). Besides, in view of the fact that Article\u00a03 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\u00a03 must be subjected to a close review and an independent and rigorous examination (see Babajanov v. Turkey, no. 49867\/08, \u00a7 42, 10\u00a0May 2016, and the cases cited therein).<\/p>\n 46.\u00a0\u00a0The Court considers that in view of the circumstances of the case and the applicant\u2019s complaints as formulated above, the central question to be answered in the present case is not whether the applicant ran a real risk of ill-treatment in Kazakhstan as such but whether the Turkish authorities carried out an adequate assessment of the applicant\u2019s claim that he would run a real risk of ill-treatment in case of deportation to Kazakhstan before he was deported from Turkey to Kazakhstan on 12 March 2012 (see Babajanov, cited above, \u00a7 43). Therefore, the Court\u2019s examination will be limited to ascertaining whether the State authorities fulfilled their procedural obligations under Article 3 of the Convention (see F.G. cited above, \u00a7 117).<\/p>\n 47.\u00a0\u00a0The Court observes that the applicant consistently claimed before the domestic authorities that he would be exposed to a real risk of death or ill\u2011treatment if removed to Kazakhstan. He provided the domestic authorities with information about his personal situation and the reasons for his fear of ill-treatment and death. Besides, the document containing the Kazakhstan authorities\u2019 extradition request demonstrated that the applicant was of interest to the Kazakhstan authorities as a suspected terrorist, although he never admitted to any affiliation with any terrorist organisation. The Court further observes that as can be seen from the information and material publicly available to the administrative authorities at the relevant time, various parties had independently made allegations of ill-treatmentby the law-enforcement officials in Kazakhstan; the instances of ill-treatment had not occurred in \u201cisolated or infrequent instances\u201d; and law-enforcement officials \u201ctargeted members of Islamic groups in their efforts to combat terrorism\u201d in that country (see paragraphs 31-39 above).\u00a0\u00a0Hence, the Court finds that the domestic authorities were aware or ought to have been aware of facts indicating that the applicant could be exposed to a risk of ill-treatment upon his returning to Kazakhstan. Therefore, they were under an obligation to address the applicant\u2019s arguments and to carefully assess the risk of ill-treatment if the applicant were to be removed to Kazakhstan, in order to dispel any doubts about possible ill\u2011treatment (see F.G.,cited above, \u00a7\u00a0127, and Babajanov, cited above, \u00a7 45).<\/p>\n 48.\u00a0\u00a0Against this background, the Court observes that the Government were explicitly requested to make submissions as to whether the domestic authorities had assessed the presence of a real risk of ill-treatment prior to the applicant\u2019s removal to Kazakhstan; whether a deportation order had been issued for his removal; and whether the applicant had had access to a lawyer with a view to challenging the deportation decision before the domestic courts. They were also asked to provide copies of the documents relevant to the applicant\u2019s application for asylum, including the assessment made by the domestic authorities, the deportation order and the formal notification of his removal.<\/p>\n 49.\u00a0\u00a0The Government submitted only a document containing the applicant\u2019s submissions to the domestic authorities, the police report concerning the interview held with the applicant, a copy of the notification made to the applicant about the rejection of his asylum claim and copies of other notification documents. They failed to submit the documents containing the assessment made by the authorities regarding the applicant\u2019s asylum claim and his objection of 29 November 2011. Nor was the applicant notified of the decision dismissing his objection. Besides, there are no documents in the case file to show that the authorities issued a formal deportation order and that the applicant was notified of that order. The Government also failed to respond to the Court\u2019s question regarding the assessment of the presence of a real risk of ill-treatment at the domestic level. The Government only submitted that the authorities had been aware of the terrorism-related charges against the applicant; that the applicant\u2019s asylum claim had been assessed; and that the applicant had not been able to substantiate his allegations of possible ill-treatment.<\/p>\n 50.\u00a0\u00a0All of the above leads the Court to conclude that the applicant, an asylum seeker, was deported to Kazakhstan, 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. 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 Babajanov, cited above, \u00a7 48).<\/p>\n 51.\u00a0\u00a0Lastly, the applicant was deported to Kazakhstan by the police despite the existence of a judicial decision \u2013 that is to say the Bak\u0131rk\u00f6y Assize Court\u2019s judgment refusing the Kazakhstan authorities\u2019 extradition request on the grounds that the applicant had been charged in that country with one of the offences, precluding extradition, listed in Article 18 \u00a7 1 (b) of the Criminal Code, which was still in force at the material time (that is to say, a speech offence, a political offence or a military offence \u2013 see paragraphs 20 and 30 above). The Court considers that as such, the applicant\u2019s removal to Kazakhstan constituted circumvention of the domestic extradition procedure (see, mutatis mutandis, SavriddinDzhurayev v.\u00a0Russia, no. 71386\/10, \u00a7 204, ECHR 2013 (extracts)).<\/p>\n 52.\u00a0\u00a0In sum, in the absence of an examination by the national authorities of the applicant\u2019s claim that he would face a real risk of treatment contrary to Article 3 if removed to Kazakhstan and of a legal procedure providing safeguards against unlawful deportation, the Court considers that the applicant\u2019s deportation to Kazakhstan on 12 March 2012 amounted to a violation of Article 3 of the Convention (ibid, \u00a7 49; also compare Kaboulov v.\u00a0Ukraine, no. 41015\/04, \u00a7\u00a7 110-115, 19 November 2009;Baysakov and Others v. Ukraine, no. 54131\/08, \u00a7\u00a7 46-52, 18 February 2010; Dzhaksybergenov v. Ukraine. no. 12343\/10, \u00a7\u00a7 32-38, 10 February 2011; Sharipov v. Russia, no. 18414\/10, \u00a7\u00a7 31-38, 11 October 2011; Yefimova v.\u00a0Russia, no. 39786\/09, \u00a7\u00a7 197-213, 19 February 2013; andOshlakov v.\u00a0Russia, no. 56662\/09, \u00a7\u00a7 78-92, 3 April 2014).<\/p>\n B.\u00a0\u00a0Article 13 of the Convention<\/strong><\/p>\n 53.\u00a0\u00a0Having regard to the reasoning which has led it to conclude that 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 standpoint of Article 13 of the Convention. It therefore deems it unnecessary to rule separately on either the admissibility or the merits of the applicant\u2019s complaints under this head (Babajanov, cited above, \u00a7 52).<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION<\/p>\n 54.\u00a0\u00a0Relying on Article 5 \u00a7 1 of the Convention, the applicant complained that he had been unlawfully detained at the Kumkap\u0131 Foreigners\u2019 Removal Centre. He further complained under Article 5 \u00a7 2 that he had not been duly informed of the reasons for being deprived of his liberty at the removal centre. Under Article 5 \u00a7 4 and Article 13, the applicant submitted that he had not been able to have his detention at the removal centre reviewed by a court. Lastly, he maintained under Article 5 \u00a7 5 of the Convention that he had had no right to compensation under domestic law in respect of the above-mentioned complaints.<\/p>\n 55.\u00a0\u00a0The Government contested those arguments.<\/p>\n 56.\u00a0\u00a0The Court considers at the outset that the complaint under Article\u00a013 falls to be examined under Article 5 \u00a7 4 of the Convention alone, which provides a lexspecialis in relation to the more general requirements of Article\u00a013 (see Yarashonen v. Turkey, no. 72710\/11, \u00a7 34, 24 June 2014).<\/p>\n Article 5 in so far as relevant reads:<\/p>\n \u201c1.\u00a0\u00a0Everyone 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:<\/p>\n …<\/p>\n (f)\u00a0\u00a0the 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.<\/p>\n 2.\u00a0\u00a0Everyone 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.<\/p>\n …<\/p>\n 4.\u00a0\u00a0Everyone 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.<\/p>\n 5.\u00a0\u00a0Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 57.\u00a0\u00a0Referring to the document dated 29 February 2012 (see paragraph 21 above) the Government submitted that the applicant had been informed that he was being held pending the outcome of the deportation procedure conducted in his respect.<\/p>\n 58.\u00a0\u00a0The applicant claimed that he had not been informed of the reasons for his detention, as required by Article 5 \u00a7 2 of the Convention. He submitted that he did not have a sufficient knowledge of the Turkish language.<\/p>\n 59.\u00a0\u00a0On the basis of the document dated 29 February 2012 submitted by the Government, the Court observes that the applicant was notified in Turkish of the reason for his detention at the Kumkap\u0131 Foreigners\u2019 Removal Centre. Given the view of the interpreter who attended the applicant\u2019s interview with the police authorities and the Bak\u0131rk\u00f6y Assize Court that the applicant had sufficient knowledge of Turkish (see paragraphs 8 and 20 above) and given that the applicant was able to raise his claims before both the police and the judicial authorities using the Turkish language, the Court does not see any reason to conclude that the applicant did not speak Turkish.<\/p>\n 60.\u00a0\u00a0Accordingly, the applicant\u2019s complaint under Article 5 \u00a7 2 of the Convention is manifestly ill-founded and must be rejected, in accordance with Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n 61.\u00a0\u00a0The Court notes that the applicant\u2019s remaining complaints under Article\u00a05 \u00a7\u00a7 1, 4 and 5 of the Convention are not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0Alleged violation of Article 5 \u00a7 1 of the Convention<\/em><\/p>\n 62.\u00a0\u00a0The Government did not make any submissions under this head.<\/p>\n 63.\u00a0\u00a0The applicant argued that his detention had had no legal basis in domestic law.<\/p>\n 64.\u00a0\u00a0The Court has already examined a similar grievance in the case of Abdolkhani and Karimnia v. Turkey (no. 30471\/08,\u00a7\u00a7\u00a0125\u2011135, 22\u00a0September 2009) in which it 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\u2019 detention was not \u201clawful\u201d for the purposes of Article 5 of the Convention. There are no particular circumstances which would require the Court to depart from its findings in that judgment.<\/p>\n 65.\u00a0\u00a0There has accordingly been a violation of Article 5 \u00a7 1 of the Convention in the instant case.<\/p>\n 2.\u00a0\u00a0Alleged violation of Article 5 \u00a7\u00a7 4 and 5 of the Convention<\/em><\/p>\n 66.\u00a0\u00a0The Government submitted that the applicant could have applied to the administrative courts under Article 125 of the Constitution in order to challenge the lawfulness of his detention and seek compensation. They also submitted that the applicant could have sought a stay of execution in respect of his detention under section 27 of the Administrative Procedure Act (Law\u00a0no.\u00a02577).<\/p>\n 67.\u00a0\u00a0The applicant submitted that there had been no effective remedy via which to challenge the lawfulness of his detention at the Kumkap\u0131 Foreigners\u2019 Removal Centre and that he had had no right to compensation under domestic law in respect of his complaints under the other paragraphs of Article 5 of the Convention.<\/p>\n 68.\u00a0\u00a0The Court notes that it has found a violation of Article 5 \u00a7\u00a7 4 and\u00a05 of the Convention in the past in a number of similar cases, where it concluded that the Turkish legal system did not provide persons in the applicant\u2019s position with a remedy whereby they could obtain judicial review of the lawfulness of their detention, within the meaning of Article\u00a05 \u00a7\u00a04, and receive compensation for their unlawful detention, as required under Article 5 \u00a7 5 of the Convention (see Tehrani and Others v.\u00a0Turkey, nos.\u00a032940\/08, 41626\/08 and 43616\/08, \u00a7 79, 13 April 2010;Abdolkhani and Karimnia, cited above, \u00a7 142; Dbouba v. Turkey, no.\u00a015916\/09, \u00a7\u00a7\u00a053\u201154, 13 July 2010; Yarashonen, cited above, \u00a7\u00a048; Musaev v. Turkey, no.\u00a072754\/11, \u00a7\u00a039, 21 October 2014; and Alimov v. Turkey, no. 14344\/13, \u00a7\u00a050, 6 September 2016). In the absence of any examples submitted by the Government in which the administrative courts had speedily examined requests and ordered the release of an asylum seeker on the grounds of the unlawfulness of his or her detention and had awarded him or her compensation, the Court sees no reason to depart from its findings in the aforementioned judgments.<\/p>\n 69.\u00a0\u00a0There has accordingly been a violation of Article 5 \u00a7\u00a7 4 and 5 of the Convention.<\/p>\n III.\u00a0\u00a0ALLEGED VIOLATIONS OF ARTICLES 3 AND 13 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION AT THE KUMKAPI FOREIGNERS\u2019 REMOVAL CENTRE<\/p>\n 70.\u00a0\u00a0The applicant complained under Articles 3 and 13 of the Convention about the conditions of detention at the Kumkap\u0131 Foreigners\u2019 Removal Centre between 28 February and 12 March 2012 and of the absence of any effective domestic remedy whereby he could raise his allegations concerning the conditions of his detention.<\/p>\n Articles 3 and 13 of the Convention read as follows:<\/p>\n \u201cNo one shall be subjected to torture or to inhuman or degrading treatment or punishment.\u201d<\/p>\n \u201cEveryone 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.\u201d<\/p>\n 71.\u00a0\u00a0The Government contested those arguments.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 72.\u00a0\u00a0The Government submitted that this part of the application should be rejected for failure to exhaust domestic remedies within the meaning of Article\u00a035 \u00a7 1 of the Convention. They maintained in this connection that the applicant should have applied to the administrative or judicial authorities and sought compensation under Articles 36 and 125 of the Constitution in relation to his grievances.<\/p>\n 73.\u00a0\u00a0The applicant contested the Government\u2019s argument, stating that no adequate remedy had existed in relation to his complaints, which also explained the Government\u2019s failure to submit any examples demonstrating how the legal provisions in question would have provided effective redress in practice.<\/p>\n 74.\u00a0\u00a0The Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the applicant\u2019s complaint that he did not have an effective remedy at his disposal by which to complain of inhuman and degrading conditions during his detention. The Court therefore finds it necessary to join the Government\u2019s objection to the merits of the complaint under Article 13 of the Convention (see Yarashonen, cited above, \u00a7\u00a054; Musaev, cited above, \u00a7 45; and Alimov,cited above, \u00a7 56).<\/p>\n 75.\u00a0\u00a0The Court further finds that the applicant\u2019s complaints under Articles\u00a03 and 13 of the Convention concerning the conditions of his detention at the Kumkap\u0131 Foreigners\u2019 Removal Centre and the lack of effective remedies in that respect are not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. They are not inadmissible on any other grounds. The Court therefore declares these complaints admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0Article 13 of the Convention<\/em><\/p>\n 76.\u00a0\u00a0As indicated in paragraph 72 above, the Government submitted that the applicant had had effective remedies in respect of his grievances concerning the conditions of his detention.<\/p>\n 77.\u00a0\u00a0The applicant reiterated his complaints and arguments, as set out in paragraph 73 above.<\/p>\n 78.\u00a0\u00a0The Court notes that it has already examined and rejected similar submissions by the respondent Government in comparable cases and found a violation of Article 13 of the Convention (seeYarashonen, cited above, \u00a7\u00a7\u00a056\u201166; Musaev, cited above, \u00a7\u00a7 53-55; T. and A.v. Turkey, no.\u00a047146\/11, \u00a7\u00a086, 21 October 2014; and Alimov,cited above, \u00a7\u00a7 63-67). In the absence of any examples submitted by the Government of instances where recourse to an administrative or judicial authority led to the improvement of detention conditions and\/or to an award of compensation for the anguish suffered on account of adverse material conditions, the Court finds no reason to depart from its findings in the above\u2011mentioned cases.<\/p>\n 79.\u00a0\u00a0The Court therefore rejects the Government\u2019s objection concerning the non-exhaustion of domestic remedies and concludes that there has been a violation of Article 13 of the Convention, in conjunction with Article 3, on account of the absence of an effective remedy to complain about the inadequate conditions of the applicant\u2019s detention at the Kumkap\u0131 Foreigners\u2019 Removal Centre.<\/p>\n 2.\u00a0\u00a0Article 3 of the Convention<\/em><\/p>\n 80.\u00a0\u00a0The Government submitted that the conditions of the applicant\u2019s detention at the Kumkap\u0131 Foreigners\u2019 Removal Centre had complied with the requirements of Article 3 of the Convention.<\/p>\n 81.\u00a0\u00a0The applicant maintained his allegations.<\/p>\n 82.\u00a0\u00a0The Court notes that in their submissions the Government provided information regarding the conditions of detention at the Kumkap\u0131 Foreigners\u2019 Removal Centre, in particular regarding the capacity of the rooms and the number of occupants held in them between 28 February and 12 March 2012. However, they did not submit any document in support of their submissions even though they were explicitly requested to do so when notice of the application was given.<\/p>\n 83.\u00a0\u00a0The Court further notes that it has already found a violation of Article\u00a03 of the Convention on account of the material conditions of detention at the Kumkap\u0131 Foreigners\u2019 Removal Centre \u2012 in particular because of the clear evidence of overcrowding and the lack of access to outdoor exercise \u2012 in a number of cases brought before it by applicants who had been detained there in 2010, 2011 and 2012 (see Yarashonen, cited above, \u00a7 81; Musaev, cited above, \u00a7\u00a061; and Alimov cited above, \u00a7 85). The Court notes that it paid special attention in the aforementioned cases to the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (\u201cthe CPT\u201d), members of the Grand National Assembly of Turkey, and the UN Special Rapporteur on the human rights of migrants regarding the problem of overcrowding and the lack of outdoor exercise at the centre following visits there in June 2009, May 2012 and June 2012, respectively (see Yarashonen, cited above, \u00a7\u00a7\u00a025, 28 and 30). The Court observes that the Government have not presented any evidence capable of justifying a departure from those conclusions. The Court is therefore led to conclude that the conditions of the applicant\u2019s detention at the Kumkap\u0131 Foreigners\u2019 Removal Centre \u2013 coupled with the possible anxiety caused by uncertainty as to when the detention would end \u2013 are sufficient to conclude that the conditions of his detention caused the applicant distress that exceeded the unavoidable level of suffering inherent in detention and attained the threshold of degrading treatment proscribed by Article\u00a03 (ibid., \u00a7 80).<\/p>\n 84.\u00a0\u00a0There has therefore been a violation of Article 3 of the Convention on account of the material conditions in which the applicant was detained at the Kumkap\u0131 Foreigners\u2019 Removal Centre.<\/p>\n IV.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 85.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 86.\u00a0\u00a0The applicant claimed 40,000 euros (EUR) in respect of non-pecuniary damage.<\/p>\n 87.\u00a0\u00a0The Government contested that claim as excessive.<\/p>\n 88.\u00a0\u00a0Ruling on an equitable basis, the Court awards the applicant EUR\u00a06,500 in respect of non-pecuniary damage.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 89.\u00a0\u00a0The applicant also claimed EUR 4,661 in respect oflawyer\u2019s fees and EUR 345 for other costs and expenses incurred before the Court, such as travel expenses, stationery, photocopying, translation and postage. In that connection, he submitted a time-sheet showing that his legal representatives had carried out thirty-nine hours and thirty minutes\u2019 legal work, a legal services agreement concluded with his representatives, and invoices for the remaining costs and expenses.<\/p>\n 90.\u00a0\u00a0The Government contested those claims, deeming them unsubstantiated.<\/p>\n 91.\u00a0\u00a0According to the Court\u2019s 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 3,345 covering costs for the proceedings before the Court.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 92.\u00a0\u00a0The 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Joins the Government\u2019s objection as to the non-exhaustion of domestic remedies in relation to the conditions of detention at the Kumkap\u0131 Foreigners\u2019 Removal Centre to the merits of the complaint under Article 13 of the Convention and dismisses it;<\/p>\n 2.\u00a0\u00a0Declares the complaint under Article 3 concerning the applicant\u2019s deportation to Kazakhstan on 12 March 2012, the complaints under Article\u00a05 \u00a7\u00a7 1, 4 and 5 of the Convention concerning the alleged unlawfulness of the applicant\u2019s detention at the Kumkap\u0131 Foreigners\u2019 Removal Centre, the alleged lack of domestic remedies via which to challenge the lawfulness of his detention at the removal centre and obtain compensation, and the complaints under Articles 3 and 13 of the Convention concerning the conditions of the applicant\u2019s detention at the Kumkap\u0131 Foreigners\u2019 Removal Centre between 28 February and 12\u00a0March 2012 admissible;<\/p>\n 3.\u00a0\u00a0Holds that there is no need to examine the admissibility or the merits of the complaint under Article 13 of the Convention concerning the applicant\u2019s deportation to Kazakhstan on 12 March 2012;<\/p>\n 4.\u00a0\u00a0Declares the remainder of the application inadmissible;<\/p>\n 5.\u00a0\u00a0Holds that there has been a violation of Article 3 of the Convention on account of the applicant\u2019s deportation to Kazakhstan on 12 March 2012;<\/p>\n 6.\u00a0\u00a0Holds that there has been a violation of Article 5 \u00a7 1 of the Convention;<\/p>\n 7.\u00a0\u00a0Holds that there has been a violation of Article 5 \u00a7\u00a7 4 and 5 of the Convention;<\/p>\n 8.\u00a0\u00a0Holds that there has been a violation of Article 3 of the Convention on account of the conditions of the applicant\u2019s detention at the Kumkap\u0131 Foreigners\u2019 Removal Centre;<\/p>\n 9.\u00a0\u00a0Holds that there has been a violation of Article 13 of the Convention in conjunction with Article 3 on account of the absence of effective remedies to complain about the conditions of detention at the Kumkap\u0131 Foreigners\u2019 Removal Centre;<\/p>\n 10.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final, in accordance with Article\u00a044\u00a0\u00a7\u00a02 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:<\/p>\n (i)\u00a0\u00a0EUR 6,500 (six thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 3,345 (three thousand three hundred and forty-five euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n (b)\u00a0\u00a0that 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;<\/p>\n 11.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 5 June 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Stanley Naismith\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Robert Spano
\nPaul Lemmens,
\nLedi Bianku,
\nI\u015f\u0131l Karaka\u015f,
\nValeriuGri\u0163co,
\nJon Fridrik Kj\u00f8lbro,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m, judges,
\nand Stanley Naismith, Section Registrar,<\/p>\n
\nRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n