Zitieren als:
EGMR, Urteil vom 19.01.2010 - 21896/08, Z.N.S. v. Turkey (engl.) - M16951

1. Verfolgungsgefahr einer zum Christentum konvertierten Iranerin (drohende Verletzung von Art. 3 EMRK im Falle der Abschiebung aus der Türkei in den Iran).

2. Bei der türkischen "Aufnahmeeinrichtung Kirklareli" handelt es sich um eine Haftanstalt; die Haft dort ist mangels klarer rechtlicher Grundlagen (Haftgründe und -dauer) rechtswidrig und verstößt gegen Art. 5 EMRK (siehe dazu EGMR, Urt. v. 22.9.09, Abdolkhani und Karimnia, M16564).

Schlagwörter: Türkei, Iran, Konvertiten, religiöse Verfolgung, Abschiebungshaft
Normen: EMRK Art. 3, EMRK Art. 5 Abs. 1, EMRK Art. 5 Abs. 4



38. The applicant complained under Articles 2 and 3 of the Convention that her removal to Iran would expose her to a real risk of death or ill-treatment.

39. The Court finds it is more appropriate to examine the applicant's complaint from the standpoint of Article 3 of the Convention alone (see Abdolkhani and Karimnia, cited above, § 62; N.A. v. the United Kingdom, no. 25904/07, § 95, 17 July 2008; and Said v. the Netherlands, no. 2345/02, § 37, ECHR 2005-VI).

A. Admissibility

40. The Government submitted that no deportation order had been issued in respect of the applicant. They further noted that the applicant had infringed visa and passport requirements and that, according to the national legislation, she would be deported from Turkey. That did not necessarily mean that she would be sent to Iran. She could go to a third country so long as she had a visa. The Government further maintained that the applicant had failed to exhaust the domestic remedies available to her, within the meaning of Article 35 § 1 of the Convention. They contended that the applicant had failed to make a temporary asylum request to the relevant authorities. They noted that the applicant could have applied to the administrative courts if the authorities had refused such a request. In support of their submissions, the Government provided a number of judgments of the administrative courts in which those courts had annulled deportation decisions.

41. The applicant submitted that, according to the official documents, she had been placed in the Foreigners' Department of the Istanbul police headquarters on 3 May 2008 with a view to her deportation. She further contended that she had told the police officer who questioned her on 16 May 2008 that she was against the present Iranian government and she did not wish to return to her home country. She did not however inform the police officer that she had been involved in anti-regime activities in Iran, for fear that she might be deported in the context of an agreement between Turkey and Iran on the "exchange of terrorists".

42. The Court observes that, according to the documents dated 9 May 2008 and 10 June 2008, the applicant was placed in the Istanbul police headquarters with a view to her deportation. Therefore it cannot accept the Government's argument that no deportation decision had been taken in her case. The Court further observes that the applicant had explicitly stated her position vis-à-vis the Iranian Government in her statement of 16 May 2008. However, the Ministry of the Interior informed the applicant's representative that the procedure regarding the applicant had been suspended pending the outcome of the proceedings before the Court. What is more, the respondent Government became aware of the applicant's refugee status under the UNHCR's mandate on the ground of her religion when the UNHCR refugee certificate submitted to the Court by the applicant was sent to them on 27 March 2009. In these circumstances and in the absence of any response by the national authorities regarding the applicant's allegations, the Court is of the view that the applicant did everything that could be expected of her.

43. As to the Government's argument that the applicant could have applied to the administrative courts, the Court reiterates that under Turkish law seeking the annulment of a deportation decision does not have automatic suspensive effect and, therefore, the applicant was not required to apply to the administrative courts in order to exhaust such domestic remedies, within the meaning of Article 35 § 1 of the Convention (see Abdolkhani and Karimnia, cited above, § 59). The Court accordingly rejects the Government's objections.

44. The Court observes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

45. The Government maintained that the applicant did not have a well-founded fear of persecution as she had not been subjected to any ill-treatment in Iran. They further noted that neither the applicant, nor her representative on her behalf, had claimed asylum with the national authorities.

46. The applicant alleged that she had been deported once to Iran without having been given the opportunity to object to her removal. She further contended that she feared being deported again and that that was reason why she had not mentioned her political activities in Iran to the police. The applicant maintained that, if removed to Iran, she would be exposed to a clear risk of death or ill-treatment, given that she had been involved in anti-regime activities in Iran prior to her arrival in Turkey and that she had become a Christian, a fact known by the Iranian authorities. In this connection, she stressed that she had been recognised as a refugee by the UNHCR.

47. The Court observes at the outset that the applicant was arrested on 3 May 2008 and that, when she made statements to the police on 16 May 2008, she had mentioned that she did not wish to return to Iran and that she had come to Turkey in order to apply to the UNHCR. However, according to the documents dated 9 May and 10 June 2008, the national authorities planned her deportation without an examination of her statements. Furthermore, her case before the Turkish authorities was suspended pending the proceedings before the Court (see paragraphs 21 and 42 above). In these circumstances the Court is not persuaded that the national authorities conducted any meaningful assessment of the applicant's claim. It fell to the branch office of the UNHCR to interview the applicant when she was being held in the K?rklareli Foreigners' Admission and Accommodation Centre about the background to her asylum request and to evaluate the risk to which she would be exposed on the ground of her religion.

48. The Court for its part must give due weight to the UNHCR's conclusion on the applicant's claim regarding the risk which she would face if she were to be removed to Iran (see Jabari v. Turkey, no. 40035/98, § 41, ECHR 2000-VIII; N.A. v. the United Kingdom, cited above, § 122; and Abdolkhani and Karimnia, cited above, § 82). The Court observes in this connection that, when the UNHCR interviewed the applicant, it had the opportunity to test the credibility of her fears and the veracity of her account of the circumstances in her home country. Following this interview, it found that the applicant risked being subjected to persecution in her country of origin.

49. In the light of the UNHCR's assessment, the Court finds that there are substantial grounds for accepting that the applicant risks a violation of her right under Article 3, on account of her religion, if returned to Iran.

50. Consequently, the Court concludes that there would be a violation of Article 3 of the Convention if the applicant were to be removed to Iran. [...]

1. Existence of a deprivation of liberty and compliance with Article 5 § 1

54. The Government maintained that the applicant was not detained but accommodated in the K?rklareli Foreigners' Admission and Accommodation Centre. The reason for the applicant's placement in this centre, which could not be defined as detention or custody, was the authorities' need for the surveillance of aliens pending deportation proceedings. The Government contended that this practice was based on section 23 of Law no. 5683 and section 4 of Law no. 5682.

55. The applicant submitted that she was detained and that her detention did not have a sufficient legal basis in domestic law. Nor had it been ordered by a court.

56. The Court reiterates that it has already examined the same grievance in the case of Abdolkhani and Karimnia (cited above, §§ 125-135). It found that the placement of the applicants in the K?rklareli Foreigners' Admission and Accommodation Centre in that case constituted a deprivation of liberty and concluded that, in the absence of clear legal provisions establishing the procedure for ordering and extending detention with a view to deportation and setting time-limits for such detention, the deprivation of liberty to which the applicants were subjected was not "lawful" for the purposes of Article 5 of the Convention.

57. The Court has examined the present case and finds no particular circumstances which would require it to depart from its findings in the afore-mentioned Abdolkhani and Karimnia judgment. There has therefore been a violation of Article 5 § 1 of the Convention.

2. Compliance with Article 5 § 4

58. The Government submitted that an application to administrative courts for the annulment of the decisions to place individuals in foreigners' admission and accommodation centres was an effective remedy within the meaning of Article 5 § 4 of the Convention.

59. The applicant submitted, at first, that she could not apply to administrative courts as she was unable to appoint an advocate in the absence of any valid identity documents. In her submissions dated 16 April 2009 she contended that, following her recognition as a refugee under the UNHCR's mandate, she could now empower an advocate to take proceedings on behalf of her with a notarised power of attorney. Accordingly, her advocate applied to Ankara Administrative Court and requested her release. In her submissions made in May and June 2009, the applicant maintained that the proceedings in question were not sufficiently speedy.

60. The Court reiterates that the purpose of Article 5 § 4 is to guarantee to persons who are arrested and detained the right to the judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12). A remedy must be made available during a person's detention to allow that person to obtain a speedy judicial review of its lawfulness. That review should be capable of leading, where appropriate, to release. The existence of the remedy required by Article 5 § 4 must be sufficiently certain, not only in theory but also in practice, failing which it will lack the accessibility and effectiveness required for the purposes of that provision (see, mutatis mutandis, Stoichkov v. Bulgaria, no. 9808/02, § 66 in fine, 24 March 2005; and Vachev v. Bulgaria, no. 42987/98, § 71, ECHR 2004-VIII).

61. The Court first observes that the applicant's representative lodged a case with the Ankara Administrative Court on 14 April 2009, requesting the annulment of the decision of the Ministry not to release his client and to order a stay of execution of that decision pending the proceedings. The request was refused and the subsequent appeal was dismissed on 24 June 2009. Moreover, according to the information in the case file, the proceedings are still pending before that court. The initial review by the administrative courts thus lasted two months and ten days.

62. The Court refers to its findings under Article 5 § 1 of the Convention about the lack of legal provisions governing the procedure for detention in Turkey pending deportation. The proceedings in issue did not raise a complex issue. The Court considers that the Ankara Administrative Court was in an even better position than the Court to observe the lack of a sufficient legal basis for the applicant's detention. The Court therefore finds that the judicial review in the present case cannot be regarded as a "speedy" reply to the applicant's petition (see Khudyakova v. Russia, no. 13476/04, § 99, 8 January 2009; and Kadem v. Malta, no. 55263/00, §§ 43-45, 9 January 2003, where the Court held that periods of 54 and 17 days, respectively, for examining an appeal against detention pending extradition proceedings had been too long).

63. Accordingly, the Court concludes that Turkish legal system did not provide the applicant with a remedy whereby she could obtain speedy judicial review of the lawfulness of her detention, within the meaning of Article 5 § 4 of the Convention (see S.D. v. Greece, no. 53541/07, § 76, 11 June 2009; and Abdolkhani and Karimnia, cited above, § 142). There has therefore been a violation of Article 5 § 4 of the Convention. [...]


1. Declares admissible the complaints under Article 3 of the Convention (concerning the applicant's possible deportation to Iran and the material conditions of her detention) and the complaints under Article 5 of the Convention;

2. Declares the remainder of the application inadmissible;

3. Holds that the applicant's deportation to Iran would be in violation of Article 3 of the Convention;

4. Holds that there has been a violation of Article 5 §§ 1 and 4 of the Convention;

5. Holds that there has been no violation of Article 3 of the Convention on account of the material conditions of detention in the K?rklareli Foreigners' Admission and Accommodation Centre;

6. 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, EUR 20,000 (twenty thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 7. Dismisses the remainder of the applicant's claim for just satisfaction. [...]