CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 juin 2014

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margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .s28BDCFEA { width:6.53pt; display:inline-block } .s3B18E3A1 { width:198.76pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 }       SECOND SECTION               CASE OF YARASHONEN v. TURKEY   (Application no. 72710/11)                 JUDGMENT   STRASBOURG   24 June 2014       FINAL   24/09/2014   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Yarashonen v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Guido Raimondi, President,   Işıl Karakaş,   András Sajó,   Nebojša Vučinić,   Egidijus Kūris,   Robert Spano,   Jon Fridrik Kjølbro, judges, and Abel Campos, Deputy Section Registrar, Having deliberated in private on 3 June 2014, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 72710/11) 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 a Russian national of Chechen origin, Mr   Zalim   Yarashonen (“the applicant”), on 28 October 2011. 2.     The applicant was represented by Ms S. N. Yılmaz and Mr   A.   Yılmaz, lawyers practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent. 3.     On 18 March 2013 the application was communicated to the Government. 4.     The applicant and the Government each filed observations on the admissibility and merits of the application. The Russian Government, who had been informed of their right to intervene under Article 36 of the Convention, did not make use of this right. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A.     The applicant’s arrest and detention 5.     The applicant was born in 1984 and lives in Istanbul. 6.     On an unspecified date in 2000 the applicant fled Russia and travelled to Turkey following the alleged killing of his father and brother by Russian security forces. 7.     On 25 October 2010 he was arrested at Atatürk International Airport in Istanbul, following an identity check, on the ground that he had entered Turkey illegally and possessed no passport. He was placed in custody at the police station in the airport. 8.     On 26 October 2010 the applicant was questioned by a police officer at Atatürk International Airport police station. He stated that he had entered Turkey in 2000 through the Sarp border crossing on the Georgian border using his birth certificate and that he had never possessed a passport. 9.     On 1 November 2010 the applicant was transferred to the Kumkapı Removal Centre. 10.     On 17 February 2011 the applicant met with his lawyer, Mr   A.   Yılmaz, who also represented him during the proceedings before the Court. There is no information in the case file regarding the scope of their meeting, nor is it clear whether this was the applicant’s first meeting with his lawyer. 11.     On 13 April 2011 the applicant met with another lawyer, Mr   F.   Amca. The lawyer indicated in his meeting notes that the applicant had not yet filed an asylum request at that point. He further noted that the applicant had caught flu three to four months before, but had not sought any treatment and was still suffering from it. It appears from the lawyer’s notes that at the end of the meeting the lawyer advised the applicant to speak to the officers in charge at the removal centre about his asylum request and his health problems. 12.     On 18 April 2011 the applicant applied for asylum. 13.     On 21 April 2011 the applicant’s lawyer, Mr A. Yılmaz, sent a letter to the General Security Directorate of the Ministry of the Interior by standard post complaining that the applicant was being detained unlawfully and requesting his release. In the letter he also brought the applicant’s health issues to the authorities’ attention and requested medical assistance. According to the information provided by the parties, the letter reached the Ministry of the Interior on 2 May 2011. 14.     In the meantime, on 29 April 2011, the applicant was released from detention and granted an asylum-seeker certificate. He was instructed to reside in the Sakarya province pending the determination of his asylum request. 15.     On 30 April 2011 the applicant went to a private clinic in Istanbul complaining of a cough and fatigue. He was diagnosed with an infection of the lower respiratory tract on the basis of a chest X-ray examination. He was prescribed a ten-day course of antibiotics and was asked to return to the clinic for a check-up at the end of that period. It is not clear whether the applicant did return to the clinic for his check-up. 16.     On 9 June 2011, as his symptoms persisted, the applicant went to the Süreyyapaşa Thoracic and Cardiovascular Surgery Training and Research Hospital in Istanbul. Further medical tests conducted at the hospital revealed that the applicant was suffering from tuberculosis pleurisy. He received in-patient treatment at the hospital until 15 June 2011. On being discharged, he was advised to apply to a tuberculosis clinic for follow-up treatment. The applicant has not provided any information regarding his state of health or the treatment he received following his discharge. B.     The conditions of detention at the Kumkapı Removal Centre 1.     The applicant’s account 17.     The applicant claimed that the Kumkapı Removal Centre was severely overcrowded at the time of his detention, which lasted five months and twenty-seven days. He had to share a dormitory room of approximately 40   sq.   m with twenty-four to forty-five other people, who were provided with only fifteen bunk-beds. The centre had an overall capacity of 560 people at the relevant time, but accommodated around 600 people. The overcrowding of the centre led to problems of hygiene. The building was infested with insects and there were frequent outbreaks of contagious diseases; he had thus contracted a serious bacterial infection. The quality and quantity of the food provided was also fairly poor. Moreover, there was no provision for outdoor exercise at the Kumkapı Removal Centre, which meant that he had been unable to go outside throughout his detention. 2.     The Government’s account 18.     The Government submitted that the Kumkapı Removal Centre where the applicant was detained had a capacity of 300 persons. The detainees were accommodated on three floors: the first two floors were reserved for male detainees, and the third floor for females. There were five dormitory rooms on each floor, measuring 50, 58, 69, 76 and 84 sq. m respectively. There were fifteen to twenty beds in each of the ten rooms reserved for male detainees and all rooms were sufficiently ventilated. There were also five showers and six toilets per floor, as well as a cafeteria measuring 69   sq.   m, where breakfast, lunch and dinner were served daily on each floor. The detainees had the right to outdoor exercise in suitable weather conditions. A doctor was present on the premises every Thursday 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 at the removal centre, and the building was disinfected whenever necessary. 19.     In support of their claims, the Government submitted, inter alia , photos of two of the dormitory rooms, both of which appeared well lit and fairly clean, as well as of the hallway and the cafeteria on one of the floors reserved for male detainees. Although the total number of beds cannot be ascertained from the photos, it is observed that there were two rows of bunk beds positioned against the walls in both rooms, leaving a narrow corridor in the middle of the room. While some of the bunks were touching each other, others were separated by big metal lockers. No other furniture, such as tables and chairs, was present in the rooms; there were blankets on the beds in only one of the rooms and the other room had no bedding at all. A television was available on each floor in the cafeteria. Moreover, a metal sit ‑ up bench and an exercise bike were shown on the photo of the hallway of one of the floors reserved for male detainees. No photos of the toilets or the showers were provided. 20.     The Government further stated that when the applicant first arrived in the Kumkapı Removal Centre on 1   November 2010, there were 265 detainees in total (163 male and 102 female). They also claimed that from 1   November 2010 until the applicant’s release on 29 April 2011, the number of detainees never exceeded 300 and submitted the registers showing the occupation rates in respect of male detainees on various dates as follows:   Date Number of male detainees First floor Second floor Total 1 November 2010 No separate count No separate count 163 28 February 2011 55 101 156 1 March 2011 64 124 188 15 March 2011 52 114 166 31 March 2011 49 108 157 14 April 2011 42 Unknown Unknown 15 April 2011 Unknown 160 Unknown 28 April 2011 Unknown 136 Unknown II.     RELEVANT LAW AND PRACTICE A.     Domestic law and practice 1.     Relevant legislation and practice 21.     The relevant provisions of the Turkish Constitution provide as follows: Article 36 “Everyone has the right to a fair trial ..., as a claimant or defendant, before courts of law ...” Article 125 “All actions or decision taken by the authorities are amenable to judicial review ... If the implementation of an administrative measure would result in damage which is difficult or impossible to compensate and the measure is also clearly unlawful, a stay of execution may be granted, stating reasons ...” The administration shall be liable to make compensation for damage resulting from its actions or decisions.” 22.     Section 2(1) (b) of the Administrative Procedure Act (Law no.   2577) provides that administrative proceedings can be brought on account of a violation of personal rights by an administrative action or measure. 23.     A description of the other relevant domestic law and practice at the material time can be found in the case of Abdolkhani and Karimnia v.   Turkey (no. 30471/08, §§ 29-45, 22 September 2009). 2.     Report of the Sub-committee established by the Human Rights Inquiry Committee of the Grand National Assembly of Turkey 24.     At its meeting of 8 December 2011 the Human Rights Inquiry Committee of the Grand National Assembly of Turkey established a sub-committee to look into the problems encountered by refugees, asylum seekers and irregular migrants in Turkey, including the conditions in which they were detained pending their deportation. For that purpose, on 10 and 11   May 2012 two Members of Parliament (“MPs”) visited the removal centres in Edirne, Kırklareli and Istanbul, including the Kumkapı Removal Centre. 25.     The visit report indicated that the Kumkapı Removal Centre had a total capacity of 300 detainees (200 male and 100 female). However, at the time of the delegation’s visit (11 May 2012), the removal centre accommodated 297 male, 97 female and 7 minor detainees. The number of beds varied according to the rooms and the hygiene in the toilets and bathrooms was unsatisfactory. There was a big cafeteria in the removal centre, with sufficient amenities, as well as the possibility to purchase food and basic provisions. The detainees had freedom of movement inside the centre and also had access to television in the cafeterias. They also benefited from the sports equipment provided in the corridors. 26.     The delegation was particularly critical of the fact that the detainees were authorised to go outdoors only once a week, when the weather conditions permitted. It recommended measures allowing the detainees daily outdoor exercise at their own convenience. B.     International material 27.     The standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment concerning the conditions of detention of foreign nationals (see the CPT standards, document no. CPT/Inf/E (2002) 1- Rev. 2013) provide, in so far as relevant, as follows: “29.     In the view of the CPT, in those cases where it is deemed necessary to deprive persons of their liberty for an extended period under aliens legislation, they should be accommodated in centres specifically designed for that purpose, offering material conditions and a regime appropriate to their legal situation and staffed by suitably-qualified personnel. Obviously, such centres should provide accommodation which is adequately-furnished, clean and in a good state of repair, and which offers sufficient living space for the numbers involved. Further, care should be taken in the design and layout of the premises to avoid as far as possible any impression of a carceral environment. As regards regime activities, they should include outdoor exercise, access to a day room and to radio/television and newspapers/magazines, as well as other appropriate means of recreation (e.g. board games, table tennis). The longer the period for which persons are detained, the more developed should be the activities which are offered to them. ... 79.     Conditions of detention for irregular migrants should reflect the nature of their deprivation of liberty, with limited restrictions in place and a varied regime of activities. For example, detained irregular migrants ... should be restricted in their freedom of movement within the detention facility as little as possible.” The same report also indicates, on pages 25 and 26, that material conditions of detention may in certain cases be such as to favour the spread of transmissible diseases and that States have a duty of care towards persons deprived of their liberty to prevent this problem by, inter alia , ensuring satisfactory hygiene and absence of overcrowding in places of detention, as well as access to natural light and good ventilation. 28.     In June 2009 the CPT visited six removal centres for foreigners in different provinces in Turkey, including the Kumkapı Removal Centre in Istanbul (referred to as the “Istanbul-Kumkapı Detention Centre”) where the applicant was also detained. The relevant extracts from its visit report dated 16   December 2009 read as follows: “ Istanbul-Kumkapı Detention Centre , which was opened in March 2007, is the largest detention facility for immigration detainees in Turkey, with an official capacity of 560 places (for 360 male and 200 female detainees). At the time of the visit, the centre was accommodating 124 foreign nationals. ... 44.     As regards material conditions in the detention centres visited, the delegation noted a sharp reduction in the number of detained persons during the two preceding weeks in several establishments visited (in particular at Istanbul-Kumkapı and Edirne-Tunça), where apparently up to 50% of all detainees had been released. This had obviously had a beneficial effect on the living conditions prevailing in the establishments at the time of the visit. ... 45.     At Istanbul-Kumkapı, material conditions in the new detention facility were generally much better than those found in the past in the former detention facilities in Istanbul [footnote: Though some improvements were made only very shortly before the visit (e.g. painting of walls, contracting of external cleaning staff, etc.)]. In particular, most detention rooms were spacious, well lit (with good access to natural light) and very clean. That said, it is clear that the centre’s current official capacity of 560 places is far too high, given the space and facilities available. In particular, the living space in the detention rooms is insufficient (e.g. 58 m² for 30 beds), and communal rooms are inadequate in terms of size and equipment (e.g. on the ground floor with a total of 120 beds, the communal room was equipped with eight tables and 23 chairs). The CPT recommends that steps be taken to significantly reduce the official capacity of Istanbul-Kumkapı Detention Centre and to ensure that future occupancy levels are always kept within the limits of the new capacity . ... 47.     It is of particular concern that, with the exception of Kırklareli and, as regards women and children, Istanbul-Kumkapı [footnote: At Kumkapı, the existing courtyard was primarily used as a parking area for police vehicles. Due to the limited space available, only female detainees and children benefited from daily outdoor exercise, whereas male adult detainees were usually denied outdoor exercise for weeks and months on end], foreign nationals held in the detention centres visited were offered no outdoor exercise at all. Such a state of affairs is unacceptable. During the end-of-visit talks, the delegation made an immediate observation and called upon the Turkish authorities to take the necessary measures to ensure that all immigration detainees at the detention centres in Ağrı, Edirne-Tunça, Istanbul-Kumkapı, Konya and Van are able to benefit from at least one hour of outdoor exercise per day. By letter of 23 September 2009, the Turkish authorities informed the Committee that foreign nationals held at Istanbul-Kumkapı Detention Centre “are allowed to open air for an average of one hour per day and benefit from outdoor activities”... The CPT welcomes the steps taken thus far and would like to receive confirmation that all foreign nationals held at Ağrı and Istanbul-Kumkapı Detention Centres are able to benefit from at least one hour of outdoor exercise per day. ... 51.     In several detention centres visited, many complaints were received about the quality and/or quantity of the food provided. The director of one of the centres visited affirmed to the delegation that, in his experience, the budgetary allocation of 4.60   TLR per person and day was clearly insufficient. The CPT recommends that the provision of food to immigration detainees be reviewed in all the detention centres for foreigners, to ensure that it is adequate in terms of both quantity and quality.” 29.     On 11 June 2010 the Turkish Government responded to the aforementioned CPT report. Below are extracts from the relevant parts of the Government’s response: “According to Article B/4 of the Circular on the fight against illegal migrants (No.   632 dated 19 March 2010), a Directive will be prepared by the Directorate General of Security to be disseminated to Governorships, on the physical condition requirements of the return centers and basic management elements of these centers. This Directive will cover the issues such as establishment and administration of return centers, arrangement of in kind and monetary assistance allocated by the NGOs, relations with these organizations, registries on illegal migrants accommodated in these centers (compulsory registry books and modalities of safekeeping precious belongings as well as other belongings   of illegal migrants that cannot be used at return centers) and modalities of transferring illegal migrants from provinces where holding capacity has been surpassed to other provinces with available places. ... Article B/5 of the Circular on the fight against illegal migration states that ‘the necessary conditions of the return centers where illegal migrants are   accommodated until their deportation and the basic elements of implementation in these centers are enclosed and procedures shall be conducted according to these elements until the Directive issued by the Directorate General of Security enters into force.’ According to Article 19 of the “Basic Elements” Section of the Circular, the following procedures   shall be conducted regarding the centers; ... e.     Necessary measures shall be taken for adequate access to natural light. f.     Outdoor exercise on a daily basis shall be offered to persons held for 24 hours or more. g.     Necessary measures shall be taken in order to provide longer hours and a greater   variety of activities to the illegal migrants accommodated in the centre. h.     Television sets shall be provided for the use of illegal migrants. ... According to Articles 9, 10, 11, 12 and the “Basic Elements” Section of the Circular on the fight   against illegal migration; -Hot water shall be provided throughout the day. -Sufficient number of toilets shall be constructed both in men’s and women’s sections. -Sufficient number of washing machines shall be provided. Sheets and blankets utilized by illegal migrants shall be regularly washed to meet hygiene conditions. -Mineral water shall be provided on a daily basis to illegal migrants, where tap water is not   potable. -The services provided to illegal migrants (such as food and cleaning) shall be realized by outsourcing, in principle. ...” 30.     The United Nations (“UN”) Special Rapporteur on the human rights of migrants, Mr François Crépeau, undertook an official visit to Turkey on 25 ‑ 29 June 2012 at the invitation of the Turkish Government. He visited, inter alia , the removal centres in Kumkapı and Edirne, and submitted a report to the UN General Assembly on 17 April 2013 (A/HRC/23/46/Add.2). The relevant parts of the report read as follows: “42.     During his visit, the Special Rapporteur noted an insufficient regulation of the reasons for administrative detention of migrants, its duration, detention conditions and the access to safeguards for the detained migrants. ... 52.     While a circular issued by the Turkish National Police in September 2010 gave the instruction to systematically inform irregular migrants held in removal centres in writing of the reason for being held in the centre, the duration of stay, their right to have access to a lawyer, and the right of appeal against the decision to be held in a removal centre or deportation order, the Special Rapporteur’s interviews with detained migrants at Edirne and Kumkapı removal centres indicate that this circular is not systematically implemented in practice. ... 54.     The Special Rapporteur also remains disturbed about the conditions in these removal centres: detainees, including children, are often locked in their rooms or wards, and are given little or no access to outdoor areas. Overcrowding and unclean conditions, including inadequate food, are also significant concerns.” 31.     The European Commission’s 2011 Progress Report on Turkey published on 12 October 2011 (SEC (2011) 1201) made the following observations regarding the absence of detailed provisions on the management of removal centres in Turkey (page 91): “4.24 ... There is no comprehensive set of rules/guidelines for the management and operation of removal centres. The TNP [Turkish National Police] has been tasked with drafting a ‘directive’ to regulate issues concerning the management of removal   centres, including the physical conditions in centres, staff to be appointed, the security of and in the centres, provision of food and health, treatment of vulnerable groups, as well as involvement of civil society in the centres. This ‘directive’ has not yet been adopted.” The Progress Report of 2012 (published on 10 October 2012, SWD 2012 (336) page 75) similarly noted that “minimum living standards at removal centres and their inspection remain unregulated”. 32.     Lastly, in its report “Stranded: Refugees in Turkey Denied Protection” released in 2009 [1] , Amnesty International expressed its concerns regarding the arbitrary detention of asylum seekers and refugees in Turkey in the following terms: “Amnesty International is concerned that many of the violations of the rights of refugees and asylum-seekers in detention stem from the lack of legal protection in national law for persons   in administrative detention. Asylum-seekers and refugees held in administrative detention in foreigners’ guest-houses are regarded as under administrative supervision ( idari gözetim )   rather than detention. In practice this results in asylum-seekers and refugees being unfairly denied the legal protections applicable to all persons in detention provided under   international law. Irrespective of national law categorizations, individuals hold rights under international law as highlighted above, including the right to be free from arbitrary detention and protections if detained.” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 33.     Relying on Article 5 §§ 1, 2, 3 and 4 and Article 13 of the Convention, the applicant complained that he had been unlawfully detained without the opportunity to challenge the lawfulness of his detention and that he had not been duly informed of the reasons for his deprivation of liberty. He further maintained, under Article 5 § 5 of the Convention, that he had had no right to compensation under domestic law in respect of these complaints. 34.     The Court considers at the outset that the complaint under Article   13 falls to be examined under Article 5 § 4 of the Convention alone, which provides a lex specialis in relation to the more general requirements of Article   13 (see Amie and Others v. Bulgaria , no. 58149/08, §   63, 12   February 2013). A.     Admissibility 35.     As regards the complaint under Article 5 § 3 of the Convention, the Court notes that the applicant was not arrested or detained in accordance with the provisions of paragraph 1 (c) of Article 5, as no criminal charges were brought against him on suspicion of having committed an offence. It follows that this complaint is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention (see Soldatenko v.   Ukraine , no. 2440/07, § 103, 23 October 2008). 36.     The Court notes that the remaining complaints under Article 5 §§   1, 2, 4 and 5 are not manifestly ill ‑ founded within the meaning of Article   35 §   3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B.     Merits 1.     Alleged violation of Article 5 § 1 of the Convention 37.     The Government stated that the applicant had been detained from 25   October 2010 to 29 April 2011 for deportation purposes, within the meaning of Article 5 § 1 (f) of the Convention. 38.     The applicant maintained his allegation that his detention had had no legal basis in domestic law. 39.     The Court has already examined a similar grievance in the case of Abdolkhani and Karimnia v. Turkey, no. 30471/08, §§   125 ‑ 135 , 22   September 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’ detention was not “lawful” 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. 40.     There has accordingly been a violation of Article 5 § 1 of the Convention in the instant case. 2.     Alleged violation of Article 5 § 2 of the Convention 41.     The Government submitted that, following his arrest, the applicant was questioned by police officers on 26 October 2010 in relation to his illegal entry into Turkey, at which point he was also informed of the reasons for his detention. 42.     The applicant reiterated his complaint. 43.     The Court notes that the general principles governing the elementary safeguard embodied in Article 5 § 2 of the Convention have been set out in the case of Abdolkhani and Karimnia (cited above, § 136). The Court reiterates in this connection that in accordance with Article 5 § 2, anyone who is arrested must be told, in simple, non-technical language that can be easily understood, the essential legal and factual grounds for the arrest, so as to be able, if he or she sees fit, to apply to a court to challenge its lawfulness in accordance with Article 5 § 4. 44.     Referring to the Government’s submission noted in paragraph   37 above, the Court observes that the applicant was detained for deportation purposes from the very start of his detention on 25 October 2010. Nevertheless, neither the record of the interview dated 26 October 2010, nor any other documents submitted by the Government show that he had been notified of the reasons for his detention at the airport police station or subsequently at the Kumkapı Removal Centre (see Dbouba v.   Turkey , no.   15916/09, § 52, 13 July 2010). 45.     There has therefore been a violation of Article 5 § 2 of the Convention. 3.     Alleged violation of Article 5 §§ 4 and 5 of the Convention 46.     The Government submitted that the applicant could have applied to the administrative courts under Articles 36 and 125 of the Constitution in order to challenge the lawfulness of his detention. 47.     The applicant maintained his allegations and claimed that the remedy suggested by the Government was not effective in practice. 48.     The Court notes that it has found a violation of Article 5 §§ 4 and   5 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’s position with a remedy whereby they could obtain judicial review of the lawfulness of their detention, within the meaning of Article   5   §   4, and receive compensation for their unlawful detention as required under Article 5 § 5 of the Convention (see Abdolkhani and Karimnia , cited above, § 142; Tehrani and Others v. Turkey , nos.   32940/08, 41626/08 and 43616/08, § 79, 13 April 2010; and Dbouba , cited above, §§   53 ‑ 54). 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 grounds of 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. 49.     Moreover, the Court has already found that the applicant was not duly informed of the reasons for the deprivation of his liberty (see paragraph   45 above). It considers that this fact in itself had the effect that the applicant’s right of appeal against his detention under Article 5 § 4 was deprived of all substance (see Shamayev and Others v.   Georgia   and   Russia , no.   36378/02, § 432, ECHR 2005 ‑ III; Abdolkhani and Karimnia , cited above, § 141; and Dbouba , cited above, § 54). 50.     In the light of the above, the Court concludes that there has been a violation of Article 5 §§ 4 and 5 of the Convention. II.     ALLEGED VIOLATION OF ARTICLE 3 TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13 OF THE CONVENTION IN CONNECTION WITH THE APPLICANT’S DETENTION 51.     Relying on Article 3 of the Convention, the applicant complained about the material conditions at the Kumkapı Removal Centre and alleged that he had been denied medical assistance there despite the health problems that had affected him during the last three or four months of his detention. He also complained, under Article 13, that there were no effective domestic remedies available to him to complain of a violation of his rights under Article   3. A.     Material conditions of detention 1.     Admissibility 52.     The Government submitted that this part of the application should be rejected for failure to exhaust domestic remedies, as required by Article   35 §   1 of the Convention. They maintained in this connection that the applicant should have applied to the administrative or judicial authorities and sought compensation in accordance with Article 125 of the Constitution or section   2(1) (b) of the Administrative Procedure Act. The Government indicated that they were not able to submit any sample administrative or judicial decisions specifically reviewing conditions of detention at a foreigners’ removal centre; however, that did not mean that the administrative remedies they suggested were ineffective. Instead, they submitted a sample case in which an administrative court had awarded compensation under Article 125 of the Constitution to a person whose son had lost his life in police custody, following the conviction of the relevant police officers of torture. 53.     The applicant contested the Government’s argument, stating that no adequate remedy existed in relation to his complaint, which also explained the Government’s failure to submit concrete and relevant examples of how the legal provisions in question would provide effective redress in practice. The applicant, for his part, submitted two different examples, in which the Istanbul Governor’s Office had refused to institute criminal proceedings in respect of the complaints of two foreigners as regards the conditions of detention at two different removal centres, including the one in Kumkapı. Both decisions of the Istanbul Governor’s Office had been upheld by the Istanbul Regional Administrative Court. The claimant, who had been held in Kumkapı, had expressly complained of the severe overcrowding there, but neither the Governor’s Office nor the Istanbul Regional Administrative Court had responded to that allegation in their decisions. In those circumstances the applicant considered that there was no point in using a remedy regarding the poor conditions of his detention. 54.     The Court considers that the issue of exhaustion of domestic remedies is closely linked to the merits of the complaint that the applicant did not have an effective remedy at his disposal by which to complain of the inhuman and degrading conditions during his detention. The Court therefore finds it necessary to join the Government’s objection to the merits of the complaint under Article 13 of the Convention (see, among others, Sergey Babushkin v. Russia , no. 5993/08, § 34, 28 November 2013). 55.     The Court further finds that the applicant’s complaints under Articles   3 and 13 of the Convention concerning the conditions of his detention at the Kumkapı Removal Centre and the lack of effective remedies in that respect are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds. The Court therefore declares these complaints admissible. 2.     Merits (a)     Article 13 of the Convention 56.     As indicated in paragraph 52 above, the Government submitted that the applicant had had effective remedies in respect of his grievances about the conditions of his detention. 57.     The applicant reiterated his complaints and arguments set out in paragraph   53 above. 58.     The Court points out that Article 13 of the Convention guarantees the availability at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention as in the present case (see below paragraphs 74-81) and to grant appropriate relief (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI). 59.     The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be effective in practice as well as in theory, in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that has already occurred (see Ananyev and Others v. Russia , nos.   42525/07 and   60800/08, § 96, 10 January 2012). The existence of the remedies in question must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see Ananyev and Others , cited above, § 94). The “authority” referred to in Article   13 does not necessarily have to be a judicial authority, but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. 60.     In the area of complaints about inhuman or degrading conditions of detention, the Court has already observed that two types of relief are possible: (i) an improvement in the material conditions of detention, and (ii)   compensation for the damage or loss sustained on account of such conditions. If an applicant has been held in conditions that are in breach of Article   3, a domestic remedy capable of putting an end to the ongoing violation of his or her right not to be subjected to inhuman or degrading treatment is of the greatest value. However, once the applicant has left the facility in which he or she endured the inadequate conditions, he or she should have an enforceable right to compensation for the violation that has already occurred (see Sergey Babushkin , cited above, § 40). 61.     The Court stresses that where the fundamental right to protection against torture, inhuman or degrading treatment is concerned, preventive and compensatory remedies have to be complementary in order to be considered effective. In contrast to cases concerning the length of judicial proceedings or non-enforcement of judgments, where the Court has accepted in principle that a compensatory remedy alone may suffice (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 187, ECHR 2006 ‑ V; and Burdov v. Russia (no. 2) , no. 33509/04, § 99, ECHR 2009 ‑ ...), the existence of a preventive remedy is indispensable for the effective protection of individuals against the kind of treatment prohibited by Article 3. Indeed, the special importance attached by the Convention to that provision requires, in the Court’s view, that the States parties establish, over and above a compensatory remedy, an effective mechanism in order to put an end to any such treatment rapidly. Otherwise, the prospect of future compensation would legitimise particularly severe suffering in breach of this core provision of the Convention and unacceptably weaken the legal obligation on the State to bring its standards of detention into line with the Convention requirements (see Ananyev and Others , cited above, § 98). 62.     Turning to the facts of the present case, the Court observes that the Government have suggested, in broad terms, that it was open to the applicant to raise his complaints with the domestic authorities and bring an action for compensation before the administrative courts in general judicial review proceedings as provided for in Article 125 of the Constitution and section   2(1)(b) of the Administrative Procedure Act. They did not refer to any other remedies designed specifically to afford redress for inadequate conditions of detention in foreigners’ removal centres. 63.     The Court reiterates in this regard that it is incumbent on the respondent Government to illustrate the practical effectiveness of the remedies they suggest in the particular circumstances in issue with examples from the case-law of the relevant domestic courts or decisions of the administrative authorities (see Ananyev and Others , cited above, § 110; and Stanev v. Bulgaria [GC], no. 36760/06, § 219, ECHR 2012). The Turkish Government did not, however, submit a single judicial or administrative decision showing that an immigration detainee had been able to vindicate his or her rights by using the remedies suggested, that is, where recourse to an administrative court or authority had led to the improvement of detention conditions and/or to an award of compensation for the anguish suffered on account of the adverse material conditions (see similar findings of the Court in the context of Article 35 § 1 in Abdolkhani and Karimnia v.   Turkey (no.   2) , no. 50213/08, § 25, 27 July 2010; and Kurkaev v.   Turkey , no.   10424/05, §§ 26-27, 19 October 2010). They likewise failed to provide an explanation as to why they could not submit any such examples. 64.     The Court considers that the onus on the Turkish Government to prove the existence of effective domestic remedies in this context was particularly stringent for two reasons. Firstly, the Court reiterates that there was a lacuna in Turkish law at the material time regarding the detention of foreign nationals in the context of immigration controls, whereby such practice was not regarded as a deprivation of liberty but as mere “accommodation” or “sheltering” of foreigners in removal centres or “guest houses” pending their deportation (see, for instance, Abdolkhani and Karimnia , cited above, § 120, as well as the relevant extract from the Amnesty International report cited in paragraph 32 above). The wholly arbitrary practice governing the deprivation of liberty of immigration detainees raises a legitimate concern about the extent to which these individuals’ rights would be upheld when challenging the conditions of their unrecognised detention. Secondly, as noted by the UN Special Rapporteur and the European Commission, at the material time there was no comprehensive regulation in Turkey on the conditions in which irregular immigrants should be detained (see paragraphs 30 and 31 above). In its response to the CPT report of 16 December 2009, the Government indicated that the Directorate General of Security had been tasked with preparing a directive concerning, inter alia , the material conditions in foreigners’ removal centres and that the “basic elements” set out in Circular no.   632 would apply in the interim (see paragraph 29 above). The Court notes that the Government have not provided any information on whether the “basic elements” are being enforced. Nor have they indicated whether the aforementioned directive has come into force. In these circumstances, even assuming that detention conditions in foreigners’ removal centres were amenable to review, as indicated by the Government, the standards against which such conditions would be assessed are unclear. 65.     In view of this ambiguity regarding all aspects of detention pending deportation, the Court requires more concrete evidence of the effectiveness in practice of the remedies suggested by the Government. In the absence of such evidence, the Court cannot but conclude that the capacity of the general remedies mentioned by the Government to provide effective preventive and/or compensatory redress in this context has not been established with a sufficient degree of certainty. 66.     The Court therefore rejects the Government’s objection concerning the non-exhaustion of domestic remedies and concludes that there has been a violation of Article 13 on account of the absence of an effective remedy to complain about the conditions of detention on the particular facts of the instant case. (b)     Article 3 of the Convention (i)     The parties’ submissions 67.     The Government reiterated their account of the detention conditions at the Kumkapı Removal Centre (see paragraphs 18-2