SECOND SECTION

CASE OF KUNSHUGAROV v. TÜRKİYE

(Applications nos. 60811/15 and 54512/17)

JUDGMENT

Art 13 (+ Art 2) • Effective remedy with automatic suspensive effect precluding the applicant’s removal before the finalisation of the extradition proceedings • Adequate assessment of applicant’s claims that he would face a real risk of being subjected to the death penalty if extradited to Kazakhstan • Assurances by Kazakhstan offering sufficient guarantees

Art 3 • Extradition • Domestic authorities’ failure to carry out an adequate examination of applicant’s claims of a real risk of ill-treatment prior to his forcible return to Kazakhstan • Assurances by Kazakhstan insufficient

Art 3 (substantive) • Degrading treatment • Inadequate material conditions of applicant’s detention in the Removal Centre coupled with the possible anxiety caused by the uncertainty as to when his detention would end

Art 5 § 1 • Lawful administrative detention of the applicant during the first set of deportation proceedings against him

Art 5 § 4 • Constitutional Court’s failure to conduct a review of the lawfulness of the applicant’s detention in a speedy and effective manner

Prepared by the Registry. Does not bind the Court.

STRASBOURG

14 January 2025

FINAL

14/04/2025

This judgment has become final under Article 44 § 2 of the Convention.
It may be subject to editorial revision.

In the case of Kunshugarov v. Türkiye,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Arnfinn Bårdsen, President,
Saadet Yüksel,
Pauliine Koskelo,
Jovan Ilievski,
Davor Derenčinović,
Gediminas Sagatys,
Stéphane Pisani, judges,
and Hasan Bakırcı, Section Registrar,

Having regard to:

the applications (nos. 60811/15 and 54512/17) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Kazakhstani national, Mr Yeldos Kunshugarov (“the applicant”), on the various dates indicated in the appended table;

the decision to give notice to the Turkish Government (“the Government”) of the complaints concerning Articles 2, 3 and Article 5 §§ 1, 2, 4, 5 as well as Article 13 in conjunction with Articles 2 and 3 of the Convention and to declare inadmissible the remainder of the applications;

the parties’ observations;

Having deliberated in private on 10 December 2024,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The applicant is a national of Kazakhstan. The applications mainly concern (i) his threatened removal (“expulsion” and “extradition”) to Kazakhstan, where he would allegedly face a risk of death or ill-treatment, (ii) the alleged failure of the administrative and judicial authorities to conduct an adequate examination of the risks to which he would be exposed there, (iii) the alleged unlawfulness and allegedly poor conditions of his detention at the Kumkapı Foreigners’ Removal Centre (“the Kumkapı Removal Centre”) pending the expulsion proceedings, and (iv) the alleged failure of the domestic courts to assess adequately his objections in respect of his detention pending expulsion.

2. The applicant relies on Articles 2, 3, 5 and 13 of the Convention.

THE FACTS

The circumstances of the case

3. The applicant is a Kazakhstani national who was born in 1988. He was detained in Türkiye at the time of the lodging of the applications. According to the latest information in the case file, he is currently serving a prison sentence in Stepnogorsk Prison (тюрьма ЕЦ-166/18) in Akmola, Kazakhstan.

4. The applicant was represented by Mr A. Yılmaz, a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.

5. On 9 December 2015 the applicant’s representative submitted an application to the Court, under Rule 39 of the Rules of Court, for the Court to indicate, as an interim measure, the suspension of the applicant’s threatened extradition to Kazakhstan and his release from the Kumkapı Removal Centre, where he was allegedly being subjected to conditions of detention amounting to inhuman and degrading treatment.

6. On 10 December 2015, the duty judge decided to refuse the applicant’s request, and informed the applicant that his request was premature, as the proceedings regarding his removal from Türkiye were still pending before the domestic courts. His request to the Court was registered under application no. 60811/15.

7. On 28 July 2017, the applicant’s representative again lodged a request that the Court indicate the above-mentioned interim measure.

8. On 31 July 2017, the applicant’s Rule 39 request was refused once again. This request was registered under application no. 54512/17.

9. On 20 April 2018 notice of the complaints raised in both applications under Articles 2 and 3, Article 5 §§ 1, 2, 4, and 5 and Article 13 of the Convention was given to the Government; the remainder of the applications was declared inadmissible, pursuant to Rule 54 § 3 of the Rules of Court. On the same day, the President of the Section also decided to grant priority to these applications, under Rule 41 of the Rules of Court.

10. On 11 July 2019 the President of the Section decided to discontinue the application of Rule 41 of the Rules of Court.

11. The facts of the case may be summarised as follows.

The applicant’s arrival in Türkiye and the extradition proceedings

12. According to the applicant’s submissions, he left Kazakhstan in 2009 and entered Türkiye in 2011. On 4 November 2011 the applicant lodged an asylum application with the Istanbul Governor’s Office and, on an unspecified date, with the Office of the United Nations High Commissioner for Refugees (UNHCR). The applicant’s asylum application was dismissed by the domestic authorities on 28 November 2011. On 24 April 2015 he lodged an objection to this decision with the Ankara Administrative Court, which dismissed his objection. A subsequent appeal to the Supreme Administrative Court was also rejected.

13. In 2012 extradition proceedings were initiated against the applicant on the basis of a Red Notice issued by the Kazakh authorities via Interpol. The applicant was sought for mercenary activities and terrorism-related offences that he had allegedly committed in Kazakhstan as a member of the Islamic Jihad Union, a terrorist organisation which carried out terrorist attacks in the western region of Kazakhstan.

14. In a judgment dated 12 April 2012 the Kartal 1st Assize Court refused an extradition request lodged by the Kazakh authorities on the grounds that the acts as a consequence of which the applicant’s extradition was requested were punishable by the death penalty under the domestic law of Kazakhstan.

15. Following an appeal lodged by the Chief Public Prosecutor’s Office, on 27 February 2013 the Court of Cassation quashed the Assize Court’s judgment of 12 April 2012 on the grounds that the provisions of the bilateral extradition treaty between Türkiye and Kazakhstan had not been given due consideration. The Court of Cassation ordered a re-examination of the case by the first-instance court.

16. Subsequently, the Istanbul 1st Assize Court held a series of hearings between 18 April 2013 and 29 September 2016 regarding the above-mentioned request for the applicant’s extradition. According to the information in the case file, at the hearing held on 11 November 2015, the applicant claimed that he would be exposed to a real risk of being sentenced to death or of being subjected to ill‑treatment if extradited to Kazakhstan. Although he never acknowledged any affiliation with any terrorist organisation, he asserted that the offences with which he had been charged were punishable by death. He further argued that his extradition could not be allowed because his asylum application was still pending. On the same day, the Istanbul 1st Assize Court requested the Ministry of Justice to obtain sufficient assurances from the Government of Kazakhstan that, in the event that the applicant was extradited, (i) he would not be sentenced to death, as provided by the relevant Kazakh criminal law in force at the material time, and (ii) even if he were sentenced to death, that penalty would not be carried out. It further requested guarantees indicating that the applicant’s defence rights would be duly observed throughout the criminal proceedings and that he would be given the opportunity to make additional defence submissions in Kazakhstan.

17. Further to this request, the Ministry of Justice forwarded to the Istanbul 1st Assize Court the assurances received from the Prosecutor General’s Office of Kazakhstan on 17 November 2015. These contained guarantees that the applicant would not be subjected to torture or inhuman and degrading treatment and that he would enjoy all procedural safeguards provided by the United Nations International Covenant on Civil and Political Rights of 16 December 1966. They also stated that the death penalty was not applicable to the criminal offences with which the applicant was charged and that the applicant could therefore not be sentenced to death. The Kazakhstan authorities further undertook to ensure that the applicant would have a fair trial. Lastly, they gave assurances that the applicant would not be prosecuted for a political offence or be subjected to any form of discrimination on account of his race, religion, nationality or political opinions.

18. On 18 January 2016 the Prosecutor General’s Office of Kazakhstan submitted further assurances in respect of the applicant. In particular, the letter stated that the criminal charges against the applicant relating to the above-mentioned mercenary activities had been dropped and that the offences with which he was charged – namely, terrorism-related activities – were punishable by imprisonment and not by the death penalty. They also emphasised that a moratorium on executions imposed by a presidential decree of 17 December 2003 would remain in place until the death penalty was fully abolished and reiterated the assurances provided earlier (see paragraph 17 above). Finally, they guaranteed that, in the event of the applicant’s extradition, the Turkish authorities would be afforded unfettered access to the facility in which the applicant was being held in order to observe the conditions of his detention and to verify Kazakhstan’s compliance with international human rights standards.

19. Following a series of proceedings, on 29 September 2016 the Istanbul 1st Assize Court declared the extradition request admissible (iade talebinin kabul edilebilir olması kararı). It reasoned that the assurances provided by the Kazakh authorities were sufficient and further referred to the moratorium on death penalty that had been in place in Kazakhstan for more than ten years. Moreover, it stated that the applicant’s application for asylum had been rejected by the competent domestic authorities.

20. The applicant lodged an appeal with the Court of Cassation, arguing that the diplomatic assurances provided by the Kazakh authorities could not be deemed sufficient as they were too broad, vague and not tailored to the specifics of the applicant’s case and that no specific guarantee had been given that the applicant would not be ill-treated in Kazakhstan. He also reiterated that his extradition should not have been permitted while the assessment of his objection to the dismissal of his asylum application was still pending before administrative courts.

21. By a decision of 27 February 2017, the Court of Cassation upheld the judgment of 29 September 2016, stating that the judgment declaring the extradition request admissible was in accordance with the relevant law and procedure.

22. In the meantime, on 2 December 2016 the Istanbul Assize Court ordered the applicant’s detention under section 16(1) of the Law on International Judicial Cooperation in Criminal Matters (Law no. 6706) and Article 100 of the Code of Criminal Procedure (Law no. 5271. In support of its decision, the court referred to the nature of the offence with which the applicant was charged and to the risk of absconding. However, on the same day, the applicant was already arrested and detained in connection with a separate set of criminal proceedings pending against him (see paragraphs 45‑46 below).

23. Between 6 December 2016 and 26 January 2018 the applicant requested on numerous occasions that his detention be terminated. The Istanbul Assize Court refused all of these requests.

24. On 14 July 2017 the applicant filed an individual application with the Turkish Constitutional Court, also requesting that the extradition proceedings be suspended as an interim measure. He mainly reiterated the arguments that he made before the domestic courts (see paragraphs 16 and 20 above). In this respect, he argued that the moratorium on the execution of the death penalty merely constituted a policy and that it could not be deemed to constitute sufficient protection against the execution of the death penalty against him. He also complained that no specific assurances had been given that he would not be subjected to torture and other forms of cruel, inhuman or degrading treatment, which were prevalent in Kazakhstan. He further stated that the Prosecutor General’s Office of Kazakhstan – as a prosecuting authority – could not be deemed to be in a position to provide such assurances. As regards those grievances, he argued that there were no effective remedies that could be pursued before the domestic courts. Lastly, the applicant submitted that his detention pending extradition had been arbitrary and that there had been no adequate judicial review of the lawfulness of his detention.

25. On 18 July 2017 the Constitutional Court dismissed the applicant’s request for an interim measure on the grounds that he had failed to substantiate the risks invoked. It stated that, during the extradition proceedings, the Assize Court had examined the necessary guarantees provided by the Kazakh authorities that the applicant would not be sentenced to death or subjected to torture or ill-treatment, that he would receive a fair trial (without discrimination), and that the Turkish authorities would be allowed to observe the applicant’s trial at all stages of the proceedings.

26. On 1 February 2018 the Istanbul 1st Assize Court ordered the applicant’s release. However, he remained in detention pending the aforementioned criminal proceedings (see paragraph 46 below).

27. By a decision of 29 December 2021, the Constitutional Court terminated the proceedings, finding that the applicant had failed to lodge his individual application within the thirty-day period prescribed by law. With respect to the alleged risk of the applicant being subjected to the death penalty and ill-treatment if returned to Kazakhstan, it noted that the applicant’s lawyer had accessed the declaration (kesinleşme şerhi) on the National Judicial Network that the Assize Court’s judgment had become final. However, the individual application had been lodged on 14 July 2017 – long after the expiry of the thirty-day time-limit. As for the applicant’s complaints regarding the alleged unlawfulness of his detention, the Constitutional Court also found those complaints to have been lodged outside the time-limit, since the final decision ordering the continuation of his detention had been delivered on 9 December 2016 – some eight months before the lodging of the individual application. However, before the Constitutional Court had issued its decision, the applicant had been extradited to the Republic of Kazakhstan on 16 October 2018 (see paragraph 56 below).

The first set of deportation proceedings and the applicant’s detention pending his expulsion

28. On 2 November 2015, during a security operation targeting the Islamic State of Iraq and al‑Sham (“ISIS” or “IS” – also known as Islamic State of Iraq and the Levant (“ISIL”)), the applicant was arrested by the police for possessing a forged passport. On 4 November 2015 he was transferred to the Kumkapı Removal Centre in Istanbul (“the Kumkapı Removal Centre”). On the same day the Istanbul Governor’s Office issued an order for the applicant’s deportation, under section 54(1)(c) and (d) of the Foreigners and International Protection Act (Law no. 6458), for using falsified documents and constituting a threat to public order. It also ordered his administrative detention pending deportation.

29. On 5 November 2015 the applicant brought an action in the Istanbul Administrative Court for the annulment of the deportation order. He argued that deportation to Kazakhstan would expose him to a real risk of death or ill‑treatment. On 17 November 2015 he lodged a new application for asylum. While it is established that this petition was officially registered with the Istanbul Governor’s Office, there is no information in the case file as to the outcome of this second asylum application (in respect of the first asylum application, see paragraph 12 above).

30. On 10 November 2015 the applicant lodged an application with the Istanbul Magistrate’s Court, challenging the lawfulness of his detention at the Kumkapı Removal Centre and requesting his release. By a decision of 26 November 2015, the Istanbul Magistrate’s Court dismissed the application, stating that the applicant had been arrested for possessing forged identity documents and that he was suspected of belonging to an Islamist militant organisation. According to the court, his detention pending deportation was therefore in accordance with the law.

31. On 19 November 2015 the applicant was transferred from the Kumkapı Removal Centre to the Aşkale Foreigners’ Removal Centre in Erzurum, where he stayed until 31 December 2015. On that latter date he was transferred back to the Kumkapı Removal Centre.

32. On 11 January and 10 February 2016 the applicant lodged two more applications for release with the Istanbul Magistrate’s Court challenging the lawfulness of his detention. On 29 February 2016 his requests were dismissed on the grounds that his administrative detention was in accordance with the law and procedure.

33. On 25 February 2016 the Istanbul Administrative Court dismissed the applicant’s request for the annulment of his deportation order. Noting that the applicant had initially been taken into custody in the course of a security operation and had been found to be in possession of a forged passport, it considered that the applicant had presented a serious threat to public order. It further held that the applicant could not claim the benefit of the principle of non-refoulement under the exclusion provided for by Article 33 § 2 of the Geneva Convention of 28 July 1951, since there were reasonable grounds for considering him to be a danger to public security. Accordingly, the court concluded that the administrative decision to deport the applicant from Türkiye was lawful.

34. On 18 March 2016, while still under administrative detention, the applicant lodged an individual application with the Constitutional Court and also requested the suspension of the deportation proceedings. He complained that the national authorities (including the Istanbul Administrative Court) had failed to fulfil their obligation to conduct an adequate examination of his assertions that he would be exposed to a real risk of death, torture or ill‑treatment if removed to Kazakhstan. He further complained of the material conditions of his detention at the Kumkapı Removal Centre. In this respect, he argued that the centre was severely overcrowded, and that this had also led to hygiene-related problems – including infestation by lice and bed bugs. He also submitted that he was exposed to constant light, tobacco smoke and surveillance by the CCTV cameras in the dormitory at all times of the day, which seriously disturbed his sleep. There was no regular provision for outdoor exercise and he had never been allowed access to outdoor exercise or any recreational activities throughout his detention. Finally, he complained that his detention had been arbitrary and that he had not had the opportunity to challenge the lawfulness of his detention. He had not been duly informed of the reasons for his detention, and nor had he been able to secure an effective judicial review of his detention pending expulsion or compensation for the alleged breaches of his right to liberty and security.

35. On the same day the Constitutional Court granted the applicant’s above-mentioned request for an interim measure, stating that further information and documents were needed to assess whether he would face a serious risk of death or ill-treatment if returned to Kazakhstan and that the implementation of the deportation order could cause irreparable harm to his life or integrity. It suspended the deportation proceedings until further notice.

36. On 12 July 2016 the applicant was transferred from the Kumkapı Removal Centre to the İzmir Işıkkent Foreigners’ Removal Centre (“the Işıkkent Removal Centre”). A week later, on 19 July 2016, he was transferred to the İzmir Harmandalı Foreigners’ Removal Centre (“the Harmandalı Removal Centre”). On 29 September and 18 October 2016 he lodged applications with the İzmir Magistrate’s Court, complaining of the unlawfulness of his continued detention. He argued that his detention had ceased to be lawful, since there was no realistic prospect of his removal following the interim measure indicated by the Constitutional Court (see paragraph 35 above). He further asserted that the length of his detention had exceeded that reasonably required for the purpose pursued. His requests were refused by the İzmir Magistrate’s Court, mainly on the grounds that a valid deportation order had been issued in respect of the applicant.

37. On 4 November 2016 the applicant was released following the expiry of the statutory maximum period for which he could be detained pending his deportation under domestic law.

38. On 30 November 2016 the applicant lodged a second individual application with the Constitutional Court, this time complaining of the alleged unlawfulness and the inadequate conditions of his detention in the Işıkkent and Harmandalı Removal Centres.

39. With respect to the applicant’s first individual application (see paragraph 34 above), on 17 April 2019 – at which point the applicant had already been extradited to Kazakhstan – the Constitutional Court found that the applicant’s right under Article 17 of the Constitution (prohibition of torture and inhuman or degrading treatment or punishment) had been violated on account of the domestic authorities’ failure to conduct an adequate assessment of his allegation that he would be exposed to a real risk of death or ill‑treatment if removed to his country of origin. It also awarded the applicant 1,000 Turkish liras[1] in compensation for non-pecuniary damage. As regards his complaints concerning the conditions of his detention, and his assertion that there existed no effective remedy whereby he could raise his allegations and complain of the unlawfulness of his detention, the Constitutional Court referred to its decision in B.T. (no. 2014/15769, 30 November 2017) and declared the applicant’s complaints inadmissible for his failure to bring an action seeking a full remedy (tam yargı davası) in the administrative courts, which in theory could have provided an effective remedy.

40. Following the Constitutional Court’s finding of a violation, the judicial proceedings concerning the applicant’s threatened removal from Türkiye were reopened. On 18 July 2019 the Istanbul Administrative Court annulled the deportation order of 4 November 2015 on the grounds that the authorities had failed to conduct a proper assessment to determine whether the applicant would face a real risk of being subjected to death or ill-treatment in the country of destination.

41. As regards the applicant’s second individual application (see paragraph 38 above), on 24 April 2019 the Constitutional Court issued a summary decision declaring those complaints (that is, regarding the alleged unlawfulness and the inadequate conditions of his detention in the Işıkkent and Harmandalı Removal Centres) inadmissible for failure to exhaust domestic remedies in line with its decision in B.T., in which it had indicated that the time-limit rules for bringing an action seeking a full remedy had to be applied flexibly in respect of applications that had been lodged with that court prior to the B.T. decision (see paragraph 63 below).

42. Subsequently the applicant brought an action in the İzmir Administrative Court seeking a full remedy in respect of the alleged unlawfulness and the material conditions of his administrative detention in the Işıkkent Removal Centre, which had ended on 4 November 2016. The court dismissed the case as having been lodged out of time on the basis of section 7 of the Administrative Procedure Act (“Law no. 2577”). It ruled that the applicant had been released from the Işıkkent Removal Centre on 4 November 2016, whereas he had brought the present action seeking compensation only on 9 July 2019 – well after the expiry of the sixty-day time-limit provided under the applicable legislation. Accordingly, it did not examine the merits of the applicant’s claims.

43. The applicant appealed this decision, arguing that, in accordance with the Constitutional Court’s ruling in B.T., the time-limit for bringing an action for a full remedy should have been calculated from the date of the Constitutional Court’s inadmissibility decision and not from the end of the applicant’s administrative detention.

44. On 7 July 2020 the applicant’s appeal was dismissed by the final decision of the İzmir Regional Administrative Court.

Criminal proceedings against the applicant

45. The applicant was released from the Işıkkent Removal Centre on 4 November 2016, but was taken into police custody on the same day in connection with the criminal proceedings brought against him for his alleged membership of ISIS.

46. On 15 November 2016 the İzmir Magistrate’s Court ordered the applicant’s pre-trial detention, and he was placed in İzmir F-type Prison.

47. On 27 February 2018 the İzmir Assize Court ordered the applicant’s release, but prohibited him from leaving the country.

48. On 17 April 2018 the İzmir Assize Court issued a detention order in absentia against the applicant. It is apparent from the case file that, at the material time, the applicant was already being held in administrative detention in connection with a second set of deportation proceedings (see paragraph 50 below).

49. On 10 October 2019 the İzmir Assize Court acquitted the applicant of the charges against him on the grounds that there was insufficient evidence against him to secure a criminal conviction.

The second set of deportation proceedings and the applicant’s ensuing detention

50. On 10 April 2018 the applicant was placed in detention once again. On 11 April 2018 the İzmir Governor’s Office issued another order for the applicant’s deportation under section 54(1)(b) and (d) of Law no. 6458 on account of his alleged affiliation with terrorist organisations and because his presence was considered to constitute a threat to public order. On the same day, the applicant was placed in administrative detention at the Harmandalı Removal Centre.

51. On two occasions the applicant lodged objections with the İzmir Magistrate’s Court against his administrative detention and requested that the court order his release. Both of those requests were refused.

52. On 13 April 2018 the applicant brought an action in the İzmir Administrative Court for the annulment of the deportation order. He argued that the interim measure indicated by the Constitutional Court on 18 March 2016 within the context of the first set of deportation proceedings against him remained in force (see paragraph 35 above), which constituted an impediment to his deportation. He also requested from the court an order for a stay of execution of the deportation order, since at the time that he lodged that request, lodging an appeal against deportation orders issued on certain grounds did not have automatic suspensive effect. The İzmir Administrative Court initially granted the applicant’s request for a stay of execution but later lifted it. It eventually dismissed the applicant’s action on 3 July 2018, holding that the applicant’s suspected affiliation with terrorist organisations and his use of forged identities constituted sufficient legal basis for his removal. Turning to the applicant’s allegations that he would face a real risk of death or ill-treatment if he were to be removed to Kazakhstan, the court referred to the findings of the Istanbul 1st Assize Court within the context of the extradition proceedings (see paragraph 19 above) – namely, that the assurances provided by the Kazakh authorities had been sufficient and that the applicant’s extradition was admissible.

53. On 16 May 2018 the applicant lodged an individual application with the Constitutional Court, whereby he mainly reiterated his fears that he would face the risk of death, ill-treatment and/or persecution if he were to be returned to Kazakhstan. He further complained of the inadequate detention conditions at the Harmandalı Removal Centre, the unlawfulness of his detention pending deportation proceedings and the lack of any effective domestic remedies by which to raise those allegations. He also requested, by way of an interim measure, the suspension of the deportation proceedings.

54. On 21 May 2018 the Constitutional Court dismissed the applicant’s request for an interim measure on the grounds that the risks invoked had not been substantiated. It further referred to the previous refusal (during the extradition proceedings) of the applicant’s request for an interim measure (see paragraph 25 above).

55. In a subsequent decision of 5 October 2022, the Constitutional Court struck the applicant’s complaints concerning his threatened deportation out of its list of cases on the ground that the applicant had already been extradited to Kazakhstan on 16 October 2018 (see paragraph 57 below). The applicant’s remaining complaints were once again declared inadmissible for failure to exhaust the available domestic remedies, in line with the B.T. decision (see paragraphs 39 and 41 above).

The applicant’s removal from Türkiye and alleged ill-treatment in Kazakhstan

56. In August 2018 the applicant was transferred from the Harmandalı Removal Centre to the Muğla Ula Foreigners’ Removal Centre.

57. Following the approval of the extradition request by the President of the Republic, on 16 October 2018 the applicant was extradited to Kazakhstan.

58. In a letter of 26 April 2022, the applicant’s representative informed the Court that, following his extradition to Kazakhstan, the applicant had been sentenced to eight years’ imprisonment and had been subjected to torture and various forms of ill-treatment in Stepnogorsk Prison (see paragraph 3 above). The applicant’s representative also submitted that although he and the applicant had requested copies of medical reports and other evidence to substantiate their allegations regarding the applicant’s ill-treatment in Kazakhstan, these efforts had been unsuccessful owing to the lack of cooperation by the Kazakh authorities.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

Domestic law and practice

Law no. 6458 on foreigners and international protection

59. A detailed description of the provisions of Law no. 6458 that governed (i) the procedures to be followed when removing foreign nationals from Türkiye, (ii) the administrative detention of foreign nationals pending their removal, and (iii) judicial review of removal and detention orders can be found in the cases of G.B. and Others v. Turkey (no. 4633/15, §§ 44-45, 17 October 2019), M.N. and Others v. Turkey (no. 40462/16, §§ 18-19, 21 June 2022), and J.A. and A.A. v. Türkiye (no. 80206/17, § 21, 6 February 2024).

Law no. 6706 on international judicial cooperation in criminal matters

60. The relevant provisions of Law no. 6706, which entered into force on 5 May 2016, provide as follows:

Article 11 – Grounds requiring a refusal to extradite

“ (1) A request for extradition shall not be granted if:

...

b) There is a strong suspicion that the person whose extradition is requested would be subject to an investigation or prosecution or be punished or be subjected to torture or ill-treatment because of his/her race, ethnic origin, religion, nationality, ... connection to a certain social group or political opinions,

...

d) The request for extradition is related to offences that carry a capital sentence or a criminal sentence that is incompatible with human dignity.

...

(3) In the event of a ... refusal [to extradite] in the light of the nature of the criminal sentence, a request for extradition may be granted if the requesting State provides sufficient guarantees that the prescribed sentence will not be carried out.

...”

Article 15 – Jurisdiction and Competence

“... (2) The Chief Public Prosecutor shall request a decision from the Assize Court on the extradition request.

...”

Article 12 – The connection between extradition and deportation proceedings

“ (1) An alien shall not be deported before the [Ministry of Justice] issues its opinion on the extradition proceedings.

...”

Article 18 – Extradition proceedings

“ (1) ... the court shall examine the extradition request in the manner prescribed by this Law and by the international agreements to which Türkiye is a party and shall decide whether the request is admissible.

...

(4) The Assize Court’s decision may be appealed. The Court of Cassation shall render a final decision on the appeal within three months. Upon the decision becoming final, the extradition file, along with the final decision, shall be transmitted to the [Ministry of Justice].”

Article 19 – Extradition decision

“ (1) Where an assize court decides that a request for extradition is admissible, the execution of that decision shall be subject to ... the approval of the President [of the Republic].

...”

Case-law of the Constitutional Court

61. The relevant decisions of the Constitutional Court on the availability of domestic remedies in respect of complaints concerning the material conditions of detention at foreigners’ removal centres and the unlawfulness of the measure of administrative detention can be found in G.B. and Others, cited above, §§ 53-62).

62. In its plenary decision of 30 November 2017 in the case of B.T. (no. 2014/15769), the Constitutional Court ruled that, in the case of applications lodged after the release of a detainee from a removal centre, an action for compensation brought in an administrative court in respect of the adverse material conditions of detention constituted an effective remedy that had to be exhausted prior to the lodging of an individual application with the Constitutional Court. Regarding complaints alleging the unlawful deprivation of a person’s liberty, the Constitutional Court held that seeking compensation in the administrative courts would similarly constitute an effective remedy – but only if a magistrate’s court had already found the administrative detention in question to be unlawful.

63. The relevant parts of the decision read as follows:

“48. Given the absolute nature of the prohibition of ill-treatment (as guaranteed under Article 17 of the Constitution), in order for a remedy [in respect of complaints stemming from adverse material conditions of detention] to be effective, it must have a preventive nature capable of putting an end to the ongoing violation ... and, where necessary, providing reasonable compensation as a complementary element. Otherwise, the mere possibility to seek compensatory remedies for such violations would (partially/implicitly) legitimise ill-treatment and hamper the State’s obligations to maintain detention conditions complying with the standards guaranteed by the Constitution. Therefore, as in the case of the present application, for complaints concerning “conditions of detention incompatible with human dignity”, an effective remedy should offer prospects for the improvement of detention conditions – as well as compensation for damages. On the other hand, in addition to a purely compensatory remedy, the State must also establish an effective mechanism by which to swiftly bring such treatment to an end.

49. However, in the event that the person has left the [detention] premises, it can no longer be said that a violation arising from detention conditions persists, since [the confinement in question] has been terminated. In addition, a person who regains their liberty no longer has a stake in improving detention conditions. Accordingly, in respect of foreigners who are released from removal centres, it is no longer meaningful to resort to preventive legal remedies to ensure that the conditions of detention are improved for the future; rather, the existence of compensatory remedies in respect of the damage suffered would be sufficient.

...

70. ... Although administrative detention [constitutes] an administrative measure in terms of its legal nature, the legislature has designated magistrate’s courts as the judicial authority with jurisdiction to examine the lawfulness of [such] detention ...; [this is] because of the nature of the measure itself, which deprives a foreigner of his or her liberty. In this respect, administrative courts do not have any jurisdiction to review the legality of an administrative detention decision.

71. While there is no impediment to bringing an action in the administrative courts seeking a full remedy (tam yargı davası) in respect of unlawful administrative detention, the jurisdiction of administrative courts to examine compensation claims is limited to determining whether any damage has occurred and, if so, the amount of compensation [to be paid]. Administrative courts therefore lack jurisdiction to examine the lawfulness of administrative detention decisions. This is because the legislature has given the authority to oversee the legality of administrative detention exclusively to the magistrate’s courts. Therefore, an action seeking a full remedy cannot be brought in the administrative courts until the objections against the [lawfulness of the] impugned measure have been reviewed by a magistrate’s courts.

72. On the other hand, if the magistrate’s courts [dismiss the objections] and rule that the administrative detention decision [in question] is lawful, [the remedy of] bringing an action seeking a full remedy in the administrative courts would become ineffective. This is because administrative courts lack jurisdiction to review the lawfulness of a measure of administrative detention. In such cases, an individual application can be lodged directly with the Constitutional Court. ...

73. However, if the magistrate’s courts decide that the administrative detention measure is unlawful, an action seeking a full remedy (in the form of full compensation for [any] damage ... arising from the unlawful deprivation of liberty) can be brought in the administrative courts. In this latter scenario, an individual application cannot be lodged with the Constitutional Court prior to seeking ... damages in the administrative courts. ...”

Case of Mr U.C.

64. In its judgment of 3 December 2013 (no. 2013/69), the Istanbul Anadolu 2nd Assize Court refused to allow the request for the extradition of Mr U.C., a Kazakhstani national whose extradition was requested on similar grounds as those presented in the present application. The relevant parts of the decision read as follows:

“... an extradition request was made [in order that] the accused [could] be brought to trial under the Criminal Code of Kazakhstan for the offence of forming and leading a terrorist organisation and participating in terrorism-related offences, as well as for the offence of engaging in mercenary activities in the military wing of the terrorist organisation [known as] the ‘Islamic Jihad Union’ ...

... In the assurances provided by the General Prosecutor’s Office of Kazakhstan, it was stated that in the event that the accused was extradited, he would enjoy the rights enshrined under the relevant United Nations Conventions ratified by Kazakhstan, and in particular, that he would not be subjected to torture, inhuman or degrading treatment or punishment. It was further provided that the relevant safeguards under the [European Convention on Human Rights] would be respected – including the principle of equality of the parties throughout the criminal proceedings. [They further stressed] that, although the death penalty exists under domestic law, the presidential decree on the moratorium on the death penalty remained in force. ...

... Taking into account the fact that the death penalty is still in force in the destination country – although it has been suspended by a moratorium – the guarantee given by the Prosecutor General’s Office of Kazakhstan is insufficient; [moreover], the extradition request has been conveyed without clear and sufficient evidence regarding the criminal allegations on account of which the applicant’s extradition is requested. ...

It is therefore decided to refuse the extradition request. ...”

65. There is no further information in the case file as to whether this judgment ever became final.

Relevant international material

Country information on Kazakhstan

66. Relevant international material concerning Kazakhstan for the period 2008-2014 is set out in Batyrkhairov v. Turkey (no. 69929/12, §§ 31-39, 5 June 2018).

67. The information set out below concerns further material obtained by the Court proprio motu corresponding to both the time when the applicant was extradited to Kazakhstan and the most recent developments in that country.

(a) United Nations Documents

68. The relevant parts of the report entitled “Compilation on Kazakhstan” prepared by the Office of the United Nations High Commissioner for Human Rights, in accordance with paragraph 15 (b) of the annex to Human Rights Council Resolution 5/1 (A/HRC/WG.6/34/KAZ/2, 26 August 2019), noted the following (footnotes omitted):

“...

3. Human rights and counter-terrorism

11. The Special Rapporteur on terrorism noted that despite the 2017 amendments to counter-terrorism and extremism legislation, much of the domestic law regulating a range of terrorism-related offences was broad and ambiguously worded. ...

12. The Special Rapporteur highlighted the profound lacunae with regard to terrorism trials, and also some extremism cases, whereby trials were covered by specific rules and specific practices relating to State security, as well as the use by the investigating authorities of psychological pressure on the accused with a view to obtaining a confession of guilt at the outset of the investigation. The Human Rights Committee recommended that Kazakhstan ensure that the rights to a fair trial and to access to justice were respected in all prosecutions for “extremism”.

...

B. Civil and political rights

1. Right to life, liberty and security of person

14. In 2016, the Human Rights Committee was concerned that the 2015 Criminal Code maintained the death penalty for 17 types of crime. It recommended that Kazakhstan retain its moratorium on the death penalty and review the list of capital crimes with a view to limiting them to the most serious crimes only. It should also give due consideration to the legal abolition of the death penalty.

...

16. While welcoming the abolition of the statute of limitations for the crime of torture and the elimination of amnesties for persons convicted of torture, some treaty bodies were concerned about the reported high rates and persistent allegations of torture and ill-treatment. ...”

69. Several stakeholders in the same Universal Periodic Review process stated, inter alia, the following (see the Summary of Stakeholders’ submissions on Kazakhstan, A/HRC/WG.6/34/KAZ/3, 26 August 2019, references omitted):

“...

13. Joint Submission 7 (JS7) noted that the 2014 Criminal Code provided for 17 elements of crimes where the death penalty was defined as a punishment. At the same time, Kazakhstan continued to adhere to the moratorium on the execution of death sentences. ...

14. Amnesty International (AI) noted that there was no independent mechanism to investigate torture allegations in the country, while impunity for torture and other ill‑treatment remained prevalent. The investigation of torture allegations failed to live up to the principles of independence, effectiveness, and promptness, and as a result, most of the cases were dismissed by the investigative authorities as lacking evidence or ungrounded. Torture victims often chose not to lodge complaints because they risked criminal prosecution for false reporting, and had no faith that their complaints would be investigated. Human Rights Watch (HRW) and JS10 made similar observations.

... ”

70. The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism highlighted, inter alia, the following findings in the report on her 10-17 May 2019 visit to Kazakhstan (A/HRC/43/46/Add.1, 22 January 2020):

“...

B. Treatment of individuals accused of acts of terrorism and extremism

...

1. Torture and ill-treatment

30. ...[The Rapporteur] has ongoing concerns about the implementation and rigour in practice of the prohibition on torture and other cruel, inhuman or degrading treatment for persons charged with or convicted of [terrorism and extremism] offences.

...

2. Detention and prison regimes

34. ... it is extremely concerning to the Special Rapporteur that the prison regime to which [individuals convicted of acts of terrorism] are subjected reduces privileges, such as family visits (which often take place only once a year), recreation and exercise periods, and follows from a categorization of “detrimental trajectory”, which is separate from their willingness to openly and assiduously take part in the deradicalization programmes. The Special Rapporteur also received credible information on the regular use of solitary confinement for prisoners charged with these offences. She notes that the medical, social and psychosocial effects of prolonged isolation can be severe, and that solitary confinement and similar forms of deprivation of human contact for a prolonged period of time amount to inhuman or degrading treatment (A/HRC/13/39/Add.5, para. 234).

...”

(b) Reports of Amnesty International on Kazakhstan

71. The chapter on Kazakhstan of the Amnesty International report entitled “The State of The World’s Human Rights in 2022”, released on 27 March 2023, reported, in so far as relevant, as follows:

“... Death penalty

Amendments to the Criminal Code which removed all references to the death penalty came into force on 8 January [2022], after being adopted the previous month.

On 8 June [2022], constitutional amendments entered into force that enshrined the abolition of the death penalty in the Constitution.

On 24 June [2022], Kazakhstan’s ratification of the Second Optional Protocol to the ICCPR, aiming at the abolition of the death penalty, entered into force. ...”

(c) Kazakhstan’s ratification of the Second Optional Protocol to the International Covenant on Civil and Political Rights (“ICCPR-OP2”)

72. Article 1 of the ICCPR-OP2 aiming at the abolition of the death penalty reads as follows:

“1. No one within the jurisdiction of a State Party to the present Protocol shall be executed.

2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.”

73. The depository notification regarding the ratification by Kazakhstan of the ICCPR-OP2 reads as follows:

“... The Protocol shall enter into force for Kazakhstan on 24 June 2022 ...”

International material regarding diplomatic assurances in extradition proceedings

(a) United Nations Documents

74. The UN High Commissioner for Refugees’ Note on Diplomatic Assurances and International Refugee Protection published on 10 August 2006 reads as follows (footnotes omitted):

“... 22. In general, assessing the suitability of diplomatic assurances is relatively straightforward where they are intended to ensure that the individual concerned will not be subjected to capital punishment or certain violations of fair trial rights as a consequence of extradition. ... While there is no effective remedy for the requested State or the surrendered person if the assurances are not observed, non-compliance can be readily identified and would need to be taken into account when evaluating the reliability of such assurances in any future cases.

23. The situation is different where the individual concerned risks being subjected to torture or other cruel, inhuman or degrading treatment in the receiving State upon removal. It has been noted that ‘unlike assurances on the use of the death penalty or trial by a military court, which are readily verifiable, assurances against torture and other abuse require constant vigilance by competent and independent personnel’.

...”

(b) Reports of Amnesty International

75. The relevant parts of the Amnesty International research paper entitled “Diplomatic assurances against torture – inherently wrong, inherently unreliable”, released on 28 April 2017, read as follows:

“The mere fact that States need to seek diplomatic assurances against torture and other cruel, inhuman or degrading treatment or punishment (other ill-treatment) is indicative of a risk of torture. ...

The reliance on diplomatic assurances by some States have had a ‘knock on’ effect on the use of diplomatic assurances by others, including extraditions or other transfers from Russia and Ukraine to Uzbekistan, Tajikistan or Kazakhstan and from Spain, France and Italy to Kazakhstan. The seeking and relying on diplomatic assurances have become a substitute for rigorous risk analysis and the obligation to suspend any transfer where a person is at such risk. ...”

Relevant international treaties

76. The bilateral Extradition Treaty between Türkiye and Kazakhstan was signed on 15 August 1995 and ratified on 4 August 1997. Its relevant provisions read as follows:

Section 2 – Extradition

Article 13

“Extraditable offences are as follows:

1. Offences punishable under the law of both Contracting Parties by imprisonment for at least one year or by a more severe penalty ...”

Article 14

“Extradition shall not be granted under the following cases:

...

2. If the enforcement of the request of extradition is contrary to the legislation of the requested Contracting Party. ...”

Article 29

“Except where this section otherwise provides, the procedure with regard to extradition ... shall be governed solely by the law of the requested Contracting Party. ...”

THE LAW

I. JOINDER OF THE APPLICATIONS

77. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. ALLEGED VIOLATION OF ARTICLES 2 AND 3 TAKEN ALONE OR IN CONJUNCTION WITH ARTICLE 13 OF THE CONVENTION ON ACCOUNT OF THE APPLICANT’s REMOVAL TO KAZAKHSTAN

78. The applicant complained that his threatened deportation or eventual extradition to Kazakhstan, and the associated risk of his being subjected to the death penalty and ill-treatment, gave rise to a breach of Articles 2 and 3 of the Convention. He further complained that he had not had an effective domestic remedy in respect of these complaints, as required by Article 13 of the Convention. The relevant provisions of the Convention read as follows:

Article 2

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ...”

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13

“Everyone 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.”

A. Admissibility

1. The parties’ submissions

79. The Government submitted that the applicant had not exhausted the available domestic remedies. They noted that the applications had been lodged with the Court in December 2015 and July 2017, respectively – that is, while the applicant’s individual applications were pending examination before the Constitutional Court.

80. The applicant contested the Government’s argument, maintaining that he had duly exhausted the domestic remedies. He further contended that he had made use of the remedy of an individual application prior to the lodging of his applications with the Court.

2. The Court’s assessment

(a) Exhaustion of domestic remedies

81. Firstly, the Court reiterates that applicants are required, in principle, to exhaust the domestic remedies available to them before applying to the Court (see Baumann v. France, no. 33592/96, § 47, ECHR 2001-V (extracts)). However, the last stage in the exhaustion of those remedies may be reached after the lodging of the application but before the Court is called upon to pronounce on the issue of admissibility (see Molla Sali v. Greece [GC], no. 20452/14, § 90, 19 December 2018).

82. The Court notes that in the present case the applicant lodged applications nos. 60811/15 and 54512/17 with it on 9 December 2015 and 28 July 2017, respectively. The decisions of the Constitutional Court with regard to the applicant’s individual applications were delivered, respectively, on 17 April 2019 and 29 December 2021 – that is, before the Court ruled on their admissibility. Accordingly, the Court considers that the Government’s objection as to non-exhaustion has lost its relevance (ibid.; see also Karoussiotis v. Portugal, no. 23205/08, § 57, ECHR 2011 (extracts)).

83. In this connection, the Court notes that on 26 April 2022 the parties informed the Court of the Constitutional Court’s decision of 29 December 2021, declaring inadmissible the applicant’s complaints that he would be in danger of death or ill-treatment if extradited to Kazakhstan because they had been lodged out of time. The Constitutional Court held that the thirty-day time-limit for lodging an individual application had started to run on 13 July 2017 – the date on which the applicant’s representative had become aware of the finalisation of the Assize Court’s judgment on the server of the National Judicial Network (see paragraph 27 above).

84. The Court notes that the Government did not raise any specific objection in respect of the admissibility of the applicant’s complaints under Articles 2 and 3 in conjunction with Article 13 of the Convention. More specifically, at no stage of the proceedings did they raise an objection of non-exhaustion on account of the applicant’s non-compliance with the thirty-day time-limit for applying to the Constitutional Court. This being so, the Court cannot examine this question of its own motion. The Government must raise an explicit plea of inadmissibility on the grounds of failure to exhaust domestic remedies (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 79, ECHR 2014 (extracts); Shlykov and Others v. Russia, nos. 78638/11 and 3 others, § 51, 19 January 2021; and Petrella v. Italy, no. 24340/07, § 32, 18 March 2021).

85. In any case, the Court reiterates that applicants are only obliged to exhaust those domestic remedies that are accessible, capable of providing redress in respect of their complaints and offer reasonable prospects of success (see Sejdovic v. Italy [GC], no. 56581/00, §§ 45-46, ECHR 2006-II). It further reiterates that in cases concerning expulsion or extradition it is a firmly embedded principle in the Court’s case-law under Article 13, taken together with Articles 2 and 3 of the Convention, that the notion of an effective remedy in such cases requires (i) independent and rigorous scrutiny of a claim that there exist substantial grounds for believing that there is a real risk of treatment contrary to Articles 2 and 3, and (ii) a remedy with automatic suspensive effect (see De Souza Ribeiro v. France [GC], no. 22689/07, § 82, ECHR 2012, and A.D. and Others v. Turkey, no. 22681/09, § 95, 22 July 2014). The same applies when considering the question of the effectiveness of remedies for the purposes of Article 35 § 1 of the Convention in asylum cases (see S.H. v. Malta, no. 37241/21, §§ 52-54, 20 December 2022).

86. In the present case, the Court notes that the remedy of an individual application to the Constitutional Court concerning a threatened expulsion or extradition does not have an automatic suspensive effect and therefore considers that such a remedy falls short of the second requirement of effectiveness. This consideration is not altered by the fact that it was possible to seek an interim measure from the Constitutional Court, as such a request does not itself have an automatic suspensive effect either (compare A.M. v. the Netherlands, no. 29094/09, §§ 59-71, 5 July 2016, and S.H. v. Malta, cited above, §§ 47-54).

87. Consequently, the Court dismisses the Government’s objection of non-exhaustion in respect of the applicant’s complaints under Articles 2 and 3, taken alone or in conjunction with Article 13 of the Convention.

(b) Victim status

88. The Court notes at the outset that the applicant’s complaints under Articles 2, 3 and 13 of the Convention arise out of three sets of proceedings which took place concurrently – namely, the two sets of deportation proceedings (see paragraphs 28-44 and 50-55 above) and the proceedings which resulted in his eventual extradition to Kazakhstan (see paragraphs 12‑27 and 57-58 above).

89. With respect to the initial deportation proceedings, the Court notes that at the time in question, their enforcement had been stayed by an interim measure issued by the Constitutional Court, which later found a violation of the applicant’s right to life and freedom from torture and ill-treatment under the Turkish Constitution. Subsequently, the judicial proceedings were reopened at the domestic level, and the first deportation order was annulled by the administrative courts (see paragraph 40 above). The Court reiterates that it has consistently held, in cases where applicants have faced expulsion or extradition, that an applicant cannot claim to be a “victim” of a measure that is not enforceable (see Kebe and Others v. Ukraine, no. 12552/12, § 86, 12 January 2017, and the case-law cited therein). It therefore holds that the applicant can no longer claim to be a “victim” within the meaning of Article 34 of the Convention with regard to the initial set of deportation proceedings. It follows that his complaints under this head are incompatible ratione personae with the provisions of the Convention and must therefore be rejected, in accordance with Article 35 § 4.

90. With respect to the applicant’s complaint under Article 2 taken alone, the Court further reiterates that the word “victim” in Article 34 of the Convention denotes a person directly affected by the act or omission in question. In other words, the person concerned must be directly affected or run the risk of being directly affected. It is not therefore possible to claim to be a “victim” of an act that has been deprived, temporarily or permanently, of any legal effect (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 92, ECHR 2007-I, and A.D. and Others v. Turkey, cited above, § 79).

91. In the instant case, the Court notes that Kazakhstan abolished the death penalty for all crimes by no later than 24 June 2022 (see paragraphs 71‑73 above). The Court therefore holds that the applicant no longer satisfies the criteria for being considered a “victim” within the meaning of Article 34 of the Convention in relation to his complaints under Article 2 of the Convention alone (see, mutatis mutandis, M.A. v. Cyprus, no. 41872/10, § 110, ECHR 2013 (extracts), and A.D. and Others v. Turkey, cited above, §§ 81-84). It follows that this part of the complaint – taken under Article 2 alone – is also incompatible ratione personae with the provisions of the Convention and must therefore be rejected, in accordance with Article 35 § 4.

(c) Conclusion on admissibility

92. The Government further submitted that the Court should declare the applicant’s complaints under Articles 2 and 3 in conjunction with Article 13 of the Convention inadmissible because they were manifestly ill-founded.

93. The Court notes that it has already examined similar objections raised by the Government in previous cases and rejected them (see, Mehmet Çiftci v. Turkey, no. 53208/19, § 26, 16 November 2021, Demirtaş and Yüksekdağ Şenoğlu v. Türkiye, nos. 10207/21 and 10209/21, §§ 77-78, 6 June 2023, Kural v. Türkiye, no. 84388/17, § 54, 19 March 2024, and Namık Yüksel v. Türkiye, no. 28791/10, § 35, 27 August 2024). It sees no reason to depart from those findings in the present case and therefore dismisses the Government’s objection. Accordingly, it considers that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible.

B. Merits

1. Preliminary considerations regarding the scope of the case

94. The Court reiterates its findings regarding the concurrent sets of deportation proceedings, as detailed in paragraphs 88-89 above.

95. As to the second set of deportation proceedings, the Court notes that that the applicant’s request that an interim measure be indicated was refused by the Constitutional Court, and his complaints in respect of his threatened deportation were eventually struck out of that court’s list of cases since, in the meantime, he had been extradited to Kazakhstan (see paragraph 55 above). The Court notes that the applicant was extradited on 16 October 2018 – that is, when his objections to the second set of deportation proceedings were still pending before the domestic courts. In the particular circumstances of the present case, the Court does not deem it necessary to consider this question separately from the angle of Articles 2, 3 and 13 of the Convention. Although the process to be followed in securing the applicant’s removal process encompassed concurrent deportation and extradition proceedings, his return to Kazakhstan ultimately occurred pursuant to the latter set of proceedings. Accordingly, the Court is of the view that it is sufficient to examine these complaints solely from the perspective of the extradition proceedings.

2. Article 13 in conjunction with Article 2 § 1 of the Convention

96. The applicant complained under Articles 2 § 1 and 13 of the Convention that there was a real risk that he would be subjected to capital punishment in the event of his extradition to Kazakhstan. He alleged that the assurances given by the Government of Kazakhstan were insufficient, that a moratorium did not necessarily mean that the death penalty would never be applied again and that he could in any event be sentenced to death as the charges against him could be reclassified. In this respect, he complained that, by relying solely on the vague and general assurances provided by the Kazakh authorities, the domestic authorities had failed to fulfil their obligation to conduct an adequate examination of his claims that he would be exposed to a real risk of death if removed to Kazakhstan.

97. In his observations, the applicant further submitted to the Court a translated copy of Article 162 § 3 of the Kazakhstan Criminal Code (as worded at the material time), which provided that participation in mercenary activities constituted a crime punishable by death.

98. The Government contested those allegations. In their submissions dated 20 July 2018 and 19 March 2019, they argued that diplomatic assurances had been obtained from the Government of Kazakhstan that the death penalty would not be imposed on the applicant. They further stated that, prior to the applicant’s extradition, the domestic courts had examined these assurances and found them to be sufficient and compatible with the provisions of the bilateral extradition treaty between Türkiye and Kazakhstan.

99. In the present case, the Court observes that the domestic authorities took into account the risks associated with the death penalty in force in Kazakhstan and explicitly requested their Kazakh counterparts to provide sufficient safeguards that the applicant would not be sentenced to the death penalty (see paragraphs 14 and 16 above). Consequently, the Prosecutor General’s Office of Kazakhstan provided assurances that it would not seek the death penalty for the applicant as the offences for which he was charged were only punishable by imprisonment. It further stressed that the moratorium on executions would remain in force until the abolition of capital punishment in Kazakhstan (see paragraphs 17 and 18 above). Those assurances were found to be adequate by the domestic courts – including the Constitutional Court, which dismissed the applicant’s request for a stay of the extradition proceedings, stating that the above-mentioned assurances were sufficient to ensure that the applicant would not be subjected to, inter alia, the death penalty (see paragraph 25 above).

100. At this point, the Court further notes that during the extradition proceedings the Prosecutor General’s Office of Kazakhstan informed the domestic authorities that the criminal charges against the applicant had been amended. Accordingly, he was no longer being charged with engaging in mercenary activities, but only with terrorism-related offences that were punishable by imprisonment and not by the death penalty (see paragraph 18 above). It also considers that the information obtained proprio motu from various governmental sources and reports issued by independent international human rights protection organisations confirm that, at the time in question, the scope of application of the death penalty had been limited to certain crimes and that Kazakhstan continued to adhere to its moratorium on the execution of death sentences (see paragraphs 68-69 above).

101. The Court observes that when assessing the applicant’s claims, the domestic courts took into account the relevant international material concerning Kazakhstan; however, they were not convinced that in the applicant’s case, the assurances provided by the Kazakh authorities fell short of offering adequate protection against being subjected to the death penalty. Given those circumstances, the Court is not persuaded that the domestic authorities failed to discharge their duty to adequately assess the claims that the applicant would face a real risk of being subjected to the death penalty in Kazakhstan and sees no reason to depart from the conclusion reached by the Turkish courts that the assurances in question, in their practical application, were capable of providing a sufficient guarantee that the applicant would not be subjected to the death penalty (see Gasayev v. Spain (dec.), no. 48514/06, 17 February 2009).

102. However, the Court observes that at the time of the applicant’s extradition to Kazakhstan, the death penalty was in force in respect of at least one of the crimes with which the applicant was initially charged – namely, mercenary activities (see paragraphs 13, 18 and 97 above). In the light of the foregoing, the Court cannot overlook the fact that the applicant had an “arguable claim” under Article 2 of the Convention, within the meaning of Article 13, prior to his extradition to Kazakhstan (see, mutatis mutandis, A.M. v. the Netherlands, cited above, §§ 61-71; A.D. and Others v. Turkey, cited above, §§ 85-94; and Sakkal and Fares v. Turkey (dec.), no. 52902/15, § 63, 7 June 2016). This is because the facts indicating that a violation of Article 13 had allegedly occurred had materialised by the time that the applicant was extradited. Accordingly, it cannot be said that the applicant can also no longer claim to be a victim of an alleged violation of Article 13 read in conjunction with Article 2 of the Convention.

103. The Court reiterates that – given the irreversible nature of the harm that might have occurred if the alleged risk of death had materialised and the importance that it attaches to Article 2 – the notion of an effective remedy under Article 13 requires (i) independent and rigorous scrutiny of the applicant’s claims and (ii) the possibility of suspending the implementation of the impugned measure (see also paragraph 85 above). It further reiterates that when assessing the likelihood of a person being subjected to the death penalty in the country of destination, the mere possibility of such a risk arising because of the provisions contained in the relevant domestic legislation cannot in itself involve a violation of Article 2 of the Convention (see Baysakov and Others v. Ukraine, no. 54131/08, §§ 79-82, 18 February 2010).

104. On the basis of the facts of this case and the considerations set out in paragraphs 99-101 above, the Court finds that the first prong of the effective remedy test (as defined in paragraph 103 above) has been satisfied. Regarding the second prong of the test, namely, the existence of a remedy with automatic suspensive effect, the Court reiterates that Article 13 does not oblige Contracting States to provide for a second level of appeal with the same effect (see A.M. v. the Netherlands, cited above, §70). It notes that according to Law no. 6706, any request by the Chief Public Prosecutor concerning the extradition of a person is subject to review before a judicial body with two levels of jurisdiction, this appeal having automatic suspensive effect. Inasmuch as Turkish domestic law precluded the applicant’s removal before the finalisation of the extradition proceedings (see paragraphs 60 above), the Court is satisfied that the applicant had at his disposal a remedy which satisfied the two requirements under Article 13 of the Convention (see, mutatis mutandis, Soering v. the United Kingdom, 7 July 1989, §§ 121-24, Series A no. 161).

105. The Court therefore concludes that there has been no violation of Article 13 in conjunction with Article 2 of the Convention.

3. Article 3 of the Convention

(a) The parties’ submissions

106. The applicant submitted that he was wanted by the Kazakh authorities on vaguely defined terrorism-related charges and alleged that, if extradited to Kazakhstan, he would be tortured by the authorities with the aim of extracting confessions. In this respect he referred to reports issued by various international organisations and governmental bodies concerning the human rights situation in Kazakhstan. He also stressed that his extradition had been requested together with that of three other Kazakh nationals – two of whom were the applicants in the Court’s judgments of Amerkhanov v. Turkey (no. 16026/12, 5 June 2018) and Batyrkhairov (cited above), whose forcible removal to Kazakhstan had resulted in the finding of violations under Article 3 of the Convention. He further noted that in the case of another Kazakhstani national facing charges identical to those of the applicant, whose extradition had also been requested (namely, Mr U.C. – see paragraph 64 above) – the domestic courts had refused that request, even though the same assurances had been given by the Kazakh authorities. Accordingly, the applicant asserted that the domestic courts had failed to conduct a rigorous examination of the assurances given in his case and to provide a clear basis for considering those assurances sufficient to eliminate the risk of torture and ill-treatment in Kazakhstan.

107. In his observations of 27 September 2018, the applicant also submitted to the Court a copy of the Red Notice issued by the Kazakh authorities via Interpol, which reads as follows:

“... being influenced ... by the international terrorist organization ... ‘Islamic Jihad Union’ (as part of Al Qaida), [the requested fugitive] and other persons ... established a terrorist organization with the purpose of carrying out acts of terrorism on the territory of Kazakhstan. [The requested fugitive] left Kazakhstan in 2008 ... for participation in the armed actions against US Forces and Coalition Forces of NATO in Afghanistan. He had military trainings in camps in Pakistan [operated by] the ‘Islamic Jihad Union’ ...”

108. In his additional submission of 26 April 2022, the applicant alleged that, following his extradition, he had been subjected to various forms of ill‑treatment in prison. He further contended that the Turkish authorities had failed to take any steps to verify their Kazakh counterparts’ compliance with the assurances obtained prior to his extradition.

109. The Government argued that the applicant had not provided the domestic courts with sufficient evidence and information in support of his allegations and had therefore failed to substantiate his claim that he would run a real risk of ill-treatment if extradited. They also maintained that their Kazakh counterparts had provided sufficient diplomatic assurances that the applicant’s rights under Article 3 of the Convention would not be violated if he were extradited to Kazakhstan. They lastly noted that the extradition proceedings had been conducted in accordance with the bilateral extradition treaty between Türkiye and Kazakhstan.

(b) The Court’s assessment

(i) General principles

110. The relevant general principles concerning the application of Article 3 within the context of extradition and expulsion proceedings have been summarised by the Court in the judgments F.G. v. Sweden ([GC], no. 43611/11, ECHR 2016, §§ 110-27), J.K. and Others v. Sweden ([GC], no. 59166/12, §§ 77-105, 23 August 2016) and, more recently, Khasanov and Rakhmanov v. Russia ([GC], nos. 28492/15 and 49975/15, §§ 93-116, 29 April 2022).

111. The Court reiterates that extradition 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 in question would, if extradited, face a real risk of being subjected to treatment contrary to Article 3 of the Convention in the requesting country. The establishment of that responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention (see, among many other authorities, Oshlakov v. Russia, no. 56662/09, § 79, 3 April 2014). Nonetheless, in so far as any liability under the Convention is or may be incurred, it is incurred by the extraditing Contracting State by reason of its having taken action that has the direct consequence of exposing an individual to proscribed ill‑treatment (see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 212, ECHR 2012).

112. In determining whether it has been shown that the applicant runs a real risk, if extradited, of suffering treatment proscribed by Article 3, the Court will assess the issue in the light of all the material placed before it and, if necessary, material obtained proprio motu (see Tershiyev v. Azerbaijan, no. 10226/13, § 48, 31 July 2014, and López Elorza v. Spain, no. 30614/15, § 106, 12 December 2017). Since the nature of the Contracting States’ responsibility under Article 3 in cases of this kind lies in the act of exposing an individual to a risk of ill-treatment, the existence of that risk must be assessed primarily with reference to those facts that were known or ought to have been known to the Contracting State at the time of the extradition (see Kislov v. Russia, no. 3598/10, § 79, 9 July 2019, and the case-law cited therein).

113. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of extraditing the applicant to the requesting country, bearing in mind the general situation there and his or her personal circumstances (see Sanchez-Sanchez v. the United Kingdom [GC], no. 22854/20, § 85, 3 November 2022, and the cases cited therein). Furthermore, where an applicant alleges that he or she is a member of a group systematically exposed to ill-treatment, the Court considers that the protection of Article 3 of the Convention enters into play when the applicant establishes, where necessary on the basis of the available sources, that there are serious reasons to believe in the existence of the practice in question and in his or her membership of the group concerned (see Khasanov and Rakhmanov, cited above, §§ 96-99).

114. With regard to the distribution of the burden of proof, the Court reiterates that the assessment of the existence of a real risk must necessarily be a rigorous one. It is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that, if the measure complained of were to be implemented, he or she would be exposed to a real risk of being subjected to treatment contrary to Article 3. Where such evidence has been adduced, it is for the Government to dispel any doubts raised by it (see W.A. and Others v. Italy, no. 18787/17, § 87, 16 November 2023, with further references therein).

115. In cases where such substantial grounds have been shown, the Court has then examined whether any assurances obtained in the particular case were sufficient to remove any real risk of ill-treatment. However, diplomatic assurances are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment, and there is an obligation to examine their quality to see whether they provide, in their practical application, that the applicant has protection against any such risk (see Othman (Abu Qatada) v. the United Kingdom, no. 8139/09, § 192, ECHR 2012 (extracts), and Yefimova v. Russia, no. 39786/09, §§ 202-03, 19 February 2013). In doing so, the Court takes into account the criteria established in Othman (Abu Qatada) (cited above, § 189) and assesses the reliability of the assurances in the light of the receiving State’s practices.

116. Lastly, the Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Nonetheless, where allegations are made under Article 3 of the Convention the Court must apply particularly thorough scrutiny, even if certain domestic proceedings and investigations have already taken place (see Azimov v. Russia, no. 67474/11, § 115, 18 April 2013). In this respect, the Court emphasises that the prohibition under Article 3 is absolute, no derogation from it being permissible under Article 15 § 2 – even in the event of a public emergency threatening the life of the nation or in the most difficult circumstances, such as the fight against terrorism and organised crime or an influx of migrants and asylum-seekers, irrespective of the conduct or the nature of the alleged offence committed by the person concerned (see Ramirez Sanchez v. France [GC], no. 59450/00, § 116, ECHR 2006-IX, and Z.A. and Others v. Russia [GC], nos. 61411/15 and 3 others, §§ 187-88, 21 November 2019).

(ii) Application of the principles in the present case

117. When considering the applicant’s extradition in the light of the principles set out above, the Court emphasises at the outset that reference to a general problem concerning the observance of human rights in a particular country cannot, by itself, serve as a basis for refusing to extradite a particular person. Its previous findings in cases concerning extradition to Kazakhstan demonstrate that, although international reports continued to express serious concerns about the human rights situation in Kazakhstan, there was no indication that this was sufficiently serious to justify a total ban on extradition to that country (see Oshlakov, cited above, § 85 and the case-law cited therein).

118. The Court notes, however, that the applicant argued before the domestic authorities that he would be exposed to a real risk of torture if removed to Kazakhstan. While his individual application to the Constitutional Court was declared inadmissible on the ground that it had been lodged outside the prescribed time limit (see paragraph 27 above), the Assize Court and the Court of Cassation had occasion to consider the merits of the applicant’s claim that he faced a real risk of torture and other forms of ill-treatment in Kazakhstan in the light of the criminal charges against him, in particular his alleged membership of a terrorist organisation (see paragraphs 16-23 above). Moreover, it is uncontested between the parties that the applicant was charged with terrorist offences and crimes related to religious extremism on the basis of his alleged involvement in the establishment of an armed jihadist organisation. In this respect, the Court reiterates that the Turkish authorities were already informed of the nature of the criminal charges against the applicant as early as the issuance of the above-mentioned Red Notice in 2012, (see paragraphs 13, 18 and 107 above).

119. At this point, the Court notes that various reports issued by international organisations in respect of Kazakhstan – obtained by the Court proprio motu and relevant for the time when the applicant’s claims were assessed by the domestic authorities – referred to allegations of torture and other forms of ill-treatment in prisons and detention centres. More importantly, the reports stated that these allegations gave particular cause for concern for persons charged with terrorism and extremism-related offences (see paragraphs 68-70 above).

120. In the light of the foregoing considerations, the Court finds that the domestic authorities were aware (or ought to have been aware) of facts which indicated that the applicant could be exposed to a real risk of ill-treatment if removed to Kazakhstan and which were also sufficiently brought to their attention by the applicant (see paragraphs 16, 20 and 24 above). It was therefore for them to address the applicants’ arguments and to carefully assess the risk of ill-treatment in order to dispel any doubts about it (see Babajanov v. Turkey, no. 49867/08, § 45, 10 May 2016 and the cases cited therein).

121. The Court notes that, in authorising the applicant’s extradition, the domestic courts appear to have relied primarily on the assurances given by the Kazakh authorities, rather than undertaking of their own motion a full assessment of the applicant’s claims under Article 3 of the Convention. While the Court acknowledges the thorough scrutiny undertaken by the domestic courts of the assurances given by Kazakhstan in relation to the non‑imposition of the death penalty (see paragraphs 103-05 above), and takes note of Kazakhstan’s expressed willingness to cooperate with efforts to verify compliance with those assurances; however, it remains to be considered whether the risk of torture and/or ill-treatment to which the applicant would be exposed following his extradition has been sufficiently mitigated by those assurances (see Turgunov v. Russia, no. 15590/14, § 55, 22 October 2015). This requires a careful examination of the adequacy of the assurances given in the light of the specific allegations made by the applicant and of the information relating to the country of origin provided by reliable and objective sources.

122. In Othman (Abu Qatada) (cited above), the Court set out an extensive list of criteria to be used in assessing the quality of assurances given, in the light of the particular circumstances of the case in question, including, inter alia, (i) who has given the assurances and whether that person/authority has the power to bind the central government of the receiving State, (ii) an assessment of whether they are couched in general or specific terms, and whether they have been given by a Contracting State, (iii) whether the requesting State’s compliance with those assurances can be objectively checked through diplomatic or other monitoring mechanisms – for instance, by providing the applicant with unfettered access to his or her lawyer, and (iv) whether there is an effective system of protection against torture in the receiving State – including whether it is willing to cooperate with international monitoring mechanisms (ibid., § 189).

123. As for the assurances against torture and ill-treatment in the present case, the Court observes that they were given by the First Deputy Prosecutor General of Kazakhstan, who declared such forms of treatment to be illegal in that country. These assurances also stated that the applicant would not be subjected to torture or inhuman and degrading treatment and that he would enjoy all procedural safeguards provided by the United Nations International Covenant on Civil and Political Rights (see paragraph 17 above). Lastly, guarantees were given that the Turkish authorities would have unhindered access to the applicant’s place of detention in order to monitor the conditions therein and their compliance with international human rights standards (see paragraph 18 above).

124. Firstly, the Court recognises that, in extradition matters, diplomatic notes are a standard means for the requesting State to provide any assurances that the requested State considers necessary for its consent to extradition. It also recognises that, in international relations, diplomatic notes carry a presumption of good faith (see Rrapo v. Albania, no. 58555/10, §§ 72-74, 25 September 2012). It observes, however, that in the instant case, it has not been demonstrated that the First Deputy Prosecutor General, or the institution that he represents, was empowered to issue assurances on behalf of that State, or that such assurances were formally binding on the Kazakh authorities (compare Soldatenko v. Ukraine, no. 2440/07, § 73, 23 October 2008; Baysakov, cited above, § 51 and Kordian v. Turkey (dec.), no. 6575/06, 4 July 2006).

125. Secondly, the Court notes that the assurances were framed in rather general terms and lacked precision. In the light of serious concerns about the level of protection from torture and ill-treatment in Kazakhstan (in particular for persons accused of terrorism and extremism-related offences) and the demonstrably low rate of investigation into allegations of torture (see paragraphs 59-75 above), the Court considers that the reliability of these assurances warranted further examination by the domestic authorities. It also reiterates that the mere reference to domestic laws and international treaties guaranteeing respect for fundamental rights cannot, in itself, provide a sufficient guarantee against the risk of ill-treatment – particularly where, as in the present case, sources with first-hand knowledge of the situation prevailing in the country of destination have documented practices employed or tolerated by the authorities that manifestly contravene the principles of the Convention (see Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 128, ECHR 2012, and Klein v. Russia, no. 24268/08, § 55, 1 April 2010). Furthermore, the domestic authorities, as well as the Government in their submissions before the Court, used summary and non-specific reasoning in an attempt to dispel the allegations of a risk of ill-treatment on account of the above considerations. Hence, the Court is doubtful of their practical value in safeguarding the applicant against the alleged risks (see Egamberdiyev v. Russia, no. 34742/13, § 49, 26 June 2014).

126. Thirdly, the Court considers relevant the fact that the assurances were given by a State that is neither a member of the Council of Europe nor a Contracting Party to the Convention – a factor to be weighed in the assessment of their practical efficacy, including the receiving State’s record in abiding by similar assurances (compare Turgunov, cited above, § 56; Gasayev v. Spain, cited above; and Babar Ahmad and Others v. the United Kingdom (dec.) nos. 24027/07, 11949/08 and 36742/08, §§ 104-10, 6 July 2010). In this regard, the information in the case file does not contain any element demonstrating that the domestic authorities actually sought specific and credible assurances (beyond citing general international instruments) or adequately assessed whether, in the light of the applicant’s individual situation and the practices in Kazakhstan at the material time, the assurances could be genuinely relied upon as an equivalent to the system required of the Contracting States (compare M.I. v. Bosnia and Herzegovina (dec.), no. 47679/17, §§ 45-46, 29 January 2019).

127. Fourthly, the Court considers that the alleged developments subsequent to the applicant’s extradition (see paragraph 58 above) cast further doubt on the practical effectiveness of the assurances provided by the Kazakh authorities. These allegations raise serious doubts as to whether the assurances, as applied in the present case, provided any guarantee that the applicant would not be at risk of ill-treatment (compare, for example, Labsi v. Slovakia, no. 33809/08, §§ 129-31, 15 May 2012).

128. In the light of the foregoing, the Court cannot accept the Government’s assertion that the assurances given by the Kazakh authorities were sufficient to rule out the risk of his being subjected to ill-treatment in Kazakhstan (compare and contrast, mutatis mutandis, Sanchez-Sanchez, cited above, §§ 93-94).

129. The Court further reiterates that parallel asylum proceedings do not in themselves exclude the possibility that a person might be extradited (see, mutatis mutandis, Shiksaitov v. Slovakia, nos. 56751/16 and 33762/17, § 68, 10 December 2020). In the instant case, however, the applicant’s extradition to Kazakhstan took place at a time when not only was his second asylum application under consideration by the domestic authorities (see paragraph 29 above), but also when an interim measure issued by the Constitutional Court regarding the initial deportation proceedings against the applicant remained in effect (see paragraphs 35 and 39 above). The Court considers that these considerations constitute additional elements in the instant case that cast doubt on whether the domestic authorities had duly assessed – before his extradition – the applicant’s claims in a manner compliant with the standards set out under Article 3 of the Convention.

130. Lastly, the Court notes that the Government, despite having been requested to do so, did not furnish sufficient information to assess the exact relevance of the proceedings concerning Mr U.C. for the purposes of the present case (see paragraphs 64-65 above). According to the limited information available in the case file, the Istanbul Anadolu 2nd Assize Court refused to authorise Mr U.C.’s extradition on the ground that the assurances given by the Kazakh authorities did not constitute an adequate guarantee that the death penalty would not be imposed on Mr U.C. However, the adequacy (or otherwise) of those assurances with regard to protection against torture or ill-treatment was not addressed in that judgment. Consequently, in the absence of further information as to the final outcome of Mr U.C.’s case and his whereabouts, the Court sees no reason to examine this specific issue further.

131. The above considerations are sufficient to conclude that, in the particular circumstances of the present case, the domestic authorities failed to carry out an adequate examination of the applicant’s claims and that his forcible return to Kazakhstan on 16 October 2018 exposed him to a real risk of treatment contrary to Article 3 of the Convention (see Labsi v. Slovakia, cited above, §§ 121-32; Savriddin Dzhurayev v. Russia, no. 71386/10, §§ 166-76, ECHR 2013 (extracts); Kasymakhunov v. Russia, no. 29604/12, §§ 122-28, 14 November 2013; and Mukhitdinov v. Russia, no. 20999/14, §§ 44-56, 21 May 2015. Also compare Amerkhanov, cited above, §§ 75-89; Batyrkhairov, cited above, §§ 45-52; and A.M.A. v. the Netherlands, no. 23048/19, §§ 70-80, 24 October 2023).

132. There has accordingly been a violation of Article 3 of the Convention.

4. Article 13 in conjunction with Article 3 of the Convention

133. Having regard to the reasoning that 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 considers it unnecessary to rule separately on the merits of the applicant’s complaints under this head (for a similar approach, see the above-cited cases of Babajanov, § 52, and Batyrkhairov, § 53).

ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF THE CONDITIONS OF DETENTION AT THE KUMKAPI FOREIGNERS’ REMOVAL CENTRE

134. The applicant complained that the material conditions of his detention at the Kumkapı Removal Centre (between 4 and 19 November 2015 and subsequently between 31 December 2015 and 12 July 2016) had amounted to a violation of Article 3 of the Convention.

135. Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Admissibility

136. The Government reiterated their objection referred to in paragraph 79 above that this part of the application should be rejected for failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. Subsequently, in their submissions of 26 February 2021, they drew the Court’s attention to the decision of the Constitutional Court declaring the applicant’s complaints regarding the allegedly poor conditions of detention inadmissible on the ground that the applicant had failed to exhaust the available administrative remedies (see paragraphs 34 and 39 above).

137. The applicant contested the Government’s argument by asserting that there were no effective remedies available to address his complaints regarding the conditions of detention.

138. The Court reiterates that, in the case of Z.K. and Others v. Turkey ((dec.), no. 60831/15, §§ 41-49, 7 November 2017), it recognised that an individual application lodged with the Constitutional Court had the capacity to provide an effective remedy for complaints under Article 3 concerning the conditions of detention in a foreigners’ removal centre, and held that that remedy therefore must be exhausted before an application is lodged with the Court.

139. At the same time, the Court reiterates that only effective remedies are required to be exhausted (see Neshkov and Others v. Bulgaria, nos. 36925/10 and 5 others, §§ 186-90, 27 January 2015; and İlerde and Others v. Türkiye, nos. 35614/19 and 10 others, § 150, 5 December 2023). With respect to complaints under Article 3 regarding inhuman or degrading conditions of detention, two types of relief are possible: (a) a preventive remedy capable of providing an improvement in the material conditions of detention, and (b) a compensatory remedy offering financial compensation and, in some cases, the possibility of a reduction in sentence as adequate forms of redress for the suffering on account of inadequate conditions of detention (see, Ulemek v. Croatia, no. 21613/16, § 74, 31 October 2019). If an applicant is being 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 v. Russia, no. 5993/08, § 40, 28 November 2013 and G.B. and Others v. Turkey, no. 4633/15, § 129, 17 October 2019).

140. In the instant case, the Court notes that the applicant was detained in the Kumkapı Removal Centre for two separate periods – that is, between 4 and 19 November 2015 and between 31 December 2015 and 12 July 2016 (see paragraphs 28, 31 and 37 above). It further observes that the applicant lodged his application with the Constitutional Court in respect of these complaints on 18 March 2016 – that is, while he was being held in administrative detention. It cannot therefore be doubted that the applicant sought immediate relief (as opposed to merely an award of compensation) from the allegedly unacceptable conditions in which he was being held. Notwithstanding the applicant’s application to the Constitutional Court, he remained detained at the Kumkapı Removal Centre for a further period of four months. Although he was ultimately transferred from the Kumkapı Removal Centre on 12 July 2016, the Constitutional Court did not render its decision on the matter until nearly three years later – on 17 April 2019. Therefore, given the circumstances of the present case, the Court cannot but find that the remedy of lodging an individual application with the Constitutional Court did not provide a preventive remedy capable of providing immediate relief from the unacceptable conditions of detention (compare G.B. and Others, cited above, § 130, and Kargakis v. Greece, no. 27025/13, §§ 81-84, 14 January 2021). Accordingly, the Court rejects the Government’s argument that the available domestic remedies had not been exhausted.

141. The Court concludes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, nor inadmissible on any other grounds. It must therefore be declared admissible.

Merits

142. In his application form, the applicant reiterated the complaints set out in paragraph 34 above. Namely, he argued that during his detention in the Kumkapı Removal Centre, the conditions of his detention had been the same as those found to have violated Article 3 in the Court’s prior judgments of Amerkhanov and Batyrkhairov (both cited above). The applicant further asserted that the Government had failed to produce any substantial statement or document attesting to any improvement in the conditions of detention at the time of his confinement in the Kumkapı Removal Centre.

143. The Government contested those arguments. They submitted that the applicant had been provided with hot water for twenty-four hours a day, access to the open air every day and three meals per day. In support of their submissions, they provided several undated photographs of the Kumkapı Removal Centre, accompanied by captions asserting that the material conditions of his detention had complied with the standards required under the Convention.

144. The Court reiterates its finding of a violation of Article 3 of the Convention in G.B. and Others (cited above, §§ 102-13) and previously in Amerkhanov and Batyrkhairov (both cited above, §§ 85-89 and §§ 80-84 respectively) owing to the substandard conditions of detention at the Kumkapı Removal Centre, in particular the documented overcrowding and the lack of access of detainees to outdoor exercise. Although the relevant period in the case of G.B. and Others (cited above) precedes that of the applicant by approximately one year in the instant case, the Court notes that the Government have not presented any evidence capable of justifying a departure from its earlier conclusions. This is because, despite being expressly requested to do so by the Court, they did not provide any specific information in respect of the material conditions of the applicant’s detention in the Kumkapı Removal Centre (such as logs recording the number of detainees held there at the time in question), and merely submitted several photographs of the premises, without indicating when those photographs had been taken (ibid., § 108). The Court is therefore led to conclude that the conditions of the applicant’s detention – coupled with the possible anxiety caused by the uncertainty as to when the detention would end – caused him distress that exceeded the unavoidable level of suffering inherent in detention and attained the threshold of degrading treatment proscribed by Article 3 (ibid., and the cases cited in § 102 thereof).

145. Lastly, the Court acknowledges the significant challenges facing Türkiye posed by the ongoing influx of migrants and asylum seekers. It also recognises the burdens and pressures that this situation imposes. However, having regard to the absolute character of Article 3, such difficulties cannot release a State from its obligations under that provision (see, for a similar assessment, Khlaifia and Others v. Italy [GC], no. 16483/12, § 184, 15 December 2016, and Boudraa v. Turkey, no. 1009/16, § 30, 28 November 2017).

146. Accordingly, the Court finds that there has been a violation of Article 3 of the Convention on account of the inadequate material conditions in which the applicant was detained at the Kumkapı Removal Centre.

ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

147. The applicant complained under Article 5 § 1 that his detention pending removal had been unlawful. He further complained under Article 5 § 2 that he had not been duly informed of the reasons for his being deprived of his liberty. He submitted that, under Article 5 § 4, he had not had any effective remedies by which to challenge the lawfulness of his detention during this period. Lastly, he maintained under Article 5 § 5 of the Convention that he had no right to compensation under domestic law for the violation of his rights under Article 5.

148. The relevant paragraphs of Article 5 of the Convention read as follows:

“1. Everyone 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:

...

(f) the 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.

2. Everyone 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.

...

4. Everyone 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.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

Preliminary considerations regarding the scope and admissibility of the applicant’s complaints under Article 5 of the Convention

149. The Court notes at the outset that it is important to delineate the applicant’s complaints concerning his deprivation of liberty. The period in question runs from 2 November 2015 to 16 October 2018, apart from a brief period (27 February to 10 April 2018) during which he was at liberty (see paragraphs 47 and 50 above). The applicant’s detention stemmed from deportation, extradition and criminal proceedings concerning him, which overlapped at certain points.

150. Firstly, the applicant complained, inter alia, that his deprivation of liberty pending his extradition had been contrary to Article 5 of the Convention. The Court notes that the duration of the applicant’s detention pending extradition (2 December 2016 to 1 February 2018) was entirely absorbed by his pre-trial detention during the criminal proceedings initiated against him in Türkiye (see paragraphs 45-49 above). However, before the Court, the applicant did not raise any complaints under Article 5 § 1 (c) of the Convention with respect to his detention pending trial during the criminal proceedings concerning his alleged membership of an armed terrorist organization. Therefore, this part of the application is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 and 4 of the Convention.

151. Secondly, as regards the applicant’s administrative detention during the second set of deportation proceedings that began on 10 April 2018 after a period of liberty (see paragraphs 50-55 and 149 above), the applicant did not lodge new and distinct complaints under Article 5 of the Convention concerning this period. Rather, he merely informed the Court of the outcome of the domestic proceedings, without clarifying or elaborating upon his initial complaints or observations. Accordingly, the Court cannot examine any new matters raised after the communication of the application to the Government, as long as they do not constitute a mere elaboration upon the applicant’s original complaints to the Court (see Rafig Aliyev v. Azerbaijan, no. 45875/06, §§ 69-70, 6 December 2011 (with further references)). Therefore, the Court discerns no reason to examine this aspect of the applicant’s situation from the perspective of Article 5 of the Convention (compare Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 108-09, 20 March 2018, and Fu Quan, s.r.o. v. the Czech Republic [GC], no. 24827/14, §§ 137-48, 1 June 2023).

152. For the foregoing reasons, the Court will confine its examination of the applicant’s complaints under Article 5 to his detention pending expulsion during the first set of deportation proceedings, which lasted from 2 November 2015 to 4 November 2016.

Admissibility

153. The Government maintained that the applicant had failed to exhaust the domestic remedies available to him. In this connection, they furnished the Court with the two decisions of the Constitutional Court issued on 17 and 24 April 2019. These decisions declared inadmissible the applicant’s complaints concerning the alleged unlawfulness of his detention on the grounds that the applicant had failed to bring an action in the administrative courts seeking a full remedy, which in theory could have provided an effective remedy if the individual had already been released (see paragraphs 39 and 41 above).

154. The applicant contested the Government’s arguments. He asserted that, following the change of the relevant jurisprudence of the Constitutional Court in the case of B.T., the Turkish domestic law no longer provided effective remedies in respect of the breach of Article 5 of the Convention caused by the impugned measures. He further informed the Court that, subsequent to the Constitutional Court’s inadmissibility decision of 24 April 2019, he had nevertheless instituted proceedings before the İzmir 1st Administrative Court seeking compensation for the damage sustained owing to his unlawful detention. However, the case had been dismissed as having been lodged out of time. He stated that a subsequent appeal to the Regional Administrative Court against this decision had also been unsuccessful.

155. The Court reiterates the principles developed in its case-law regarding the rule of exhaustion of domestic remedies (see Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-71, 25 March 2014, and Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, §§ 220, 222 and 223, ECHR 2014 (extracts). The Court further reiterates that where the person concerned is still in custody, the only remedy that may be considered sufficient and adequate is one that is capable of leading to a binding decision ordering his or her release (see Gavril Yosifov v. Bulgaria, no. 74012/01, § 40, 6 November 2008, and Varnas v. Lithuania, no. 42615/06, § 86, 9 July 2013). However, if the impugned detention has come to an end, an action for damages, which is capable of leading to a declaration that the detention in question was unlawful or in breach of Article 5 § 1 and to a consequent award of compensation, may constitute an effective remedy in respect of complaints under this provision (ibid., § 87; see also Sakkal and Fares, cited above, § 49, and the cases cited therein).

156. In the present case, the Court notes that the applicant was still in detention when he lodged his individual application with the Constitutional Court on 18 March 2016. It further notes that the Constitutional Court declared the applicant’s complaints under Article 5 of the Convention inadmissible for his failure to bring an action in the administrative courts seeking a full remedy. In reaching this conclusion, it referred to the earlier case which it had established in the B.T. judgment. However the Court notes that, in B.T., the Constitutional Court had held that bringing an action for damages in the administrative courts constituted an effective remedy which had to be exhausted only if the detention in question had previously been declared unlawful by a magistrate’s court. It also specified that, if a court had rejected an individual’s objections to his or her detention, that individual could lodge an individual application with the Constitutional Court directly after the delivery of these decisions (see paragraphs 62-63 above). In the present case, the Court notes that, throughout the first set of deportation proceedings, the administrative detention of the applicant was never found to be unlawful by the magistrate’s courts, despite the objections to his detention which he had lodged with those courts (see paragraphs 30, 32 and 36 above). He was released on 4 November 2016 – that is, only after the expiry of the statutory maximum period of one year allowed for a person’s detention pending deportation under domestic law (see paragraph 37 above). Therefore, it cannot be said that the applicant was required to have made use of the compensatory remedy in the administrative courts, since it did not constitute an effective remedy in the specific circumstances of the applicant’s case.

157. The Court accordingly dismisses the Government’s plea of non‑exhaustion. It further notes that these complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds. They must therefore be declared admissible.

Merits

Article 5 § 1 of the Convention

158. The applicant claimed that he had been unlawfully detained for the maximum permissible period allowed under domestic law for deportation proceedings. He further argued that there was no legal basis for his continued detention, since the interim measure issued by the Constitutional Court on 18 March 2016 had suspended the deportation proceedings (see paragraph 34 above), thereby rendering his removal from Türkiye unrealistic.

159. The Government argued that the applicant had been apprehended in possession of a forged passport and had subsequently been placed in administrative detention on the basis of the deportation order issued against him. They argued that the applicant’s detention had therefore been in accordance with Article 5 § 1 (f) of the Convention.

160. The Court reiterates that Article 5 § 1 (f) of the Convention does not require that the detention of a person against whom an expulsion order has been requested should be reasonably considered necessary (for example, to prevent his committing an offence or absconding). In this connection, Article 5 § 1 (f) provides a different level of protection from Article 5 § 1 (c): all that is required under sub-paragraph (f) is that “action is being taken with a view to deportation or extradition” (see Čonka v. Belgium, no. 51564/99, § 38, ECHR 2002-I, and Chahal v. the United Kingdom, 15 November 1996, § 112, Reports of Judgments and Decisions 1996-V). To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate and the length of the detention should not exceed that reasonably required for the purpose pursued (see Yoh-Ekale Mwanje v. Belgium, no. 10486/10, §§ 117‑19, 20 December 2011, and the references cited therein). In this respect, any deprivation of liberty under Article 5 § 1 (f) will be justified only for as long as extradition proceedings are in progress; moreover, if those proceedings are not executed with due diligence, the detention will cease to be permissible (see Khlaifia and Others, cited above, § 90).

161. The Court further reiterates that the fact that expulsion proceedings have been provisionally suspended as a result of the application of an interim measure does not in itself render the detention of the person concerned unlawful, (i) provided that the authorities still envisage expulsion at a later stage (so that “action is being taken” – even though the proceedings are suspended), and (ii) on condition that the detention will not be unreasonably prolonged (see M.D. and Others v. Russia, nos. 71321/17 and 8 others, § 125, 14 September 2021, with further references). The Court has also stated that the existing possibility to apply for judicial review of an applicant’s situation is an important factor to be taken into account when reviewing the lawfulness of detention in cases where an interim measure has been applied (see Ahmed v. the United Kingdom, no. 59727/13, § 50, 2 March 2017).

162. In the present case, it is not disputed by the parties that the applicant’s detention pending the first deportation proceedings lasted from 2 November 2015 to 4 November 2016 (see paragraph 152 above). His administrative detention was finally terminated on the ground that his deportation had not been carried out within the maximum period allowed under domestic law for detention pending expulsion. At this juncture, the Court reiterates that its task is not to assess whether the length of the deportation proceedings in question was reasonable overall (as it would do in cases concerning the excessive length of proceedings under Article 6), but to determine – irrespective of the overall length of the proceedings – whether the length of the detention exceeded what was reasonably necessary for the purpose pursued (see Khokhlov v. Cyprus, no. 53114/20, § 89, 13 June 2023).

163. The Court notes that the applicant was first apprehended by the police within the context of a security operation conducted against ISIS and was found to be in possession of a forged passport. Consequently, the Istanbul Governor’s Office ordered his deportation under Law no. 6458 for using forged documents and posing a threat to public order. It also ordered the administrative detention of the applicant pending the deportation proceedings. The information in the case file reflects the fact that the applicant was duly informed of these decisions and had the opportunity to contest before the magistrate’s courts on numerous occasions the alleged unlawfulness of his detention. In rejecting these claims, the magistrate’s courts referred to the fact that a valid deportation order had been issued against the applicant and to the risk of his absconding owing to the criminal proceedings pending against him on suspicion of his being affiliated with terrorist organisations. The Court confirms that concurrent extradition and criminal proceedings were pending at the time of the applicant’s administrative detention pending deportation and sees no reason to question the findings of the domestic courts in this regard. It further finds that, judging by the elements in the case file, the applicant’s detention had a lawful basis and was in compliance with domestic law. Given the complexity of the applicant’s situation and the proceedings pending against him at the material time, the Court sees no indication that the authorities acted in bad faith or that the deportation proceedings were not pursued with the requisite diligence required under 5 § 1 (f) of the Convention (see, mutatis mutandis, Liu v. Russia, no. 42086/05, §§ 79-83, 6 December 2007, and A.H. and J.K. v. Cyprus, nos. 41903/10 and 41911/10, §§ 182-91, 21 July 2015).

164. Finally, with respect to the conditions of detention and their relevance for the assessment of the lawfulness of detention under Article 5 of the Convention, the Court reiterates that a deprivation of liberty may be lawful in terms of domestic law but still be considered arbitrary if, among other factors, the place and conditions of detention are inappropriate (see Saadi v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008). In the present case, the Court observes that the applicant’s complaints under Article 3 concerning the conditions of detention are limited to the period spent at the Kumkapı Removal Centre (see paragraph 134 above). However, the assessment of the lawfulness of the applicant’s deprivation of liberty under this head covers the entire period of his administrative detention, including the not insignificant time spent in other removal centres until the applicant’s eventual release on 4 November 2016 (see paragraphs 31, 36 and 37 above). With respect to the conditions of detention at the Kumkapı Removal Centre, having already found a violation of Article 3 (see paragraph 146 above), the Court does not consider it necessary to further examine the conditions of detention in the context of Article 5 § 1 (f) (see, for a comparable approach, Horshill v. Greece, no. 70427/11, § 65, 1 August 2013; R.T. v. Greece, no. 5124/11, § 85, 11 February 2016; and Ha.A. v. Greece, no. 58387/11, § 41, 21 April 2016). As to the conditions of detention in other centers, the applicant has not raised any separate complaints, and those conditions are therefore not to be examined by the Court.

165. The Court therefore concludes that there has been no violation of Article 5 § 1 (f) of the Convention on the present facts.

Article 5 § 4 of the Convention

166. The applicant submitted that the examination of his requests for release had been based on stereotyped reasoning and that he had not been able to obtain an effective judicial review of his detention. He also argued that those proceedings had not complied with the requirement of speediness under Article 5 § 4 of the Convention.

167. The Government contested those arguments.

168. The Court reiterates that Article 5 § 4 of the Convention – in guaranteeing to detained persons the right to institute proceedings to challenge the lawfulness of their detention – also proclaims their right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of that detention and ordering its termination if it proves to be unlawful (see Baranowski v. Poland, no. 28358/95, § 68, ECHR 2000-III). The question of whether the right to a speedy decision has been respected must be determined in the light of the circumstances of each case – including the complexity of the proceedings, whether the domestic authorities and the applicant extended the length of the proceedings by their conduct, and what was at stake for the latter (see Mooren v. Germany [GC], no. 11364/03, § 106, 9 July 2009 and the cases cited therein).

169. Moreover, Article 5 § 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of the lawfulness of detention. However, where domestic law provides for the possibility of lodging an appeal, the appellate body must also comply with the requirements of Article 5 § 4 – for instance in respect of the speediness of a review conducted during appeal proceedings (see, among many other authorities, Stevan Petrović v. Serbia, nos. 6097/16 and 28999/19, § 177, 20 April 2021). At the same time, the standard of “speediness” is less stringent when it comes to proceedings before a court of appeal (see Lebedev v. Russia, no. 4493/04, § 96, 25 October 2007).

170. The Court also reiterates that it has found Article 5 § 4 of the Convention to be applicable to proceedings before domestic constitutional courts and has held within other contexts that the remedy of lodging an individual application with the Turkish Constitutional Court was, in principle, capable of providing an adequate remedy within the meaning of Article 5 § 4 of the Convention (see, for instance, Mehmet Hasan Altan v. Turkey, no. 13237/17, §§ 159-67, 20 March 2018).

171. Turning to the facts before it, the Court notes that the applicant challenged the lawfulness of his administrative detention on five occasions before magistrate’s courts, and also lodged an individual application with the Constitutional Court in this regard. Although his requests were ultimately rejected, the Court notes that the magistrate’s courts examined the alleged unlawfulness of the detention without significant delay and provided sufficient reasons in their decisions (see paragraphs 30, 32 and 36 above). The applicant was therefore, in principle, able to avail himself of a remedy by which he could obtain a decision on the lawfulness of his detention (compare G.B. and Others, cited above, § 165).

172. However, the Court also notes that the applicant lodged separate applications with the Constitutional Court on 18 March 2016 and 30 November 2016 (the first being while he was still detained at the Kumkapı Removal Centre), and complained, inter alia, of the failure of the magistrate’s courts to review the lawfulness issue in an effective manner (see paragraphs 34 and 38 above). Nevertheless, the Court is struck by the fact that it took more than three years for the Constitutional Court to decide on these applications, rendering its judgments on 17 April and 24 April 2018 – some six months after the applicant had already been extradited. In this connection, the Court notes that there is nothing in the material before it to suggest that the applicant or his lawyer contributed in any way to the length of the proceedings before the Constitutional Court.

173. Finally, the Court notes that the Constitutional Court, after more than three years, departed from its earlier jurisprudence (namely, the case of B.T., as discussed in paragraph 156 above). Regarding the applicant’s claims concerning the alleged unlawfulness of his detention, the Government have failed to provide any argument or evidence to justify why, in the present case, the applicant was required to make use of the compensatory remedy before the administrative courts before submitting his individual application to the Constitutional Court.

174. The foregoing considerations are sufficient for the Court to conclude that there has been a violation of the applicant’s rights under Article 5 § 4 of the Convention on account of the failure of the Constitutional Court to conduct a review of the lawfulness of his detention in a speedy and effective manner (see Aden Ahmed v. Malta, no. 55352/12, § 115, 23 July 2013 and the cases cited therein). However, the conclusion under this head should be seen in the light of the particular circumstances of the present case and should not be taken to cast doubt on the general effectiveness of the individual application mechanism before the Constitutional Court (see also G.B. and Others, cited above, §188).

Remainder of the applicant’s complaints under Article 5 of the Convention

175. Relying on Article 5 §§ 2 and 5 of the Convention, the applicant complained that he had not been duly informed of the reasons for his deprivation of liberty and that he had had no right to compensation under domestic law in respect of the violation of his rights under Article 5.

176. In view of its findings under Article 5 § 4 of the Convention above, the Court does not consider it necessary to examine the applicants’ remaining complaints under that provision (for a similar approach, see G.B. and Others, cited above, § 190).

APPLICATION OF ARTICLE 41 OF THE CONVENTION

177. Article 41 of the Convention provides:

“If 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.”

Damage

178. The applicant did not claim any compensation for pecuniary damage. He claimed, in total, 20,000 euros (EUR) in respect of non-pecuniary damage.

179. The Government contested these claims.

180. In view of the violations found in respect of the applicant’s complaints under Articles 3 and 5 § 4 of the Convention, and ruling on an equitable basis, the Court awards the applicant EUR 8,450 in respect of non‑pecuniary damage, plus any tax that may be chargeable.

Costs and expenses

181. The applicant also claimed EUR 10,000 in respect of lawyer’s fees and EUR 622 for other costs and expenses incurred before the Court, such as travel expenses, stationery, photocopying, translation and postage. In that connection, they submitted a timesheet showing that their legal representatives had carried out 118 hours of legal work at a rate of EUR 100 per hour, and a legal services agreement signed with their representatives. He further submitted itemised invoices and bills for the remaining costs and expenses.

182. The Government contested these claims as excessive, noting that only costs actually incurred could be reimbursed.

183. Regard being had to the documents in its possession and the criteria established in the Court’s case-law (see Yüksel Yalçınkaya v. Türkiye [GC], no. 15669/20, § 429, 26 September 2023), the Court considers it reasonable to award the sum of EUR 4,250 covering costs and expenses under all heads.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Decides to join the applications;
Declares the complaints under Articles 2 and 3 in conjunction with Article 13 concerning the applicant’s extradition to Kazakhstan on 16 October 2018, the complaint under Article 3 in so far as it relates to the detention conditions at the Kumkapı Removal Centre and the complaints under Article 5 §§ 1 and 4 concerning the alleged unlawfulness of the applicant’s detention and the alleged lack of a remedy whereby he could challenge the lawfulness of his detention admissible;
Declares the remainder of the applications inadmissible;
Holds that there has been no violation of Article 13, in conjunction with Article 2 of the Convention;
Holds that there has been a violation of Article 3 on account of the applicant’s extradition to Kazakhstan on 16 October 2018;
Holds that there is no need to examine the merits of the complaint under Article 13, in conjunction with Article 3 of the Convention;
Holds that there has been a violation of Article 3 on account of the conditions of the applicant’s detention at the Kumkapı Removal Centre;
Holds that there has been no violation of Article 5 § 1 of the Convention;
Holds that there has been a violation of Article 5 § 4 of the Convention;
Holds that there is no need to examine the complaints under Article 5 §§ 2 and 5 of the Convention;
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, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 8,450 (eight thousand four hundred fifty euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 4,250 (four thousand two hundred fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b) that 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;

Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 14 January 2025, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Hasan Bakırcı Arnfinn Bårdsen
Registrar President

APPENDIX

List of cases:

No.

Application no.

Case name

Lodged on

Applicant

Represented by

1.

60811/15

Kunshugarov v. Türkiye

09/12/2015

Yeldos KUNSHUGAROV

Abdulhalim YILMAZ

2.

54512/17

Kunshugarov v. Türkiye

28/07/2017

Yeldos KUNSHUGAROV

Abdulhalim YILMAZ

[1] Equivalent to approximately 155 EUR at the material time.