Press Release No: Individual Application 53/20
Press Release concerning the Judgment Finding a Violation of the Prohibition of Torture for Being Placed in a Single Room at the Foreigners’ Removal Centre for a Prolonged Period of Time
On 2 June 2020, the Second Section of the Constitutional Court found violations of both substantive and procedural aspects of the prohibition of torture safeguarded by Article 17 of the Constitution in the individual application lodged by Y.K. (no. 2016/14347).
The applicant, a Kazakh national, was taken into custody in İstanbul on suspicion of possessing a false identity card. The applicant, in respect of whom deportation as well as administrative detention orders had been issued, was transferred to the Foreigners’ Removal Centre (“the Centre”).
The applicant filed a criminal complaint with the chief public prosecutor’s office (“prosecutor’s office”), claiming that he had been tortured and ill-treated in the Centre. Thereupon, the prosecutor’s office issued a decision of non-prosecution. The incumbent magistrate judge, having examined the applicant’s challenge, extended the scope of the investigation and sent the file to the prosecutor’s office again.
The prosecutor’s office once again issued a decision of non-prosecution. The subsequent challenge of the applicant was again examined by the magistrate judge who ultimately rejected it with no right of appeal.
The Applicant’s Allegations
The applicant claimed that during his time at the Centre, he had been handcuffed by his hands and feet, he had been held in a cell without heating for ten days and his contact with the outside world had been prevented, and that no effective investigation had been conducted into his complaints, which had been in breach of the prohibition of torture.
The Court’s Assessment
The Foreigners’ Removal Centres are institutions adopting a human-oriented approach in ensuring the shelter and control of the foreigners to be deported. In that vein, the Centres are required to provide services based on the protection of the right to life of the individuals held there as well as the strengthening of them both socially and psychologically.
In the present case, regard being had to the witness statements, there is a reasonable suspicion that those who were held in isolation rooms (ilgi odası) at the Centres, which are designed similar to the observation rooms in penitentiary institutions, were handcuffed by their hands and feet and that the applicant might also have been subjected to such a practice; however, no concrete evidence has been found in this regard.
The applicant’s allegation that he was held in a single room without heating has been examined separately. Although there is no evidence supporting the alleged coldness of the said room, it has been concluded that there is evidence beyond reasonable doubt that the applicant was held in that room for ten days. The examination of the alleged violation of the substantive aspect of the prohibition of torture has been carried out solely on the basis of this material fact.
There was neither a written order nor a report regarding the applicant's placement in an isolation room. There was no disciplinary investigation launched against the applicant for attempted escape, involvement in such attempt or any other improper act after he had been taken to the said room. Nor is there any allegation or evidence indicating that the applicant was taken into custody due to a criminal investigation/prosecution. Similarly, there is no evidence pointing to the risk that the applicant might have harmed himself, other persons staying at the Centre or the property there. On the contrary, all witness statements indicated that the applicant had looked calm and harmonious during his stay at the Centre. Hence, the administration of the institution failed to make an explanation as to why the applicant had been placed in an isolation room.
It has been understood that the applicant was held in an isolation room for ten days, that he was unable to contact with other persons staying at the Centre or his family or legal representative, that he was provided with no means of communication such as radio, television or telephone, that he even ate his meals in the room, and that there is no evidence indicating that he was allowed to get outdoors.
It has been concluded that the impugned interference, pursuing no legitimate aim and contravening the working principles of the Centres, may be regarded as torture given its nature and duration.
Consequently, the Court has found a violation of the substantive aspect of the prohibition of torture safeguarded by Article 17 of the Constitution.
In the light of this finding, it has been concluded that the decisions of non-prosecution and the decisions dismissing the applicant’s challenges against these decisions were not based on a comprehensive, objective and impartial assessment of all findings obtained during the investigation process.
At the first stage of the criminal investigation launched into the applicant’s allegations of torture and ill-treatment, no crime-scene investigation was conducted, and the investigation authority did not obtain and secure the CCTV camera footage by itself, but rather confined itself to the video footage submitted by the officials at the Centre who were complained of by the applicant. No medical report on the applicant’s state of health was obtained, but instead the observations of the public prosecutor taking the applicant’s statement were put into record. The public officials, who were complained about, were not identified so as to take their defence submissions.
Since the signs of alleged ill-treatment on the applicant’s body, the CCTV camera footages as well as the statements of the non-party witnesses could not be secured immediately, it became impossible to have access to them after a certain period of time had elapsed. Therefore, it cannot be said that a rigorous investigation capable of clarifying the applicant’s allegations that his hands and feet had been handcuffed was conducted.
Consequently, the Court has also found a violation of the procedural aspect of the prohibition of torture safeguarded by Article 17 of the Constitution.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.