Press Release No: Individual Application 63/20
Press Release concerning the Judgment Finding a Violation of the Right to an Effective Remedy due to the Failure to Consider the Alleged Detention in Inappropriate Conditions
On 22 July 2020, the First Section of the Constitutional Court found a violation of the right to an effective remedy, safeguarded by Article 40 of the Constitution, in conjunction with the prohibition of ill-treatment, safeguarded by Article 17 thereof, in the individual application lodged by N.K. (no. 2017/21761).
The applicant was placed in administrative detention pending her deportation due to prostitution, which was ordered by the Governor’s Office. The incumbent administrative court (“the court”) annulled the deportation order. Besides, upon the applicant’s request, the magistrate judge ordered the discontinuation of her administrative detention, and she was released. She then brought an action for compensation, maintaining that she had been unjustly placed in administrative detention for 62 days under inappropriate conditions. However, her action for compensation was dismissed. The applicant then appealed the dismissal decision, and the regional administrative court awarded partial compensation to her.
The Applicant’s Allegations
The applicant maintained that the right to an effective remedy, taken in conjunction with the prohibition of ill-treatment, had been violated for not being awarded compensation despite being detained in inappropriate conditions pending the execution of her deportation order, which was found unlawful through a court decision.
The Court’s Assessment
The effective legal mechanism available to those released from the foreigners’ removal centres to challenge their detention conditions there is the remedy of compensation.
In this sense, in an administrative action for compensation, the administrative court is entitled to review whether the detention conditions have been compatible with the relevant national and international law, as well as to award compensation in cases where these conditions are found unlawful.
In the present case, although the applicant clearly complained of her detention conditions, neither the inferior court nor the appellate authority considered these allegations. Nor did they provide any explanations as to why they had failed to consider them.
The court and the regional administrative court confined their examinations in the present case to the applicant’s allegedly unjust detention and failed to conduct an inquiry into the alleged violation of the prohibition of ill-treatment due to the impugned detention conditions. As the decision issued in the applicant’s case did not include a judicial conclusion which should have been reached at the end of such a throughout assessment, it appears that no examination was conducted as to the question whether the applicant’s detention conditions were compatible with human dignity.
Consequently, the Court has found a violation of the right to an effective remedy.
This press release prepared by the General Secretariat intends to inform the public and has no binding effect.