Citizen of Kazakhstan to be paid damages due to maltreatment at removal center

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The Constitutional Court has ruled that handcuffing and chaining Y.K., a citizen of Kazakhstan, at a removal center was in violation of the prohibition of torture and ruled that the applicant shall be paid 30,000 Turkish lira (4,034 USD) for damages.

Y.K., who came to Turkey in 2011, was returned to his country on October 16, 2018, after a legal process that had started upon a request by Kazakhstan.

Y.K. was detained in İstanbul on November 2, 2015, and sent to İstanbul Removal Center on November 4, 2015, with orders of extradition and administrative detention.

Y.K. was not allowed to meet their attorney

On November 5, 2015, Y.K. filed a lawsuit for the cancellation of the decision of extradition. After that, Y.K. was transferred to Aşkale Removal Center in the eastern Erzurum province. On November 26, Y.K.'s attorney Abdulhalim Yılmaz was not allowed in the removal center for a meeting with Y.K.

In the two minutes he wrote on the same day, Yılmaz stated that he was not able to obtain information about the administrative decisions and lawsuits regarding his client because he was not allowed to meet with them.

Maltreatment

The attorney then went to Aşkale Chief Public Prosecutor's Office and filed a criminal complaint. In his petition of complaint, Yılmaz stated that Y.K.'s communication with their family and attorney was prevented, that Y.K. was made to meet with officials from the Republic of Kazakhstan and subjected to threats and pressure from them during the meeting, and that Y.K. was held in a cold room in the center's basement while chained from their hands and feet.

In the same petition, Yılmaz requested the Chief Public Prosecutor's Office to investigate the allegations of torture and maltreatment, to stop the maltreatment, to take photographs of the room where Y.K. was held, to keep the security camera recordings, to obtain a medical report on the psychological and physical condition of the applicant and to open a criminal investigation against those responsible.

Statement without at attorney

As part of the investigation opened by the Aşkale Chief Public Prosecutor's Office, a statement was taken from Y.K. without attorney Yılmaz being present. In the statement, Y.K. stated that they were not subjected to maltreatment, chained from their feet and hands and were pressured to go back to Kazakhstan.

On December 21, the prosecutor's office decided that there was no need for prosecution.

Appealing the prosecutor's decision, attorney Yılmaz stated that Y.K.'s statement was taken without the presence of an attorney and that no witnesses were heard although there were hundreds of people staying at the removal center.

Yılmaz also attached a letter from Y.K. dated December 28, 2015. In the letter, Y.K. said that they were put in a cell without heating in the basement of the detention center while being chained and handcuffed. On the third day, an official from the Consulate of Kazakhstan came and pressured him to return to the country, according to the letter.

He also said that he gave a false statement because of being tortured by the director of the detention center.

Reviewing the appeal, Erzurum 2nd Penal Court of Peace ruled for the extension of the investigation on February 10, 2016, and sent the file back to Aşkale Chief Public Prosecutor's Office.

After the court's decision, Y.K.'s statement was taken again. Y.K. said that they were subjected to torture.

Threat of extradition

Y.K. said in the second statement that they stayed in the cell for one week and three more days after the meeting with the consulate official, who he said told him that if they went to Kazakhstan by their own will, they would serve 12 years in prison and if they were extradited, they would serve 25 years.

"After 10 days, I was removed from the detention room to be taken to the prosecutor's office. The manager [of the removal center] told me that 'They will take you to the prosecutor's office now. If you say something other than what I told you, I would put you in the detention room again and then extradite you.' When I went to the prosecutor's office, I gave a false statement not to be extradited," Y.K. said and added that there was no beating or psychological pressure against him at the detention center.

Non-prosecution

The prosecutor's office decided not to prosecute the incident on June 14, 2016, after a medical report from the Haseki Training and Research Hospital that there were no traumatic and psychopathological findings on Y.K.

Erzurum 2nd Penal Court of Peace rejected attorney Yılmaz's appeal on June 22, 2016.

Application to the Constitutional Court

After the court's rejection, Yılmaz applied to the Constitutional Court. Examining the case on June 2, 2020, the Constitutional Court stated that removal centers should work with a "human-focused" approach.

While there was no physical evidence about the existence of detention rooms where people are chained, there was "reasonable suspicion" about that, considering the statements by witnesses, the court noted.

It also stated that there was "evidence beyond reasonable suspicion" that Y.K. was held in a single room without heating for 10 days and the prohibition of torture was violated.

The Constitutional Court ruled that the prohibition of torture was violated and Y.K. shall be paid 30,000 lira for damages. (HA/VK)