The Court found in particular that Article 5 was applicable to the applicants’ case as their presence in
the transit zone had not been voluntary; they had been left to their own devices for the entire
period of their stay, which had lasted between five and 19 months depending on the applicant;
there had been no realistic prospect of them being able to leave the zone; and the authorities had
not adhered to the domestic legislation on the reception of asylum-seekers.
Given the absence of a legal basis for their being confined to the transit zone, a situation made
worse by them being impeded in accessing the asylum system, the Court concluded that there had
been a violation of the applicants’ rights protected by Article 5 § 1.
The conditions the applicants had lived in had also been appalling: they had had to sleep in the
transit zone, a busy and constantly lit area, with no access to washing or cooking facilities. There had
thus also been a breach of Article 3 as their treatment had been degrading.
The Court further notes that the move in international law towards adopting alternative measures to the administrative detention of migrants appears to concern not only children, but also their parents.
violation of the applicants’ rights under Article 5 § 4 of the Convention on account of the failure of both the Istanbul Magistrates’ Court and the Constitutional Court to conduct a review of the lawfulness of their detention in an effective and speedy manner. The Court notes, once again, that the review mechanism set out under Law no. 6458 appears to be wholly ineffective in a case, such as the present one, where the detention of a minor in the immigration context is not based on an administrative decision.
