SECOND SECTION

DECISION

Application no . 20616/13 Ethem SAKÄ°N against Turkey

The European Court of Human Rights ( Second Section ), sitting on 28 June 2016 as a Chamber composed of:

Julia Laffranque , President, Işıl Karakaş , Nebojša Vučinić , Paul Lemmens , Valeriu Griţco , Ksenija Turković , Stéphanie Mourou-Vikström , judges, and Stanley Naismith , Section Registrar ,

Having regard to the above application lodged on 4 March 2013 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Ethem Sakin , is a Turkish national, who was born in 1961 and is currently serving a prison sentence in the Bolu T ‑ Type Closed Prison . He is represented before the Court by Mr C. Yetkiner , a lawyer practising in Istanbul .

2. The Turkish Government (“the Government”) are represented by their Agent .

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. The applicant ’ s detention at the Bilecik M-Type Closed Prison

4. On 4 January 2010 the applicant was taken into pre-trial detention at the Bilecik M-Type Closed Prison (“ Bilecik Prison”), pending the criminal proceedings against him on a charge of murder . He was initially placed in a smoking cell ( koğuş , a multi-occupancy living unit ) reserved for inmates in pre-trial detention only.

5. On an unspecified date in 2011 the Bilecik Assize Court found the applicant guilty on three counts of murder. The applicant appealed against that judgment. There is no further information in the case file as regards the outcome of the appeal proceedings.

6. According to the information and documents provided by the Bilecik Prison administration, the applicant changed cells a total of seven times during his detention at Bilecik Prison between 4 January 2010 and 26 December 2012. The changes were all effected at the applicant ’ s request. It appears that two of those changes were made to accommodate his wish to stay in a non-smoking cell, and the remaining changes were made following conflicts with his cell-mates. It further appears that while some of the cells he stayed in were allocated exclusively to inmates in pre-trial detention, others accommodated both those in pre-trial detention and convicts.

7. On 20 March 2012 the applicant sent a letter to the General Directorate of Prisons and Detention Centres of the Ministry of Justice, requesting his transfer to another prison. He argued that he was not safe in the Bilecik Prison, where he had many enemies. He also mentioned in the same letter that as a non-smoker he was sharing a cell with smokers, and that there were also convicts in his cell.

8. By a letter dated 9 May 2012 the General Directorate of Prisons and Detention Centres informed the Bilecek public prosecutor ’ s office that the applicant ’ s allegations regarding his safety in prison had been found to be groundless. The applicant could, therefore, continue to serve his sentence in conditions “suitable to his status”.

9. On 1 and 8 January 2013 the applicant sent letters to the Ministry of Justice and the Human Rights Inquiry Committee of the Grand National Assembly of Turkey (“the Human Rights Inquiry Committee”), respectively, alleging that the warden and some other officers at the Bilecik Prison had applied psychological pressure on him. The applicant also complained in his letters about the problem of accommodating smokers with non-smokers and detainees with convicts in the same cells .

10. On 11 February 2013 the Human Rights Inquiry Committee informed the applicant that his letter had been communicated to the Bilecik office of the General Directorate of Prisons and Detention Centres.

2. The applicant ’ s detention at the Çanakkale E-Type Closed Prison

11. In the meantime, on 26 December 2012 the applicant had been transferred to the Çanakkale E-Type Closed Prison (“ Çanakkale Prison”) on disciplinary grounds. The applicant claimed that at the Çanakkale Prison he had been placed in a cell measuring 4.5 by 4.5 metres, with eleven other inmates. According to the information provided by the Government, however, the cell where the applicant stayed measured 5.7 by 5 metres and accommodated nine other inmates.

12. On 30 May 2013 the applicant sent a letter to the General Directorate of Prisons and Detention Centres to complain about the cramped living conditions at the Çanakkale Prison.

13. In its reply dated 18 June 2013, the General Directorate of Prisons and Detention Centres informed the applicant that the Çanakkale Prison had a maximum capacity of 704 prisoners, but that it had accommodated only 647 prisoners at the material time. The General Directorate added that two hundred and seven new penal facilities would be set up in the next five years, following which prisoners would be accommodated in more favourable conditions.

14. Upon receiving the information provided by the General Directorate of Prisons and Detention Centres , on 27 June 2013 the applicant wrote a letter of reply, claiming that the figures provided did not reflect the real capacity of the prison, but the overinflated capacity that resulted from the use of triple bunk beds.

15. In the meantime , on 11 and 24 June 2013 the applicant had sent similar complaint letters to the Çanakkale Prison Monitoring Board, which in its response of 9 July 2013 informed the applicant that his complaints would be taken into consideration at their next visit to the prison in question.

16. It appears that on 30 July 2013 the Çanakkale Prison Monitoring Board visited the Çanakkale Prison and met with the applicant. In its letter dated 3 September 2013, the Monitoring Board informed the applicant that his complaints had been taken into consideration and that they would be communicated to the Ministry of Justice in its quarterly interim report.

17. In the meantime, on 19 August 2013 the applicant had been transferred to the Kocaeli T-Type Closed Prison (no.1) (“ Kocaeli Prison”) following his request to be closer to his family.

18. On 23 August 2013 the applicant lodged an individual application with the Turkish Constitutional Court (“the Constitutional Court”), by post, to complain about the overcrowding problem at the Çanakkale Prison.

19. By a letter dated 29 August 2013, the Registry of the Constitutional Court informed the applicant that his application could not be registered because he had failed to comply with the procedural rules on the submission of applications set out in section 47(1) of Law no. 6216 on the Establishment and Rules of Procedure of the Constitutional Court of Turkey and section 63 of the Internal Regulations of the Constitutional Court ( Anayasa Mahkemesi İç t ü z üğü ), which stipulated that individual applications had to be lodged directly with the Constitutional Court in person, or through local courts or representations abroad. Applications submitted by post would not, therefore, be accepted.

20. On an unspecified date the applicant was transferred to the Bolu T ‑ Type Closed Prison .

B. Relevant domestic law and practice

1. Law no. 4675 on Enforcement Judges

21. Section 4 of Law no. 4675 on Enforcement Judges lays down the duties of Enforcement Judges as follows:

“1. To examine and resolve complaints concerning t he admission of convicts and detainees to penal institutions and detention centres, [their] placement, accommodation, heating and clothing, feeding, hygiene, [their] medical examination and treatment for the protection of their physical and mental health, [their] relations with the outside world, ... and other such activities.

2. To examine and resolve complaints concerning the execution of the convicts ’ sentences, ... [their] transfer, ...

...

4. To examine the reports prepared and communicated by the monitoring boards of penal institutions and detention centres on their observations on the penal institutions and detention centres falling under their jurisdiction, and to rule on any complaints.”

22. Section 5 of Law no. 4675, governing the application procedure to the enforcement judge, provides as follows:

“ ...

Complaint[s] may be lodged directly with the enforcement judge by way of a petition, or through the intermediary of the office of the public prosecutor or the administration of the penal institution [or] detention centre. Applications lodged other than with the enforcement judge shall be transmitted to the latter at once and within three days at the most. Complaints made orally shall be recorded and a copy [of the record] shall be given to the applicant.

...”

23. In accordance with section 6(5) and (6), an objection may be lodged against a decision of an enforcement judge with the local assize court.

2. Relevant decisions of the Constitutional Court

24. The Government submitted fourteen examples of decisions delivered by the Constitutional Court concerning individual applications lodged by prisoners from different prisons. The decision delivered by the Constitutional Court in application no. 2013/2025 is particularly noteworthy on account of its pertinence to the present application. The application in question was lodged on 25 September 2012, only two days after the entry into force of the new remedy before the Constitutional Court. The applicant prisoner complained, inter alia , of the unlawful practices of the prison administration, including placing him in accommodation with smokers despite the fact that he suffered from asthma. The Court observes that the prisoner ’ s complaints regarding the unlawful practices of the prison administration, including placing him in accommodation with smokers, were declared inadmissible by the Constitutional Court for non-exhaustion of the available remedies, on account of the prisoner ’ s failure to bring his complaints before an enforcement judge.

COMPLAINTS

25. Without relying on any particular provisions of the Convention, the applicant complained of inadequate detention conditions at the Bilecik and Çanakkale Prisons. In particular, he complained of the lack of segregation of smokers from non-smokers and detainees from convicts at the Bilecik Prison, and of overcrowding at the Çanakkale Prison.

26. In a letter submitted on 13 September 2013, the applicant complained about the stringent procedural rules for lodging an individual applicatio n with the Constitutional Court. He claimed that the requirement to submit applications in person, without the possibility of sending them by post, within a very limited thirty -day time-limit , had prevented him from lodging an application with the Constitutional Court, as he had no lawyer or family outside t he prison to assist him with the application procedure. He also complain ed that the application fee requested by the Constitutional Court was very high and that he did not have the means to pay for it.

THE LAW

A. The parties ’ arguments

27. The applicant complained of inadequate conditions of detention at the Bilecik and Çanakkale Prisons and of his inability to bring those complaints before the Constitutional Court .

28. The Government contended, by way of a preliminary objection, that the applicant had failed to exhaust the available domestic remedies in relation to his complaints. They submitted in this connection that under sections 4 and 6 of Law no. 4675 on Enforcement Judges, the applicant could raise any complaints regarding his conditions of detention in prison with an enforcement judge, and could also appeal against the enforcement judge ’ s decisions.

29. The Government added that it was also open to the applicant to lodge an individual application with the Constitutional Court for his grievances, which he had attempted to do in relation to the alleged overcrowding at the Çanakkale Prison. However, his application had not been accepted by the Constitutional Court on account of his failure to comply with the relevant procedural rules for lodging an application. Moreover, although the applicant had had the possibility of submitting a fresh application to the Constitutional Court following the refusal of his initial application on procedural grounds, he had not done so.

B. The Court ’ s assessment

30. The Court considers at the outset that the applicant ’ s complaints regarding the material conditions of his detention at the Bilecik and Çanakkale Prisons should be examined from the standpoint of Article 3 alone, which provides:

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

31. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring their case against the State before an international body to first use the remedies provided by the national legal system. The Court refers in this connection to the general principles developed in its case-law regarding the rule of exhaustion of domestic remedies (see, for instance, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014; Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, §§ 220-226, ECHR 2014 (extracts); and Sargsyan v. Azerbaijan [GC], no. 40167/06, §§ 115-116, ECHR 2015); see also Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, §§ 93 and 94, 10 January 2012 for the application of this rule in the context of cases concerning conditions of detention).

32 . Turning to the facts before it, the Court notes that the applicant did not bring his complaints regarding the conditions of detention at the Bilecik and Çanakkale Prisons before an enforcement judge who, according to the Government, had the primary competence to examine all complaints regarding, inter alia , prisoners ’ conditions of accommodation.

33 . The Court indeed notes that according to section 4 (1) of Law no. 4675, enforcement judges are given the authority to examine complaints from convicts and detainees concerning various aspects of their detention, including their placement, accommodation and other such matters, and the power to issue legally binding decisions in relation to those complaints (see paragraph 21 above). The Court also notes from section 5 that convicts and detainees can lodge the complaints themselves, either directly with the enforcement judge, or via the office of the public prosecutor or the administration of the penal institution or detention centre , as appropriate in their circumstances (see paragraph 22 above).

34 . The Court further notes that the competence of enforcement judges to rule on matters concerning the detention of prisoners was also confirmed by the Constitutional Court, which found that complaints regarding accommodation in prison had to be raised with an enforcement judge before being brought to the attention of the Constitutional Court (see paragraph 24 above).

35 . Having regard to the foregoing, the Court considers that the remedy before the enforcement judge was readily accessible to the applicant and was, a priori , capable of providing him with redress. The Court stresses that the applicant did not submit any arguments to the contrary, nor did he explain why he did not or could not resort to that remedy. In these circumstances, the Court considers that the applicant should have brought his complaints concerning the material conditions of detention at the Bilecik and Çanakkale Prisons first before the enforcement judge. Mere doubts on the part of the applicant, if any, regarding the effectiveness of that remedy did not absolve him from the obligation to try it (see, for instance, Stoian v. Romania , no. 33038/04 , § 101, 8 July 2014 and the cases cited therein ).

36 . The Court therefore concludes that the applicant ’ s complaints regarding the conditions of detention at the Bilecik and Çanakkale Prisons must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

37 . In the light of this finding, the Court sees no reason to examine the complaint raised by the applicant in his letter of 13 September 2013 regarding his alleged inability to access the Constitutional Court in relation to his material conditions of detention , because that remedy would in any event not be available to him without first having exhausted the remedy before the enforcement judge (see paragraphs 24 and 34 above) .

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 21 July 2016 .

Stanley Naismith Julia Laffranque Registrar President