SECOND SECTION

DECISION

Application no . 47768/09 Seyfettin ÇETİN against Turkey

The European Court of Human Rights (Second Section), sitting on 14 June 2016 as a Chamber composed of:

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

Having regard to the above application lodged on 14 August 2009,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Seyfettin Çetin, is a Turkish national, who was born in 1972 and is detained in Kırıkkale.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. At the time of the introduction of this application, the applicant was serving a prison sentence in Kırıkkale.

4. On 6 April 2009 the disciplinary board of the Kırıkkale F-type prison decided to impose a disciplinary sanction on the applicant for going on a hunger strike in order to protest against measures taken against prisoners in the Erzurum F-type prison. Relying on sections 40(2)(g), 42(1) and 48(2) of Law no. 5275 on the enforcement of sentences and preventive measures, the disciplinary board prohibited the applicant from receiving and sending letters, making telephone calls and using other means of communication for a period of one month.

5. On 4 May 2009 the Kırıkkale Enforcement Court dismissed an objection lodged by the applicant.

6. On 25 May 2009 the Kırıkkale Assize Court dismissed an appeal lodged by the applicant.

B. Relevant domestic law and practice

1. Law no. 5275 on the enforcement of sentences and preventive measures, published in the Official Gazette on 29 December 2004

Section 40

“...

(2) The acts punishable by prevention from participating in certain activities are the following:

...

(g) Going on a hunger strike.”

Section 42

“(1) The penalty of deprivation or restriction of access to means of communication consists of completely or partly depriving the convict, for one month to three months, of receiving and sending letters, fax messages and telegrams, watching television, listening to the radio, making telephone calls and using other means of communication.”

Section 48

“...

(2) Each time a convict commits another act punishable by a disciplinary penalty within the period at the end of which a previous finalised disciplinary penalty may be lifted, he or she shall be liable to the next heaviest penalty.”

2. Law no. 6008 amending section 6 of the Law on Enforcement Judges, published in the Official Gazette on 25 July 2010

8. Under section 5 of Law no. 6008, following the lodging of an objection against a disciplinary sanction, the enforcement judge will deliver his/her decision after hearing the defence submissions of the prisoner concerned and collecting all the evidence. The prisoner can present his/her defence submissions in person or through a lawyer.

9. Provisional section 1 of Law no. 6008 provides a further remedy for all those prisoners who had previously lodged objections with enforcement judges concerning disciplinary sanctions imposed on them before the enactment of this law. Accordingly, those who previously lodged objections with enforcement judges against disciplinary sanctions now have the possibility of lodging a fresh objection with an enforcement j udge within six months of the enactment of this law, and their cases will be examined in accordance with the new procedures.

10. A full description of the relevant domestic law may be found in Aydemir and Others v. Turkey ((dec.), nos. 9097/05, 9491/05, 9498/05, 9500/05, 9505/05, and 9509/05, 9 November 2010).

3. Compensation Commission established by Law no. 6384 of 19 January 2013 and the decree of 16 March 2014

11. The object of Law no. 6384 is to provide for the settlement, by means of compensation, of applications lodged with the Court concerning length of judicial proceedings, and non-enforcement or delayed enforcement of judicial decisions. A full description of the relevant domestic law may be found in Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).

12. The competence ratione materiae of the Compensation Commission was subsequently extended by a decree which came into force on 16 March 2014. The decree extended the competence of the Compensation Commission to the examination of other complaints such as alleged restriction of the right of detainees to correspondence in a language other than Turkish and the prison authorities ’ refusal, on different grounds, to hand over periodicals. A full description of the relevant domestic law may be found in Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, §§ 9-17, 27 May 2014).

13. Furthermore, according to Article 5 § 2 of Law no. 6384, an applicant may apply to the Compensation Commission within one month following the official notification of the Court ’ s inadmissibility decision by the Government.

4. Decree of 9 March 2016

14 . The Turkish Council of Ministers issued a decree which came into force on 9 March 2016. The decree extended anew the competence ratione materiae of the Compensation Commission.

Article 4

“a) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the annulment of an applicant ’ s title deeds because his or her land was classified as part of the public forest area, or as a result of the application of section 2/B of Law no. 6831, or because the land was classified as part of the public forest area in cadastral surveys;

b) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the annulment of an applicant ’ s title deeds because the impugned land was classified as located within a coastal area;

c) Applications concerning an alleged violation of the right to peaceful enjoyment of possessions on account of the allocation of the impugned land for public use in local land development plans;

d) Applications concerning an alleged breach of an applicant ’ s right to private and family life on account of the respective disciplinary sanctions imposed on detainees and convicted persons by the prison authorities;

e) Applications concerning an alleged breach of the right to respect for correspondence on account of the prison administration ’ s refusal to receive or send letters or similar correspondence drafted in Turkish.”

COMPLAINTS

16. The applicant complained under Article 8 of the Convention that the disciplinary sanctions imposed on him had constituted an unfair restriction on his communication with others and had violated his right to respect for his private and family life.

17. The applicant also complained under Article 6 § 1 of the Convention that he had been denied the right to a hearing during the disciplinary proceedings in question, as the domestic courts had delivered their decisions on the basis of the case file . He further alleged that the disciplinary board and the domestic courts had lacked impartiality and independence.

18. The applicant complained under Article 7 of the Convention that the domestic authorities had imposed on him a disciplinary sanction which was heavier than the one prescribed by domestic law.

THE LAW

A. Alleged violation of Article 8 of the Convention

19. The applicant complained that the restriction imposed on his communication with others by way of a disciplinary sanction had violated his right to respect for his private and family life. In this connection, he relied on Article 8 of the Convention, which reads:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

20. The Court has already examined similar complaints under Article 8 of the Convention. In assessing whether an interference with the exercise of the applicant ’ s right to correspondence was in accordance with the law and necessary for one of the aims set out in Article 8 § 2 of the Convention, the Court follows the principles enshrined in its case-law on the matter (see Silver and Others v. the United Kingdom , 25 March 1983, § § 85-105, Series A no. 61, and Gülmez v. Turkey , no. 16330/02, §§ 40-55, 20 May 2008).

21. The Court further reiterates that the purpose of the exhaustion rule contained in Article 35 § 1 of the Convention is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Accordingly, this rule requires applicants first to use the remedies provided by the national legal system, thus exempting States from answering before the European Court for their acts. The assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Aydemir and Others v. Turkey ((dec.), nos. 9097/05, 9491/05, 9498/05, 9500/05, 9505/05, and 9509/05, 9 November 2010) .

22. The Court observes that following the pilot judgment procedure applied in the case of Ãœmmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012), on 9 January 2013 the Turkish National Assembly enacted Law no. 6384 on the resolution, by means of compensation, of applications lodged with the Court concerning length of judicial proceedings and non ‑ enforcement or delayed enforcement of judicial decisions (see Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26 and 47-60, 26 March 2013).

23. The competence of the Compensation Commission was subsequently extended by the decree of 9 March 2016.

24. The Court has declared inadmissible for non-exhaustion of domestic remedies the category of repetitive applications covered by the Decree of 16 March 2014 (see Yıldız and Yanak v. Turkey (dec.) , no. 44013/07, §§ 9-17, 27 May 2014 concerning expropriation-related issues; and Bozkurt v. Turkey (dec.), no. 38674/07, §§ 12-21, 10 March 2015 concerning the restrictions for detainees on using non-official languages).

25. The Decree of 9 March 2016 has further extended the competence ratione materiae of the Compensation Commission, which now has the competence to examine complaints concerning alleged breaches of applicants ’ right to private and family life on account of disciplinary sanctions imposed on detainees/convicted persons by prison authorities (see paragraphs 14 and 15 above).

26. The Compensation Commission is therefore empowered to award compensation to such applicants, in line with the Court ’ s practice. The compensation awarded by the Compensation Commission will be paid by the Ministry of Justice within three months of the decision becoming final and will be exempt from any tax or charges. An appeal can be lodged against the Compensation Commission ’ s decision with the Regional Administrative Court, which should decide on the case within three months. The applicant may also lodge an individual application with the Constitutional Court against the decision of the Regional Administrative Court (see Ahmet Erol v. Turkey (dec.), no. 73290/13, 6 May 2014).

27. The Court notes that should the compensation granted at domestic level be insufficient in comparison with the amounts awarded by the Court in similar cases, or in case of refusal of the applicant ’ s claims, it would be open to the applicant to claim that he was still a “victim” within the meaning of Article 34 of the Convention and to lodge a fresh application with the Court.

28. In the light of the above considerations, the Court concludes that the applicant should seek redress for his Convention complaint by using the new remedy under Law no. 6384 (see para.13 above).

29. It follows that the application must be rejected for non-exhaustion of domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

B. Other alleged violations of the Convention

30. The applicant complained that his right to a fair trial had been violated, since the domestic courts had rendered their decisions without holding a hearing. In this connection, he relied on Article 6 § 1 of the Convention, which, in so far as relevant, reads:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

31. The Court notes that section 6 of the Law on Enforcement Judges was amended by Law no. 6008 , so as to allow prisoners charged with disciplinary offences to defend themselves in person or through legal assistance. It further observes that the new law also provides a remedy for all prisoners previously charged with disc iplinary offences: they had six months from the date of enactment of that law to lodge a fresh objection with the enforcement judge concerning their previous sentence. Such an objection would be examined by the enforcement judge in the light of the new procedure.

32. The Court has already examined that remedy and found it effective in respect of applications concerning prison disciplinary sanctions. In particular, it considered that the new remedy was accessible and provided reasonable prospects of success. In assessing the effectiveness of the new remedy, the Court had regard to sample decisions submitted by the Government, which indicated that following the lodging of objections, enforcement judges had re-evaluated the evidence in the case file and annulled the disciplinary sanctions in dispute, clearing the respective prisoners of all consequences of the offence (see Aydemir and Others , cited above; Aksoy v.Turkey (dec.), no. 8498/05 and 158 others, 11 January 2011; Murat Arslan v. Turkey (dec.), no. 9486/05, 25 January 2011 ; and Güler v. Turkey (dec.), no. 14377/05, 25 January 2011).

33. Considering that there are no exceptional circumstances capable of exempting the applicant from the obligation to exhaust domestic remedies, the Court concludes that he should have availed himself of the new remedy offered by Law no. 6008 of 25 July 2010.

34. This part of the application must ther efore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

35. Relying on Articles 6 and 7 of the Convention, the applicant alleged that the domestic courts had lacked independence and impartiality and had imposed on him a disciplinary sanction which was heavier than the one prescribed by domestic law.

36. The Court observes that the applicant did not provide further details regarding these complaints. In the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court considers that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Done in English and notified in writing on 7 July 2016 .

             Stanley Naismith Julia Laffranque Registrar President