SAYAN v. TURKEY
Doc ref: 49460/11 • ECHR ID: 001-164867
Document date: June 14, 2016
- Inbound citations: 5
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- Cited paragraphs: 5
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- Outbound citations: 8
SECOND SECTION
DECISION
Application no . 49460/11 Ali SAYAN 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 11 May 2011,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Ali Sayan , is a Turkish national, who was born in 1989 and lives in Ä°zmir.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. When the present application was lodged, the applicant was in pre-trial detention in the Ankara F-type prison. On 7 January 2011 the prison disciplinary board decided to destroy a postcard sent to him, allegedly to celebrate the new year, on the grounds that the postcard “would stir up trouble” ( sakıncalı ) because the picture on it incited violence.
4. On 19 January 2011 the Ankara Enforcement Judge dismissed an objection lodged by the applicant.
5. On 28 February 2011 the Ankara Assize Court dismissed a further appeal lodged by the applicant.
B. Relevant domestic law and practice
1. Prisoners ’ right to correspondence
6. Prisoners ’ right to correspondence is mainly set forth in section 68(3) of Law no. 5275 on the execution of sentences and preventive measures and Article 91 § 3 of the Regulations on prison management and execution of sentences. Under that law, prisoners ’ correspondence is monitored by a letter-reading committee and may be subjected to restrictions in the following circumstances:
Loading citations...7. A full description of the domestic law and practice at the relevant time may be found in Mehmet Nuri Özen and Others v. Turkey (nos. 15672/08, 24462/08, 27559/08, 28302/08, 28312/08, 34823/08, 40738/08, 41124/08, 43197/08, 51938/08 and 58170/08 , §§ 30-34, 11 January 2011).
2. Compensation Commission established by Law no. 6384 and decree of 16 March 2014
8. Under Law no. 6384 a Compensation Commission was set up in Turkey to resolve, by means of compensation, applications lodged with the Court. Initially, the Commission ’ s competence ratione materiae was limited to applications 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).
9. The competence ratione materiae of the Compensation Commission was extended by a decree which came into force on 16 March 2014. The Compensation Commission could thus examine other complaints such as alleged restriction of prisoners ’ right to respect for correspondence in a language other than Turkish and refusal by the prison authorities, 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).
10. 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.
3. Decree of 9 March 2016
11. The Turkish Council of Ministers issued a decree which was published in the Official Gazette and came into force on 9 March 2016. The new decree further extended the competence ratione materiae of the Compensation Commission.
12 . Article 4 of the decree entitles the Compensation Commission to examine, among others, complaints concerning alleged breaches of the right to respect for correspondence of detainees or convicted persons on account of the non-transmission of correspondence drafted in Turkish. The relevant part of the provision reads as follows:
“Article 4
...
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 that are drafted in Turkish.”
COMPLAINT
13. Relying on Article 8 of the Convention, the applicant complained that the prison administration had prevented him from receiving a postcard and had thus breached his right to respect for his correspondence.
THE LAW
14. The applicant maintained that the prison disciplinary board ’ s decision to destroy a postcard that had been sent to him had violated his right to respect for his correspondence protected by Article 8 of the Convention, which in so far as relevant reads as follows:
“1. Everyone has the right to respect for ... 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.”
15. The Court has examined similar applications against Turkey on several occasions and found a violation of Article 8 of the Convention on the grounds that the interference was not “in accordance with the law” (see Tan v. Turkey , no. 9460/03, §§ 24-26, 3 July 2007, and Tur v. Turkey , no. 13692/03 , §§ 23-25, 11 June 2013 ) or was not “necessary in a democratic society” (see Fazıl Ahmet Tamer v. Turkey , no. 6289/02, § § 54-56, 5 December 2006, and Mehmet Nuri Özen v. Turkey , no. 37619/05 , §§ 18-19, 2 February 2010).
16. The Court 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 İçyer v . Turkey ( dec. ), no. 18888/02, § 72, 12 January 2006).
17. The Court observes that following the pilot judgment procedure applied in the case of Ãœmmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012), 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. Law no. 6384 provided for the establishment of a Compensation Commission to deal with the Convention complaints falling within its scope.
18. The Turkish Council of Ministers subsequently issued a decree on 16 March 2014 which enabled applicants to bring before the Compensation Commission certain Convention complaints other than those concerning length of judicial proceedings and non ‑ enforcement of judicial decisions. It thus extended the competence ratione materiae of the Compensation Commission (see paragraph 9 above).
19. The competence of the Compensation Commission was further extended by a decree published on 9 March 2016. The Court notes in this connection that the Compensation Commission now has the competence to examine complaints concerning an alleged breach of the right to respect for correspondence of detainees or convicted persons, on account of the non-transmission of letters drafted in Turkish (see paragraph 10 above).
20. In the cases of Turgut and Others v. Turkey (( dec. ), no. 4860/09, 26 March 2013) and DemiroÄŸlu v. Turkey (( dec. ), 56125/10, 4 June 2013) the Court carried out a detailed examination of the context and scope of Law no. 6384 and the functioning of the Compensation Commission. It held in those cases that the applicants must first apply to the Compensation Commission in so far as it provided a new domestic remedy that was accessible and capable of providing redress in respect of their complaints. The Court consequently in both cases declared the applications inadmissible for non-exhaustion of domestic remedies.
21. When examining a series of repetitive cases against Turkey, the Court has maintained its approach in terms of the decree of 16 March 2014 and accordingly declared the applications inadmissible for non-exhaustion of domestic remedies ( see Yıldız and Yanak v. Turkey ( dec. ) , no. 44013/07, 27 May 2014; Bozkurt v. Turkey ( dec. ), no. 38674/07, 10 March 2015; Çelik v. Turkey ( dec. ), no. 23772/13, 16 June 2015; and Özbil v. Turkey ( dec. ), no. 45601/09, 29 September 2015).
22. The Court observes that the Compensation Commission is empowered to award compensation to all individuals in line with the Court ’ s practice (see Turgut and Demiroğlu , both cited above). Compensation awarded by the Compensation Commission is paid by the Ministry of Justice within three months of the decision becoming final and is exempt from any tax or charges. An appeal may 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 bring an individual application to the Constitutional Court against the decision of the Regional Administrative Court (see Ahmet Erol v. Turkey ( dec. ), no. 73290/13, 6 May 2014).
23. 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 introduce a fresh application before the Court.
24. In the light of the above considerations, the Court concludes that the applicant should seek redress for his complaint by applying to the Compensation Commission (see para graph 10 above).
25. It follows that the application should be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 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