GÜLER v. TURKEY
Doc ref: 14377/05, 14530/05, 36458/06, 11493/07, 14393/07, 51629/07, 15614/08, 39323/08, 39406/08, 39446/08, ... • ECHR ID: 001-103506
Document date: January 25, 2011
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SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 14377/05 by Hamza GÃœLER and 49 other applications against Turkey
The European Court of Human Rights (Second Section), sitting on 25 January 2011 as a Chamber composed of:
Françoise Tulkens , President, Ireneu Cabral Barreto , Danutė Jočienė , András Sajó , Nona Tsotsoria , Işıl Karakaş , Kristina Pardalos , judges, and Françoise Elens-Passos , Deputy Section Registrar ,
Having regard to the above applications introduced on the dates indicated in the appendix,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by some of the applicant s ,
Having deliberated, decides as follows:
THE FACTS
The applicants are Turkish nationals [1] and at the time of their applications were either serving prison sentences or being held in detention pending trial in various establishments. The names and dates of birth of the applicants, as well as the names of their representatives, appear in the appendix.
A. The circumstances of the case
The facts of the cases, as submitted by the applicants, may be summarised as follows.
The applicants were found guilty of breaching prison order by decisions of the res pective prison disciplinary boards (“the board”). Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, they were all sentenced to various types of disciplinary sanctions. Their appeal requests were rejected by the Enforcement Judges and the Assize Courts respectively, on the basis of the case file, without hearing the applicants or their lawyers, pursuant to Law no. 4675 on Enforcement Judges, dated 16 May 2001 .
The details of the applications as well as the complaints raised by the applicants appear in the table below.
Application no.
and case name
Disciplinary breach committed
Type of sanction imposed on the applicant
Date of Board ’ s decision
Date of final decision delivered by the Assize Court
Intro-duction date of the application
Complaints raised by the applicant
14377/05
Güler
v. Turkey
b reaching prison order by disturbing o ther inmates in the prison
b an on receiving visitors for 1 month
31/08/ 2004
4 /10/20 04
05/04/ 2005
Articles 3, 6 and 8
14530/05 Gümüş
v. Turkey
p ressing emergency buttons in the cell and refusing to participate in social acti vities, vocational workshops in the prison
ban on corres pondence for 15 days
29/12/ 2004
26/01/ 2005
18/02/ 2005
Article 6
36458/06 Tanış
v. Turkey
supporting fellow prisoners on hunger strike
ban on corres pondence and communication for 3 months
17/02/ 2006
23/3/ 2006
03/08/ 2006
Article 8
11493/07 Danış
v. Turkey
(no. 4)
w riting pet ition to the public prosecutor in support of Öcalan
b an on receiving visitors for 1 month
05/10/ 2006
13/12/ 2006
08/02/ 2007
Articles 1, 3, 6, 7, 10, 13 and 14
14393/07 Çelebi
v. Turkey
(no. 3)
writing petition to the public prosecutor in support of Öcalan
ban on correspondence and communication for 1 month
05/10/2006
13/12/2006
08/02/2007
Articles 1, 3, 6, 7, 8, 10, 13 and 14
51629/07
Özbil
v. Turkey
(n o.2)
a) b anging on the doors of the cells and chanting slogans
b) w riting petition to the Ministry of Justice and public prosecutor, concerning unfounded allegations against the prison staff
a) ban on corres pondence for 1 month
b) b an on certain activities for 45 days
a)
25/05/ 2007
b)
03/09/ 2007
a)
03/07/ 2007
b)
09/10/ 2007
a)
02/11/ 2007
b)
02/11/ 2007
Articles 6, 8, 10 and 13
15614/08
Maho
v. Turkey
(No.1)
w riting petition to the Ministry of Justice to protest against the detention conditions of Öcalan
b an on correspondence for 1 month
13/12/ 2007
15/01/ 2008
12/03/ 2008
Article 8
39323/08
Åžorli
v. Turkey
l aunching a hunger strike to protest against the detention conditions of Öcalan
ban on certain activities for 3 months
31/03/ 2008
27/05/ 2008
23/07/ 2008
Articles 6, 8, 9, 10 and 13
39406/08
Koçuk
v. Turkey
l aunching a hunger strike
ban on correspondence and communication for 1 month
06/12/ 2007
29/01/ 2008
28/07/ 2008
Articles 6 and 13
39446/08
Taç
v. Turkey
l aunching a hunger strike and
writing petition to the Ministry of Justice in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed
11 days ’ cellular confinement
14/12/ 2007
31/01/ 2008
28/07/ 2008
Articles 6 and 13
42109/08
Uçar and o thers
v. Turkey
l aunching a hunger strike to protest against the detention conditi ons of Ö calan
d eprivation of any paid work for 3 months
28/11/20 07
14/02/ 2008
13/08/ 2008
Articles 6 and 13
42597/08
Kortak and Öztürk
v. Turkey
w riting petition to the CPT in which they praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed
13 days ’ cellular confinement
25/12/ 2007
31/01/ 2008
29/07/ 2008
Articles 6, 8, 9, 10, 13, 17 and 18
43047/08
Kızıldemir and Taç
v. Turkey
l aunching a hunger strike
b an on correspondence and communication for 45 days
15/01/ 2008
29/02/ 2008
29/08/ 2008
Articles 6, 8, 13 and 14
43600/08
Karakoç
v. Turkey
w riting petition to the Ministry of Justice in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed
13 days ’ cellular confinement
14/01/ 2008
25/02/ 2008
25/08/ 2008
Articles 6, 8, 9, 10, 13 and 14
43872/08
DoÄŸan and Ulusan
v. Turkey
l aunching a hunger strike and
writing petition to the Ministry of Justice in which they praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed
13 days ’ cellular confinement
28/12/ 2007
25/02/ 2008
25/08/ 2008
Articles 6, 8, 9, 10, 13 and 14
44646/08
Çetin
v. Turkey
(n o.12)
l aunching a hunger strike
b an on receiving visitors for 15 days
31/05/ 2005
01/07/ 2005
09/11/ 2005
Articles 6 and 8
44647/08
Çetin
v. Turkey
(n o.13)
l aunching a hunger strike
b an on prison workshops and sports activities for 1 month
20/02/ 2006
03/04/ 2006
19/06/ 2006
Article 6
44648/08
Çetin
v. Turkey
(no.14)
chanting slogans
ban on correspondence for 1 month
01/03/2006
03/04/2006
15/06/2006
Article 8
44649/08
Çetin
v. Turkey
(no.15)
writing petition to the prison administration protesting the detention conditions
ban on correspondence for 1 month
15/03/2006
27/04/2006
22/06/2006
Articles 6 and 8
44650/08
Çetin
v. Turkey
(n o.16)
l aunching a hunger strike
b an on prison workshops and sports activities for 1 month
24/03/ 2006
27/04/ 2006
26/06/ 2006
Article 6
44651/08
Çetin
v. Turkey
(n o.17)
w riting petition to the public prosecutor in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed
b an on prison workshops and sports activities for 45 days
09/05/ 2006
08/06/ 2006
19/07/ 2006
Article 6
47204/08
Bozç alı
v. Turkey
(no.3)
w riting petition to the Ministry of Justice in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed
b an on certain activities for 3 months
05/06/ 2008
25/07/ 2008
15/09/ 2008
Articles 1, 3, 6, 7 and 8
51490/08
Rüzgar
v. Turkey
l aunching a hunger strike and
writing petition to the Ministry of Justice in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed
13 days ’ cellular confinement
26/02/ 2008
09/04/ 2008
08/10/ 2008
Articles 6, 8, 9, 10, 13 and 14
53325/08
Sarı
v. Turkey
(no.2)
launching a hunger strike and
writing petition to the Ministry of Justice in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed
ban on certain activities for 3 months
05/06/2008
11/07/2008
21/10/2008
Articles 9, 10 and 14
53414/08 Kartal
v. Turkey
w riting petition to the CPT in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed
11 days ’ cellular confinement
25/12/ 2007
04/03/ 2008
03/09/ 2008
Articles 6, 8, 9, 10, 13, 17 and 18
53417/08
Kılınç and o thers
v. Turkey
a) R. Kortak
l aunching a hunger strike and
writing petition to the Ministry of Justice in which they praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed
b) N. Adanmış
l aunching a hunger strike
c ) C. Cengiz, H. Yünaçtı, M. Ulusan, Ö. Bitirgeç, D. Kılınç, F. Taç, A. Kaçmaz, R. Kortak
l aunching a hunger strike and
writing petition to the Ministry of Justice in which they praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed
a) 15 days ’ cellular confinement
b) b an on correspondence and communication for 50 days
c) 15 days ’ cellular confinement
a)
17/03/2 008
b)
17/03/2008
c)
05/06/2008
a)
23/04/2008
b)
13/05/2008
c)
28/08/2008
a)
22/10/ 2008
b)
22/10/2008
c)
22/10/2008
Articles 6, 8, 9, 10, 13, 17 and 18
60918/08
Özen
v. Turkey
(n o.9)
l aunching a hunger strike and
w riting petition to the Ministry of Justice in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed
b an on certain activities for 3 months
05/06/ 2008
25/07/ 2008
24/11/ 2008
Articles 6, 7, 9, 10, 13
4353/09
Ersayan
v. Turkey
(n o.1)
l aunching a hunger strike to protest against the detention conditions of Öcalan
b an on certain activities for 2 months
20/05/ 2008
14/10/ 2008
09/01/ 2009
Articles 6, 8, 9, 10 and 13
6887/09
Koyuncu
(n o.9)
l aunching a hunger strike
b an on certain activities for 2 months
13/10/ 2008
28/11/ 2008
22/01/ 2009
Articles 6, 7 and 9
10088/09
YiÄŸit
v. Turkey
(n o.9)
a) l aunching a hunger strike
b) l aunching a hunger strike
a) b an on correspondence and communication for 1 month
b) b an on correspondence and communication for 2 months
a) 22/09/ 2008
b)
30/10/ 2008
a) 31/10/ 2008
b)
12/11/ 2008
b)
20/01/ 2009
b)
20/01/ 2009
Article 10
10867/09
TaÅŸdemir
v. Turkey
(n o.2)
c hanting slogans
b an on correspondence and communication for 1 month
06/11/ 2008
24/12/ 2008
09/02/ 2009
Articles 6, 9 and 10
13784/09
Kızıldağ and o thers
v. Turkey
c hanting slogans
b an on correspondence and communication for 1 month
06/11/ 2008
24/12/ 2008
13/02/ 2009
Articles 6, 9 and 10
14980/09
Tekin
v. Turkey
c hanting slogans
b an on correspondence and communication for 1 month
06/11/ 2008
24/12/ 2008
20 /02/ 2009
Articles 6, 9 and 10
16412/09 Dünder
v. Turkey
(n o.2)
a) l aunching a hunger strike
b) l aunching a hunger strike
a) b an on prison workshops and sports activities for 2 months
b) b an on correspondence and communication for 45 days
a)
22/09/ 2008
b)
17/10/ 2008
a)
27/10/2008
b)
31/10/ 2008
a)
10/02/ 2009
b)
10/02/ 2009
Articles 6, 7 and 10
16930/09
Osman
v. Turkey
(n o.2)
c hanting slogans
b an on correspondence and communication for 1 month
06/11/ 2008
24/12/ 2008
12/02/ 2009
Articles 6, 9 and 10
16932/09
Bahadır
v. Turkey
(n o.3)
c hanting slogans
b an on correspondence and communication for 1 month
06/11/ 2008
24/12/ 2008
12/02/ 2009
Articles 6, 9 and 10
17113/09
YeÅŸilmen and
Others
v. Turkey
(no.1)
a) S. YeÅŸilmen
supporting fellow prisoners on hunger strike
b) E. Baysal
launching a hunger strike
c) C. YaÅŸar
launching a hunger strike
a) ban on certain activities for 2 months
b) ban on certain activities for 3 months
c) deprivation of any paid work for 3 months
a)
12/06/2008
b)
12/06/2008
c)
12/06/2008
a)
19/09/2008
b)
19/09/2008
c)
19/09/2008
a)
19/03/2009
b)
19/03/2009
c)
19/03/2009
Articles 6, 8, 10, 13 and 14
19769/09
Åžorli and Others
launching a hunger strike
For the applicant R. Öz:
ban on certain activities for 3 months
For the applicants
M. Åžorli, M. AladaÄŸ and M. UÄŸur:
d eprivation of any paid work for 3 months
12/06/2008
19/09/2008
21/01/2009
Articles 6, 8, 9, 10, 13
20911/09
Gedik
v. Turkey
(no .15)
insulting the prison authorities and prison guards
ban on correspondence and communication for 1 month
02/01/2009
10/02/2009
23/02/2009
Articles 6, 7, 8, 9, 10 and 14
22673/09
Tuncer
v. Turkey
launching a hunger strike
ban on correspondence and communication for 1 month
24/12/2008
07/03/2009
23/03/2009
Articles 3, 6, 7, 8, 9, 10, 13, 17 and 18
22689/09
Ersayan
v. Turkey
(n o.2)
a) launching a hunger strike
b) w riting petition to the public prosecutor in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed
a) ban on certain activities for 2 months
b) 11 days ’ cellular confinement
a)
26/06/2008
b)
17/07/2008
a)
14/10/2008
b)
21/11/2008
a)
11/04/2009
b)
11/04/2009
Articles 6, 8, 9, 10, 13
23560/09
Yaman
v. Turkey
avoiding telephone calls to protest against the prison administration
ban on receiving visitors for 2 months
20/06/2008
08/10/2008
08/04/2009
Articles 6, 7, 10, 13, 14, 17 and 18
24109/09
TaÅŸar
v. Turkey
(no.2)
chanting slogans
ban on correspondence and communication for 1 month
06/11/2008
24/12/2008
13/02/2009
Articles 6, 9 and 10
24115/09
Mustafa
v. Turkey
(no.2)
chanting slogans
ban on correspondence and communication for 1 month
06/11/2008
24/12/2008
13/02/2009
Articles 6, 9 and 10
24117/09
Kudat
v. Turkey
(no.2)
chanting slogans
ban on correspondence and communication for 1 month
06/11/2008
24/12/2008
13/02/2009
Articles 6, 9 and 10
25034/09
Tekmenüray
v. Turkey
(no.12)
Illegal correspondence
B an on prison workshops and sports activities for 1 month
14/01/2009
12/02/2009
11 /03/2009
Articles 8 and 10
25650/09
Ä°nan
v. Turkey
chanting slogans
ban on correspondence and communication for 2 months
18/08/2008
21/10/2008
16/12/2008
Articles 6, 8 and 13
25659/09
Yıldırım
v. Turkey
chanting slogans
ban on correspondence and communication for 2 months
18/08/2008
21/10/2008
16/12/2008
Articles 6, 8 and 13
25667/09
Karaaslan
v. Turkey
(no.3)
launching a hunger strike and w riting petition to the Ministry of Justice in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed
11days ’ cellular confinement
01/02/2008
05/03/2008
14/05/2008
Articles 6, 7, 9, 10 and 13
25952/09
TaÅŸgir
And Others
v. Turkey
launching a hunger strike
ban on correspondence and communication for 2 months
17/09/2008
30/10/2008
21/04/2009
Articles 6, 8, 13 and 14
B. Relevant domestic law and practice
A description of the relevant domestic law may be found in Gülmez v. Turkey ( no. 16330/02, § § 13-15 , 20 May 2008 ) and Aydemir and Others ((dec.), nos. 9097/05, 9491/05, 9498/05, 9500/05, 9505/05 and 9509/05, 9 November 2010).
THE LAW
Given the similarity of the applications, as regards both fact and law, the Court deems it appropriate to join them.
The applicants mainly argued that they did not have a fair hearing during the disciplinary proceedings in question as the domestic courts had delivered their decisions on the basis of the case files and that they had been deprived of their right to defend themselves in person or through the assistance of a lawyer. In this respect, most of the applicants relied on Article 6 of the Convention. The remaining applicants based on the same facts and raising the same complaint, merely cited Articles 2, 3, 5, 7, 9, 13, 14, 17 and 18. The Court notes that although the applicants referred to different Articles of the Convention, they all complained about the unfairness of the disciplinary proceedings in dispute. It will thus examine these complaints under Article 6 of the Convention.
Furthermore, some of the applicants (as indicated in the table above), alleged a violation of Article 8 in respect of the ban on their right to correspondence and/or visiting rights, or a violation of Article 10, stating that the disciplinary sanctions imposed on them had violated their right to freedom of expression.
The Court notes that by Law no. 6008 of 22 July 2010, Section 6 of the Law on Enforcement Judges was amended 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 those prisoners who had previously been charged with disciplinary offences to file a fresh objection with the Enforcement Judge concerning their previous sentences within six months following the adoption of this law. Such requests would be examined by the Enforcement Judge in the light of the new procedure.
The Court has already examined that remedy and found it effective in respect of complaints for applications concerning prison disciplinary sanctions. In partic ular, it considered that the new remedy was accessible and provided reasonable prospects of success (see Aydemir and O thers , cited above). In assessing the effectiveness of the new remedy, the Court had regard to sample decisions submitted by the Government, according to which upon fresh objections, the 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.
Considering that there are no exceptional circumstances capable of exempting the present applicants from the obligation to exhaust domestic remedies, the Court concludes that the y should have avail themselves of the new remedy offered by Law no. 6008 of 22 July 2010 .
Therefore, the application s must be rej ected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the application s inadmissible.
Françoise Elens-Passos Françoise Tulkens Deputy Registrar President
APPENDIX
Application No.
Name of Applicant
Date of Birth
14377/05
Hamza Güler
1974
14530/05
Şahin Gümüş
1973
36458/06
Mehmet N uri Tanış
1975
11493/07
Mehmet Veysi Danış
1976
14393/07
Mehmet Nur Çelebi
1974
51629/07
Sami Özbil
1977
15614/08
Tevfik Maho
1968
39323/08
Muhammed Åžorli
1987
39406/08
Alaheddin Koçuk
1987
39446/08
Faik Taç
1972
42109/08
a) Abdülkadir Uçar
b) Abdullah Günay
c) Cengiz Atsız
d) Fesih Nardan
1983
1979
1982
1964
42597/08
a) Re mazan Kortak
b) Nevzat Öztürk
1966
1966
43047/08
a) Tahir Kızıldemir
b) Faik Taç
1971
1972
43600/08
Fikret Karakoç
1975
43872/08
a) Tuncay DoÄŸan
b) Mahmut Ulusan
1970
1970
44646/08
Fermani Çetin
1972
44647/08
Fermani Çetin
1972
44648/08
Fermani Çetin
1972
44649/08
Fermani Çetin
1972
44650/08
Fermani Çetin
1972
44651/08
Fermani Çetin
1972
47204/08
Mehmet Şirin Bozç alı
1966
51490/08
Abdullah Rüzgar
1969
53325/08
Hüseyin Sarı
1958
53414/08
Sedat Kartal
1989
53417/08
a) Derviş Kılınç
b) Hamza Yünaçtı
c) Abdülcelil Kaçmaz
d) Cafer Cengiz
e) Nurettin Adanmış
f) Faik Taç
g) Remazan Kortak
h) Mahmut Ulusan
i) Önder Bitirgiç
j) Tuncay DoÄŸan
1967
1976
1967
1956
1971
1972
1966
1970
1984
1970
60918/08
Mehmet Nuri Özen
1976
4353/09
Halis Ersayan
1989
6887/09
Turgut Koyuncu
1974
10088/09
Kemal YiÄŸit
1982
10867/09
Mehmet Åžirin TaÅŸdemir
1969
13784/09
a) Ramazan Kızıldağ
b) Abdullah Çelik
c) Hikmet Kara
d) Barış Kılıç
1974
1972
1970
1976
14980/09
Cemal Tekin
1968
16412/09
Barış Dünder
1986
16930/09
Abdulmenaf Osman
1965
16932/09
Nevzat Bahadır
1978
17113/09
a)Åžabeddin YeÅŸilmen
b) Enver Baysal
c) Cahit YaÅŸar
1971
1975
1979
19769/09
a) Muhammed Åžorli
b) Mehmet AladaÄŸ
c) Medeni UÄŸur
d) Resul Öz
1987
1974
1988
1987
20911/09
Soncan Gedik
1967
22673/09
Mete Tuncer
1969
22689/09
Halis Ersayan
1989
23560/09
Mahmut Yaman
1974
24109/09
Ä°smail TaÅŸar
1976
24115/09
Ahmet Mustafa
1975
24117/09
Aydın Kudat
1969
25034/09
Mehmet Şirin Tekmenüray
1970
25650/09
Barış İnan
1973
25659/09
Süleyman Yıldırım
1987
25667/09
Kenan Karaaslan
1966
25952/09
a) Zeynep TaÅŸgir
b) Azime Işık
c) Aslı Doğan
d) Sibel Kurt
1985
1977
1979
1984[1] 1. With the exception of Mr Maho, who is a Syrian citizen.