SECOND SECTION

DECISION

Application no . 38453/09 Ä°dris AÅžAN against Turkey

The European Court of Human Rights (Second Section), sitting on 30 August 2016 as a Committee composed of:

Nebojša Vučinić, President, Valeriu Griţco, Stéphanie Mourou-Vikström, judges, and, Hasan Bakırcı, Deputy Section Registrar ,

Having regard to the above application lodged on 30 June 2009,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Ä°dris AÅŸan, is a Turkish national, who was born in 1985.

A. The circumstances of the case

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

3 . The applicant was serving a prison sentence in the Ankara F ‑ type prison when the present application was lodged. On 13 May 2009, the prison disciplinary board decided to destroy a letter which the applicant had written in Turkish and addressed to a newspaper, on the grounds that it “would stir up trouble” ( sakıncalı ) because it contained false statements about the prison that might mislead public opinion. The disciplinary board based its decision on section 68 (3) of Law no. 5275 on the enforcement of sentences and preventive measures and Article 91 § 3 of the Regulations on prison administration and enforcement of sentences.

4 . On 21 May 2009 the Ankara Enforcement Judge dismissed an objection lodged by the applicant.

5 . On 1 June 2009 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:

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).

3. Decree of 9 March 2016

10 . 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.

11 . Article 4 of the decree entitles the Compensation Commission to examine, among other things, 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

12 . The applicant complained that the prison administration had prevented him from sending a letter to a newspaper and had thus breached his right to freedom of expression. He relied on Article 10 of the Convention.

THE LAW

13 . The applicant maintained that the prison disciplinary board ’ s decision to destroy his letter had violated his right to freedom of expression.

14 . The Court considers it more appropriate to examine the complaint concerning the interference with the applicant ’ s correspondence from the standpoint of 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.

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 already examined a similar application in the case of Mehmet Nuri Özen v. Turkey (no. 37619/05 , § 11, 2 February 2010) and held that it was not “necessary in a democratic society” to stop private letters “calculated to hold the authorities up to contempt” or containing “material deliberately calculated to hold the prison authorities up to contempt”. Accordingly, the Court found a violation of Article 8 of the Convention ( ibid , §§ 18-19).

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 dispensing 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), 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.

18 . The competence of the Compensation Commission was subsequently extended by a decree adopted on 9 March 2016. The Court notes in this connection that the Compensation Commission has now the competence to examine complaints concerning 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 11 above).

19 . The Compensation Commission is therefore empowered to award compensation to all individuals in line with the Court ’ s practice (see Turgut and Others (dec.), no. 4860/09, 26 March 2013; Demiroğlu and others v. Turkey (dec.), no. 56125/10, 4 June 2013). 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 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 Erol v. Turkey (dec.), no. 73290/13, 6 May 2014).

20 . 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, 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.

21 . 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.

22 . 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 22 September 2016.

Hasan Bakırcı NebojÅ¡a Vučinić              Deputy Registrar President