Communicated on 26 June 2018

SECOND SECTION

Application no. 51590/07 Zafer TEKTAÅž against Turkey lodged on 22 November 2007

STATEMENT OF FACTS

The applicant, Mr Zafer Tektaş , is a Turkish national, who was born in 1977. He is represented before the Court by Mr F.N. Ertekin and Mr K. Öztürk , lawyers practising in Istanbul.

A. The circumstances of the case

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

On 25 September 2006 the Ninth Division of the Istanbul Assize Court ordered the applicant ’ s pre-trial detention. The crime with which he had been charged, namely aiding and abetting an armed organisation knowingly and intentionally, fell under Article 100 § 3 of the Code of Criminal Procedure, which provided that the commission of a crime enumerated therein may constitute grounds for detention.

On 5 January 2007 the Istanbul public prosecutor filed a bill of indictment against the applicant with the Ninth Division of the Istanbul Assize Court, which had special jurisdiction in respect of a number of aggravated crimes enumerated under Article 250 § 1 of the Code of Criminal Procedure (Law no. 5271) in force at the material time. The applicant was charged with membership of an illegal organisation, namely the Marxist-Leninist Communist Party (MLKP) under Article 314 § 2 of the Criminal Code (Law no. 5237) and section 5 of the Prevention of Terrorism Act (Law no. 3713).

On an unspecified date the Istanbul Assize Court held a preparatory hearing and decided that the first hearing would take place on 13 April 2007.

On 9 March 2007 the applicant ’ s lawyer visited him in prison with a view to providing him with copies of the documents from the criminal case file. According to the applicant ’ s lawyer, those documents included, inter alia , search warrants issued by the police and the public prosecutor; search orders; reports of searches; expert reports; the arrest report ( yakalama tutanağı ); the scene-of-incident report ( olay yeri tespit tutanağı ); orders for bodily samples (such as blood and hair samples) to be obtained; detention orders, objections and court decisions in respect of those orders; documents and pictures obtained from different computers, CDs and memory cards; the applicant ’ s and the co- accuseds ’ police statements; and statements made to the public prosecutor and the investigating judge.

The applicant ’ s lawyer handed those documents over to the prison staff and requested that they be delivered to the applicant. On 12 March 2007 the director of Tekirda ğ F- type prison informed the Tekirda ğ public prosecutor that following “a physical verification” conducted under section 84 (2) of the Regulations concerning the execution of sentences, the documents had been found to include “pictures and the structure of the [illegal] organisation [of which the applicant was accused of being a member]”. The director requested the public prosecutor to obtain a decision from the Tekirda ğ sentence execution judge on whether to deliver the documents to the applicant.

On 12 March 2007 the public prosecutor applied to the Tekirda ÄŸ sentence execution judge requesting that the documents should not be delivered to the applicant. The public prosecutor stated that the prison staff had checked the documents without reading their content with a view to verifying whether the file included drugs or cutting and perforating tools.

On an unspecified date the Tekirda ğ sentence execution judge requested the public prosecutor ’ s opinion. According to the public prosecutor, although the documents consisted of copies taken from the criminal case file, they were not related to the defence and were aimed at increasing organisational solidarity. As such, they put the prison ’ s security at risk by negatively affecting its rehabilitation efforts while at the same time allowing communication amongst the terrorist organisations.

On 30 March 2007 the Tekirda ğ sentence execution judge, relying on an expert report and the written opinion of the public prosecutor, decided not to deliver the documents to the applicant. According to the decision, the judge had transferred the documents to an expert, who had submitted a report dated 23 March 2007. According to the report, the documents in question were copies of the documents seized in the course of the police operations against an illegal armed organisation, namely the MLKP in Istanbul, Manisa , Ayd ın , Kayseri, and Malatya.

On 9 April 2007 the applicant ’ s lawyers visited the applicant in prison, having learned that the documents had not been delivered to the applicant. On the same day they submitted an objection, seeking to have that decision set aside and claiming that the decision had been unlawful.

On 13 April 2007 at the first hearing in the criminal proceedings before the Istanbul Assize Court, the applicant gave evidence in person and was released.

On 16 April 2007 the applicant ’ s lawyers submitted further written observations in which they presented detailed arguments concerning their objection to the Istanbul Criminal Court of First Instance, to be sent to the Tekirdağ Assize Court.

On the same day, ruling on the basis of the case file, the TekirdaÄŸ Assize Court dismissed the objection of 9 April 2007.

When it received the submissions dated 16 April 2007, the TekirdaÄŸ Assize Court found it unnecessary to rule on the matter since it had already dismissed the same objection before.

B. Relevant domestic law

A description of the relevant domestic law may be found in Eylem Kaya v. Turkey , (no. 26623/07, §§ 13-20, 13 December 2016).

C. Relevant international and European materials

1. Council of Europe

(a) Committee of Ministers

European Prison Rules

Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules, adopted on 11 January 2006, in so far as relevant, reads as follows:

Part II

“...

Conditions of imprisonment

...

Legal advice

23.1. All prisoners are entitled to legal advice, and the prison authorities shall provide them with reasonable facilities for gaining access to such advice.

23.2 Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.

...

23.4. Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential.

23.5. A judicial authority may in exceptional circumstances authorise restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and security.

23.6. Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings.”

Part VII

“Untried prisoners

Status as untried prisoners

94.1. For the purposes of these rules, untried prisoners are prisoners who have been remanded in custody by a judicial authority prior to trial, conviction or sentence.

...

Approach regarding untried prisoners

...

95.2. The rules in this part provide additional safeguards for untried prisoners.

Legal advice

98.1. Untried prisoners shall be informed explicitly of their right to legal advice.

98.2. All necessary facilities shall be provided to assist untried prisoners to prepare their defence and to meet with their legal representatives.”

(b) Council of Europe Committee on Crime Problems

In its Commentary to the European Prison Rules, the Council of Europe Committee on Crime Problems provided details as to the scope of legal advice available to prisoners. The relevant part of the Commentary reads:

“ Legal advice

Rule 23

Prison authorities must also facilitate the giving of legal advice by ensuring its confidentiality. The right of access of prisoners to confidential legal advice and to confidential correspondence with lawyers is well established and has been recognised by the European Court of Human Rights and European Commission of Human Rights in a long line of decisions (see in particular Golder v. the United Kingdom, No. 4451/70, judgment of 21/02/1975; Silver and Others v. the United Kingdom, Application Nos. 5947/72 et al., judgment of 25/03/1983). There are different ways in which this can be achieved in practice.

...

Restrictions on such confidentiality by prison authorities are only justified if there are compelling reasons for it and must be subject to review (see Peers v. Greece , n o. 28524/95, judgment of 19/04/2001, paragraph 84, and A.B. v. the Netherlands , n o. 37328/97, judgment of 29/01/2002, paragraph 83). When, exceptionally, a judicial authority does place restrictions on the confidentiality of communications with legal advisers in an individual case, the specific reasons for the restrictions should be stated and the prisoner should be provided with these in writing.

Rule 23.6 is designed to assist prisoners by giving them access to legal documents which concern them. Where for reasons of security and good order it is not acceptable to allow them to keep these documents in their cells, steps should be taken to ensure that they are able to access them during normal working hours.

...

Legal advice

Rule 98

This rule emphasises that positive efforts must be made by the prison authorities to assist prisoners who are facing criminal charges. It should be read together with Rule 23. ”

2. United Nations (a) UN Standard Minimum Rules for the Treatment of Prisoners

The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules) (document A/C.3/70/L.3 of 29 September 2015) were adopted by the United Nations General Assembly as the global key standards for the treatment of prisoners. The relevant parts of the Rules provide:

“ II. Rules applicable to special categories

...

C. Prisoners under arrest or awaiting trial

...

Rule 84

Persons arrested or imprisoned by reason of a criminal charge against them, who are detained either in police custody or in prison custody (jail) but have not yet been tried and sentenced, will be referred to as "untried prisoners" hereinafter in these rules.

...

Rule 93

For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material. Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official.”

UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment

The relevant part of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, approved by the UN General Assembly on 9 December 1988 (A/RES/43/173), reads as follows:

Principle 18

“A detained or imprisoned person shall be entitled to communicate and consult with his legal counsel.

A detained or imprisoned person shall be allowed adequate time and facilities for consultations with his legal counsel.

The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with his legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.”

COMPLAINTS

The applicant complained that the physical check and seizure of the documents sent by his lawyer had breached his rights under Article 8 of the Convention in two different aspects. Firstly, he alleged that there had been no reasonable cause in the instant case to interfere with the privileged lawyer-client relationship. Secondly, he maintained that the authorities had had no right to monitor the content of the documents, since they had been taken from the pending criminal case file against him and thus had related to his defence. Lastly, the applicant submitted that the provisions relied on by the prison staff to physically check the documents had related to convicts, and not to remand prisoners like himself . As such, the interference in the instant case had had no legal basis.

The applicant further complained that he had not had a fair hearing during the proceedings before the sentence execution judge, as the public prosecutor ’ s written opinion and the expert report had not been communicated to him. According to the applicant, the failure to hold a hearing and to provide sufficient reasons for not doing so constituted further factors that had breached his right to a fair trial.

Lastly, the applicant maintained that the wording used by the sentence execution judge in his decision had breached his right to be presumed innocent under Article 6 § 2 of the Convention.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicant ’ s right to respect for his correspondence, contrary to Article 8 of the Convention?

( a) In particular, was the interference in accordance with the law and necessary in terms of Article 8 § 2?

( b) Were appropriate safeguards in place to mitigate the effect of the interference with the applicant ’ s right to respect for his correspondence (see, mutatis mutandis , Eylem Kaya v. Turkey , no. 26623/07, §§ 41 ‑ 49, 13 December 2016)?

( c) Did the authorities put forward relevant and sufficient reasons for seizing the copies of documents from the criminal case file which the applicant ’ s lawyer had attempted to give the applicant?

2. Did the applicant have a fair hearing in the determination of his civil rights and obligations, in accordance with Article 6 § 1 of the Convention?

( a) In particular, was the principle of equality of arms respected as regards the non-communication of the public prosecutor ’ s written opinion and the expert report to the applicant in the proceedings before the sentence execution judge?

( b) Was sufficient reasoning given by the domestic courts?

( c) Was there a public hearing in the proceedings before the sentence execution judge, as required by Article 6 § 1 of the Convention (see Gülmez , cited above, §§ 32-39; and compare with Nusret Kaya and Others v. Turkey , nos. 43750/06 and 4 others, §§ 78-86, ECHR 2014 (extracts)) ?

3. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected by the decision of the Tekirda ğ sentence execution judge when referring to the applicant ’ s “reintegration in society” when the criminal proceedings against the applicant were still ongoing ?