Communicated on 22 June 2015

SECOND SECTION

Application no. 42744/09 Haydar TÄ°KÄ°Z against Turkey lodged on 1 April 2009

STATEMENT OF FACTS

The applicant, Mr Haydar Tikiz , is a Turkish national, who was born in 1969 and is currently detained in Tekirda ÄŸ T-Type Prison .

A. The circumstances of the case

The facts of the case, as submitted by the applicant and as they appear from the documents submitted by him , may be summarised as follows.

On 15 August 2002 the applicant started serving his prison sentence in Erzurum H-Type Prison (“the Erzurum Prison”).

According to the applicant ’ s overall description of the conditions of his detention, at the time of the introduction of the application the Erzurum Prison did not provide any facilities for the organi s ation of social and cultural activities. This was because the building had not been purpose-built as a prison. For instance, the outdoor exercise yard did not allow for a proper work - out as it had a concrete floor and no shelter. The 3 or 4 square metres conversation room where inmates were taken in groups of ten was too small , to the point where they had to sit down in turns. In addition, the inmates did not benefit from any kind of activit ies or training course s for a period of two years, nor did they have access to any conversation session s for a period of six months .

On an unknown date, the applicant went on a hunger strike in order to protest against the lack of social and cultural activities in the Erzurum Prison.

On 13 October 2008 a disciplinary sanction was imposed on the applicant for having gone on hunger strike. The sanction consisted of restriction of access for a period of two months to activities conducted in the Erzurum Prison.

On 28 October 2008 the applicant filed an objection against the disciplinary sanction which was rejected by the Erzurum Enforcement Court Judge on 5 November 2008.

On 11 November 2008 the applicant, together with ninety-three other detainees, submitted a complaint to the Erzurum Enforcement Court Judge regarding the lack of activities in the Erzurum Prison. The applicant requested a transfer to another prison.

On 3 December 2008 the Enforcement Court rejected the detainees ’ petition. It noted that, according to the information given by the prison authorities, there was no other secure area than the one already provided where a physical exercise programme could have been implemented and that social and cultural facilities were being provided to prisoners within the limited resources available. The Enforcement Court held that the programme of activities in the Erzurum Prison was in accordance with the relevant legislation and complied with the physical requirements of an H-Type High ‑ Security Prison. The applicant lodged an objection against the Enforcement Court ’ s decision.

On 29 December 2008 the Erzurum Assize Court rejected the applicant ’ s objection, holding that the decision in issue was in accordance with the law and procedure.

On 4 February 2013 the applicant was transferred to the Tekirda ÄŸ T ‑ Type prison.

B . Relevant International Materials

1. European Prison Rules

The European Prison Rules are recommendations of the Committee of Ministers of the Council of Europe to Member States setting out the minimum standards to be applied in prisons. States are encouraged to be guided by the Rules in their legislation and policies and to ensure wide dissemination of the Rules to their judicial authorities and to prison staff and inmates.

On 11 January 2006 the Committee of Ministers adopted a new version of the European Prison Rules, noting that the 1987 Rules “needed to be substantively revised and updated in order to reflect the developments which had occurred in penal policy, sentencing practice and the overall management of prisons in Europe”. The 2006 Rules contain the following basic principles:

“ (...)

Prison regime

25.1 The regime provided for all prisoners shall offer a balanced programme of activities.

25.2 This regime shall allow all prisoners to spend as many hours a day outside their cells as are necessary for an adequate level of human and social interaction.

25.3 This regime shall also provide for the welfare needs of prisoners.

25.4 Particular attention shall be paid to the needs of prisoners who have experienced physical, mental or sexual abuse.

( ... )

Exercise and recreation

27.1 Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air, if the weather permits.

27.2 When the weather is inclement alternative arrangements shall be made to allow prisoners to exercise.

27.3 Properly organised activities to promote physical fitness and provide for adequate exercise and recreational opportunities shall form an integral part of prison regimes.

27.4 Prison authorities shall facilitate such activities by providing appropriate installations and equipment.

27.5 Prison authorities shall make arrangements to organise special activities for those prisoners who need them.

27.6 Recreational opportunities, which include sport, games, cultural activities, hobbies and other leisure pursuits, shall be provided and, as far as possible, prisoners shall be allowed to organise them.

27.7 Prisoners shall be allowed to associate with each other during exercise and in order to take part in recreational activities .

(...)”

2 . Relevant Reports of The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“The CPT”)

A delegation of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT ”) visited Turkey from 4 to 17 June 2009 . In its ensuing report (CPT/ Inf (2011) 13) , published on 31 March 2011 , the CPT noted the following in relation to , in particular, the lack of activities in the Erzurum Prison where the applicant was detained :

“(...)

3. Conditions of detention of adult prisoners at Erzurum E-type and H-type Prisons and Konya E-type Prison

a . material conditions

(...)

b . activities

92. The CPT has repeatedly emphasised the importance of ensuring that all prisoners (including those on remand) spend a reasonable part of the day outside their cells engaged in purposeful activities of a varied nature, such as work, preferably with vocational value, education, sport, and recreation/association. This is not only a fundamental part of the process of social rehabilitation, but it also contributes to the establishment of a more sec ure environment within prisons.

(...)

95. (...) prisoner accommodation at Erzurum H-type Prison was provided in smaller living units. This is, in principle, a positive development, provided that prisoners also benefit from an adequate programme of activities outside their living units. However, as the CPT has pointed out in previous reports, the detrimental effects of the absence of an organised programme of activities will be felt more acutely in smaller living units than in dormitories. The Committee is therefore concerned by the facts found by its delegation.

The delegation observed that the provision of activities was rather limited in this H ‑ type establishment. A few courses (musical instruments, chess, darts, etc.) were offered once a week to some 40 inmates, and 19 inmates were involved in the bookbinding, painting and handicraft workshops for three hours per week. The frequency of the three regular forms of activity offered to all prisoners, namely association/conversation, sports and library sessions, left much to be desired. Inmates could normally benefit from six to seven conversation sessions (1.5 hours each), three sports sessions (3 hours each) and three library sessions (1.5 hours each) within a three-month period [1] ; in other words, a total of some eight hours of out-of-unit time per month .

As regards conversation sessions, they took place in two rooms (each with an adjoining outdoor yard) which were clearly too small for ten persons (some 8 m 2 ) and would be extremely cramped during inclement weather .

In this connection, the Turkish authorities informed the CPT, by letter of 23 September 2009, that “[r] ooms (30 m 2 including the gardens) in the blocks for prison officers have been designated as conversation places.” It is also indicated that works have started in the prison to establish two additional association rooms and two handcraft workshops. The CPT welcomes these measures.

96. The prison did not possess an indoor sports hall, and the only outdoor sports yard was devoid of any shelter, which rendered it unusable during the long winter season [2] .

97. The delegation also noted with concern the practice observed in the three prisons visited of not offering any sports activities or association periods during the first week of every month (that being the week of open visits). This meant that there were only 15 days per month for the two most popular forms of activity.

98. The limited range of out-of-unit activities on offer, the manner in which they were arranged and the lack of staff qualified to organise such activities resulted in a seriously deficient regime for prisoners at Erzurum H-type Prison. Out-of-unit time for a prisoner was never more than four to five hours per week, and often much less.

99. To sum up, in all the three establishments visited the possibilities for organised activities were limited for the vast majority of prisoners; thus, they had to spend a good part of the day inside their living units, the principal means of distraction being walking in a courtyard and watching television.

The CPT therefore recommends that the Turkish authorities take steps at Erzurum E-type and H-type Prisons and Konya E-type Prison to improve facilities for organised activities and to significantly increase the number of prisoners who benefit from such activities. As regards more particularly conversation periods, the recommendation made on this subject in paragraph 111 should be read as applying also to Erzurum H-type Prison.

100. As already indicated in paragraph 84, the great majority of prisoners in the three prisons visited had access to an outdoor yard , attached to their living units, during daylight hours. ( ... ) Further, inmates held in admission cells in Erzurum H-type and Konya E-type Prisons had no access to the open air. ( ... )

During the end-of-visit talks, the delegation made an immediate observation and called upon the Turkish authorities to take measures at Erzurum E-type and H-type Prisons and Konya Prison to ensure that all prisoners are offered at least one hour of outdoor exercise per day, including at weekends ( ... )

101. By letter of 23 September 2009, the Turkish authorities informed the CPT that inmates held in the admission cells of Erzurum H-type Prison and in the infirmary, admission and disciplinary cells, as well as in the living units of E block in Konya Prison, were now being given access to the open air for at least one hour per day, including at weekends. The Committee welcomes this development.

(...)”

COMPLAINTS

Relying on, inter alia , Article 3 of the Convention, the applicant complains that he was subjected to a strict isolation regime in the Erzurum prison the physical characteristics of which were below the minimum standards expected from an institution of this kind.

In addition, the applicant submits that the Erzurum Prison did not provide any kind of social and cultural activity outside the prisoners ’ living units.

Furthermore, the applicant alleges a misuse of power by the prison authorities and submits that they were imposing disciplinary sanctions on prisoners who were expressing their dissatisfaction regarding the lack of activities in the Erzurum prison.

Finally, t he applicant complain s on the basis of Article 6 of the Convention that his petition regarding the lack of a programme of activities was rejected by national courts without holding a hearing.

Q UESTION S TO THE GOVERNMENT

1. Was t he applicant subjected to inhuman or degrading treatment or punishment, in breach of Article 3 of the Convention?

More particularly, did the alleged lack of cultural and social activities in the Erzurum Prison amount to inhuman and degrading treatment or punishment ( see the Report to the Turkish Government on the Visit to Turkey carried by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment from 4 to 17 June 2009, §§ 92-101, and the European Prison Rules, Rules 25-1 to 25-4, and 27-1 to 27-7 ) ?

The Government are requested to provide documentary evidence in support of their replies to the following questions.

a) What was the inmates ’ daily routine in the Erzurum Prison at the relevant time? How much time did they spend in their living units and how often and for how long did they enjoy outdoor exercise? What was the size of the exercise yard and did it have a roof?

b) What was the size of the “conversation places” ( sohbet odas ı )? How many inmates had access at the same time to the conversation groups and how often?

c) What kind of cultural and social activities were made available to the inmates in the Erzurum Prison? Did the applicant benefit from any kind of activity or training during his period of detention in the Erzurum Prison?

d) Did the applicant raise any objection to the programme of cultural and social activities? In the affirmative, what replies were given by the authorities?

e) Was the applicant subjected to any disciplinary sanction in the Erzurum Prison? In the affirmative, the Government are requested to submit all the documents relating to all the disciplinary sanctions imposed to the applicant.

2. Were the conditions of the applicant ’ s detention compatible with Article 8 of the Convention? In particular:

a) was there an unjustified interference with the applicant ’ s right to respect for his private life, within the meaning of Article 8 § 1 of the Convention?

b) if so, was that interference “in accordance with the law”, in terms of the relevant legal provisions being foreseeable in their application and was it “necessary in a democratic society”, as required by Article 8 of the Convention?

3. Was Article 6 § 1 of the Convention under its civil head applicable to the proceedings before the Erzurum Enforcement Court which examined the applicant ’ s complaints regarding the lack of activities in the Erzurum Prison (see Enea v. Italy [GC], no. 74912/01, §§ 97-107 , ECHR 2009 , Boulois v. Luxembourg [GC], no. 37575/04 , §§ 82-89, ECHR 2012 , Ganci v. Italy , no. 41576/98, § 25 , ECHR 2003 ‑ XI , Gülmez v. Turkey , no. 16330/02, § 30 , 20 May 2008 )? In particular, what was the “relevant legislation” on the basis of which the Enforcement Court issued its judgment of 3 December 2008?

Did the applicant have a fair hearing in accordance with Article 6 § 1 of the Convention, in view of the absence of an oral hearing at the Enforcement Court and the Erzurum Assize Court?

[1] . Programmes for these activities were drawn up every three months for groups of up to ten inmates. This often led to situations where newly-arrived inmates would wait for several weeks or months before they could be involved in any kind of activity.

[2] . Located at an altitude of 2,000 metres, the area is covered in snow for approximately three months during the winter.