SECOND SECTION

Application no. 20616/13 Ethem SAKÄ°N against Turkey lodged on 4 March 2013

STATEMENT OF FACTS

The applicant, Mr Ethem Sakin , is a Turkish national, who was born in 1961. He is currently in detention at the Ä° zmit T-Type Prison, pending the criminal proceedings against him .

A. The circumstances of the case

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

1. Conditions of the applicant ’ s detention

On 4 January 2010 the applicant was taken into pre-trial detention at the Bilecik M-Type Prison (“the Bilecik Prison”), pending the criminal proceedings against him on the charge of murder. As a non-smoker, the applicant requested to share a cell ( koğuş , a multi-occupancy living unit) with other non-smokers. He was, nevertheless, allocated to a smoking cell, which moreover accommodated convicts as well as remand prisoners.

It appears that the applicant lodged a number of complaints with the relevant domestic authorities, including the prison administration, the General Directorate of Prisons and Detention Centres of the Ministry of Justice (“the General Directorate”) and the Bilecik Public Prosecutor, over the years concerning his d etention with convicted persons contrary to the relevant legal provisions, as well as his detention with smokers. He also complained of the failure of the prison authorities to separate the prisoners according to their type of crime, which led to his sharing cells with thieves, drug dealers and sexual offenders despite his protests .

On 9 May 2012 , in response to a letter of complaint from the applicant, the General Directorate ordered that the applicant be detained “in accordance with his status”.

B etween 4 January 2010 and 9 August 2012, the applicant ’ s cell was changed five times for administrative reasons. It appears that a t least two of th o se changes were demanded by the applicant himself following conflicts with certain cell mates.

On 9 August 2012 the applicant was eventually placed in a non-smoking cell. However, on 17 October 2012 he was moved again to a smoking cell.

On 26 December 2012 the applicant was transferred to the Çanakkale E ‑ Type Prison (“ Çanakkale Prison”) and was placed in a cell which accommodated a total of twelve inmates in an area that measured 4.5 x 4.5 metres, where the inmates slept in triple bunk beds.

On 30 May 2013 the applicant sent a complaint to the General Directorate regarding the cramped living conditions at the Çanakkale Prison. In response, on 18 June 2013 the General Directorate sent a letter to the Çanakkale Public Prosecutor, to be communicated to the applicant, indicating that according to their records, the prison in question had a capacity of 704 prisoners and accommodated only 647 prisoners at that moment. It did not, however, refer to the rate of occupancy in individual cells or their surface areas. The General Directorate also asked the public prosecutor to report any opinions or suggestions on the alleged physical shortcomings at the Çanakkale Prison, including a request for allocation of more funds if needed.

Upon receiving the information provided by the General Directorate, on 27 June 2013 the applicant wrote a letter of reply, claiming that the figures provided did not reflect the real capacity of the prison, but the overinflated capacity that resulted from the use of triple bunk beds.

In the meantime on 11 and 24 June 2013 the applicant sent similar complaint letters to the Çanakkale Prison Supervisory Board, which in its response of 9 July 2013 informed the applicant that his complaints would be taken into consideration at their next visit to the prison in question.

On 23 August 2013 the applicant lodged an individual application with the Constitutional Court, by post, to complain about the overcrowding problem at the Çanakkale Prison.

On 29 August 2013 he was informed that his application could not be registered, as it did not comply with the individual application procedure. The letter explained that according to Section 47 § 1 of the Law no . 6216 (on the Establishment and Rules of Procedure of the Constitutional Court of Turkey), individual applications could only be filed directly with the Constitutional Court in person, or through local courts or representations abroad, but in any event not by post as the applicant had done.

On an unspecified date the applicant was transferred to the Ä° zmit T ‑ Type Prison.

2. Criminal proceedings against the applicant

On an unspecified date in 2011 the Bilecik Assize Court found the applicant guilty of three counts of murder. The applicant appealed against this judgment.

It appears that the appeal proceedings are still pending before the Court of Cassation.

B. Relevant domestic law

1. Law no. 5275 on the Enforcement of Sentences and Preventive Measures

The relevant sections of the Law no. 5275 on the Enforcement of Sentences and Preventive Measures provide as follows:

“Accommodation of convicts

Section 63

...

(3) ... convicts and remand prisoners shall not be authorized to get together and contact [one another], save for the circumstances specified in the Law.

...

Institutions where detention orders are executed

Section 111

(1) Remand prisoners shall be held in ... detention centres or, in the absence of sufficient financial resources, in specifically allocated areas of other closed prisons.

...

Accommodation of remand prisoners

Section 113 (1) Remand prisoners shall be accommodated in separate rooms in accordance with the type of crime [they are charged with] and the security risk they pose, as much as financially possible.

...”

2. Law no. 6216 on the Establishment and Rules of Procedure of the Constitutional Court of Turkey

The detailed rules governing the procedure of individual application to the Constitutional Court under Law no. 6216 on the Establishment and Rules of Procedure of the Constitutional Court of Turkey can be found in the case of Hasan Uzun v. Turkey (( dec. ), no. 10755/13, §§ 14 ‑ 25, 30 April 2013).

COMPLAINTS

Without citing any particular provisions of the Convention, the applicant complains that the conditions of his detention at the Bilecik M-Type Prison amounted to “psychological torture”. He complains in particular of the prison authorities ’ failure to se parate smokers from non-smokers and remand prisoners from convicts when allocating the cells . He also complains of the absence of a practice to group the prisoners according to their types of crime, which led to his sharing a cell with drug dealers, sexual offenders and thieves, including with a person who had assaulted the daughter of a friend of his.

The applicant further alleges that his cell at the Çanakkale E-type Prison, where he was subsequently transferred, was overcrowded, accommodating twelve in mates in an area of 4.5 x 4.5 metr e s, which also put a significant psychological strain on him.

In a letter submitted on 13 September 2013 the applicant also maintains that the stringent procedural conditions for filing an individual application with the Constitutional Court, including the obligation to introduce applications individually (i.e. not by post) within a very limited 30-day time-limit, prevented him from bringing his complaints before that court, considering that he had no lawyer or family outside the prison to assist him with that procedure. He also complains of the high application fee (approximately 74 euros (EUR)), which he claims he cannot afford.

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to inhuman and degrading treatment in breach of Article 3 of the Convention on account of the material conditions of his detention at the Çanakkale E-Type and Bilecik M-Type Prisons, in particular due to the overcrowding of his cell in the former and being forced to share with smokers in the latter (see Florea v. Romania , no. 37186/03, § 60, 14 September 2010 ; and Aden Ahmed v. Malta , no. 55352/12, § 87 , 23 July 2013 )?

T he Government are invited to submit information and material outlining the regulation on smoking in Turkish prisons. They are further invited to submit detailed information as to the applicant ’ s conditions of detention at the Çanakkale E-Type and Bilecik M-Type Prison s , in particular as to how long he had to share cells with smokers, whether his health deteriorated on account of staying in smoking cells, whether smoking was allowed in communal areas, the size and occupancy of the different cells he stayed in, how much time he was allowed to spend in open air , the availability of ventilation, access to natural light and air and compliance with basic sanitary requirements .

2 . Was the applicant detained together with convicts at the Bilecik M ‑ Type Prison, contrary to the terms of Law no. 5275 on the Enforcement of Sentences and Preventive Measures (“Law no. 5275”) and, if so, why? Did this alleged irregularity in the applicant ’ s detention give rise to a breach of Article 3 of the Convention in substance? Moreover, was the applicant subjected to a more strict detention regime as a result of this practice? Did the lack of separation of prisoners according to their type of crime put a disproportionate psychological strain on the applicant?

3. a. Were there any judicial remedies available to the applicant in relation to his above complaints and, in particular, was the applicant required to raise these complaints before the Constitutional Court ( Hasan Uzun v. Turkey (dec.), no. 10755/13, 30 April 2013 )?

b. Were there any procedural or practical obstacles before the applicant that prevented him from accessing the Constitutional Court and that impaired the essence of the right to a court under Article 6 § 1 of the Convention (see ÄŒamovski v. Croatia , no. 38280/10, § § 35 ‑ 37, 23 October 2012 )?

The Government are requested to submit information on the modalities of lodging an individual application with the Constitutional Court from a prison and the circumstances in which an individual can request legal aid .

The Government are invited to support their responses with concrete examples, including by submission of sample cases involving individual application s to the Constitutional Court by prisoner s and the successful grant of legal aid to persons seeking to use that remedy .