SECOND SECTION

Application no. 33496/09 Ceylan GÃœRBÃœZ against Turkey lodged on 2 June 2009

STATEMENT OF FACTS

The applicant, Mr Ceylan Gürbüz , is a Turkish national, who was born in 1971 and lives in Izmir .

A. The circumstances of the case

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

On 19 June 2008 the Directorate of Prisons of the Ministry of Justice issued an order providing for the transfer the applicant, a convict, from the Burdur E-type Closed Prison, where he had been serving his sentence, to the Alanya L-type Closed Prison (“ Alanya Prison”). The Directorate noted that the applicant was to be held in the high security section of the latter prison upon his transfer.

Subsequently, the applicant was placed in a single-person cell, which according to his allegations was no bigger than 4 m ² .

1. Applicant ’ s objections with regard to his detention in a single ‑ occupancy cell

On 2 July 2008 the applicant filed an objection the Alanya Enforcement Court judge and objected to his transfer to a single-occupancy cell.

On 7 July 2008 the Enforcement Court rejected the applicant ’ s objection, indicating that he had been transferred to the high security section for safety reasons, pursuant to the order of the Directorate of Prisons and in line with Article 8 (1) of Circular no. 45/1, pertaining to the transfer of convicts and detainees.

On the same day the applicant applied to the Enforcement Court for a second time, this time requesting his transfer to an 8 m ² cell.

On 11 July 2008 the court rejected that request, repeating the reasoning in its previous decision.

The applicant filed another objection on 1 August 2008.

Nevertheless, on 5 August 2008 the Enforcement Court held that there was no need to deliver a new decision as the applicant ’ s objections on the same matter had already been rejected by two decisions before.

Finally, on 19 August 2008 the applicant applied to the Enforcement Court for the fourth time, arguing that his solitary confinement, which had lasted for a period of fifty-five days, was not justified and that it must end. He added that he had had a heart attack in 2004 but had been placed in a single-occupancy cell without having been examined by a doctor and despite his heart condition.

On 28 August 2008 the Enforcement Court rejected that objection as well. The court maintained that according to the information provided by the Alanya Prison Administration, the applicant was detained not in solitary confinement but in a single cell located in the high security section of the prison . It stated that the applicant, who suffered from diabetes, hypercholesterolaemia and hypertension, did not have a medical report indicating that he could not be held in a cell and that he received the required medicines for his medical conditions. The court further noted that the applicant ’ s cell was kept under twenty-four-hour video surveillance and that the applicant had a call button at his disposal in the cell for urgent situations.

According to the applicant ’ s allegations, he objected to the decisions of the Alanya Enforcement Court but was not informed of the outcome of the procedure.

In the meantime, on 26 August 2008 the applicant filed a criminal complaint with the Alanya public prosecutor ’ s office, reiterating the claims he had raised before the Alanya Enforcement Court. He claims not to have received any response.

2. Applicant ’ s objections concerning the water cuts at the Alanya Prison

On 13 and 19 August 2008 respectively, the applicant filed two objections with the Alanya Enforcement Court, complaining that the Prison Administration had deliberately cut his water supply in order to subject him to inhuman treatment.

By two decisions dated 21 and 26 August 2008 respectively, the court rejected those objections as it found that the water cuts, which had resulted from a malfunction in the municipal water network, had affected the whole of the city and had ended following the repair of the malfunction.

B. Relevant domestic law

Article 9 of the Law n o. 5275 on the Execution of Penalties and Security Measures reads as follows:

“Article 9 - High-security closed prisons

(1) High-security closed prisons are facilities which have internal and external security personnel, which are equipped with technical, mechanical, electronic and physical barriers against break-out, in which the doors of cells and corridors are kept closed permanently, where contacts between convicts who are not staying in the same cells and with the outside are allowed only in cases specified in the legislation, and where convicts under the strict security regime are accommodated in single or three ‑ person cells . In such institutions, individual or group rehabilitation methods shall apply.

(2) Persons sentenced to heavy life imprisonment and, irrespective of the length of imprisonment, persons convicted of establishing or leading a criminal organisation or persons convicted within the framework of the activities of such a criminal organisation of:

a) Crimes against humanity (Articles 77 and 78);

b) Intentional killing (Articles 81 and 82);

c) Drug trafficking (manufacture, distribution and sale) (Article 188);

d) Crimes against the security of the State (Articles 302, 303, 304, 307 and 308);

e) Crimes against the constitutional order and its functioning (Articles 309 to 315)

set out in the Turkish Criminal Code, shall serve their sentences in these prisons.

(3) Those who pose a danger in view of their actions and attitudes; those whose placement under special control and supervision is considered necessary; those who upset the order and discipline in the institutions in which they are detained; or those who persistently resist the rehabilitation measures, means and methods shall be transferred to these institutions.

(4) In cases in which the capacity of the institutions defined in the first paragraph is insufficient to meet the need, the high-security sections of other closed prisons shall be used.

(5) It may be decided to transfer those who were sentenced to life imprisonment but have served two thirds of the period required for release on probation; those who were sentenced to imprisonment but have served one third of the total sentence; those who were transferred to these institutions by virtue of the third paragraph, after having served one third of the rest of the sentence, maintaining good behaviour in these institutions, to other penal execution institutions suitable for their attitudes and characters.”

Circular no. 45/1 dated 22 January 2007 was issued pursuant to Law no. 5275 in order to classify the types of prisons and to indicate the procedures to be followed with regard to, inter alia , the transfer and safety of convicts and detainees and security measures. Article 8 (1) of the Circular reads as follows:

“Article 8 – Transfer due to necessity

(1) Those whose transfer to other prisons is deemed necessary due to obligations such as the inadequacy of prisons, insufficiency of their capacity, extensive repair work, fire or natural disaster or for security reasons, shall be transferred to other prisons suiting their situations determined by the Ministry of Justice.”

COMPLAINTS

The applicant complains under Article 3 of the Convention that he was subjected to inhuman and degrading treatment at the Alanya Prison as a result of his solitary confinement which lasted for a period of sixty days without there being any judicial decision to that effect . He further alleges that he was ill-treated by the Alanya Prison Administration, who did not give him water for a period of three days and that as a result he suffered from a urinary infection, for which he received no treatment.

The applicant further argues that he could not have his complaints examined effectively by domestic authorities.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention , in respect of his complaint relating to his placement in a single-occupancy cell in the Alanya L-type Closed Prison (“ Alanya Prison”)?

2. Has the applicant complied with the six-month period? In this connection, when did the applicant ’ s detention in the single-occupancy cell end?

3 . Did the conditions of the applicant ’ s detention in the Alanya Prison amount to inhuman or degrading treatment in violation of Article 3 of the Convention?

(a) What were the reasons for his transfer to the high security section of the Alanya Prison ?

The Government are requested to submit the order of the Directorate of Prisons of the Ministry of Justice dated 19 June 2008, upon which the applicant was transferred to the Alanya Prison and placed in its high security section.

(b ) Did the applicant have a ny contact with other prisoners, prison staff and/or any other person such as his lawyer? If so, how often?

(c ) Was the applicant allowed to use a television or radio or to buy newspapers?

( d) Was he allowed to perform outdoor exercise s and/or attend social activities? If so, how often?

The parties are requested to provide the Court with information about the physical conditions of the single-occupancy cell , including its measurements, cleanliness and whether it was well lit.

4. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 3 concerning the conditions of his detention , as required by Article 13 of the Convention?

The Government are requested to inform the Court of the decisions taken following the applicant ’ s criminal complaint lodged by the Alanya public prosecutor ’ s office on 26 August 2008.