Information Note on the Court’s case-law 230

June 2019

Mehmet Reşit Arslan and Orhan Bingöl v. Turkey - 47121/06, 13988/07 and 34750/07

Judgment 18.6.2019 [Section II]

Article 2 of Protocol No. 1

Right to education

Inability for prisoners to use a computer or to access the Internet for their higher-education studies: violation

Facts – In June 2006 the two applicants, who were serving prison sentences for te rrorist activities, sat an entrance examination for two higher-education institutions. The first applicant was admitted, for the academic year 2006/2007 to the economics-management faculty, which provided distance education. The second applicant had obtain ed a mark which entitled him to a place in an institution of higher education, even though he did not enrol for the academic year 2006/2007.

In that context, and relying on the relevant legislation, the two applicants asked to be able to use a computer wit h Internet access in the rooms specially designated by the prison authorities in order to pursue their higher education. The first applicant also asked if he could use a calculator-translator device in his cell. Their requests were denied by the prison aut horities. Their appeals against those decisions were unsuccessful.

Law – Article 2 of Protocol No. 1

(a) Scope of the first sentence of Article 2 of Protocol No. 1 – The requests that the applicants submitted to the prison authorities had concerned the us e of audiovisual materials and computers or electronic devices, with the aim of preparing for admission to university or pursuing their higher education. Consequently, it was of no importance whether or not the second applicant had already enrolled on a co urse. Both applicants intended to continue their higher education in institutions providing remote learning and they had supported their request by the fact that they had sat entrance examinations in 2006 for admission to relevant institutions.

Turkish leg islation allowed convicted prisoners to continue their studies in prison to the extent of the prison’s resources. In particular, prisons had an obligation not to prevent access to an educational activity made available internally. In this connection, under section 67(3) of Law no. 5275, the use of audiovisual training resources and computers, with Internet access, were authorised under supervision in rooms set aside for that purpose by the prison authorities in the context of rehabilitation programmes or tr aining courses. That possibility constituted an indispensable material means to ensure the genuine exercise of the right to education, since it enabled the prisoners to prepare for examinations to be admitted to higher-education institutions and potentiall y to pursue their studies. According to the Court’s settled case-law, access to educational institutions existing at any given time was an integral part of the right enshrined in the first sentence of Article 2 of Protocol No. 1. It followed that the compl aint in question fell within the scope of that Article.

(b) Merits – Domestic law allowed prisoners to use a computer and the Internet under certain conditions. That use could nevertheless be subject to the supervision of the prison authorities and be res tricted for more dangerous individuals or those sentenced for being members of an illegal organisation. The resulting limitation of the applicants’ rights had thus been prescribed by law and could pursue the legitimate aims of the prevention of disorder or crime.

The manner of regulating access to audiovisual training materials, computers and the Internet fell within the Contracting State’s margin of appreciation. The prisons in the present case had the means to provide their inmates with the possibility a fforded by the law. Moreover, no concrete justification for the lack of resources of the prisons in question had been put forward in the domestic proceedings or before the Court.

Moreover, the prisoners’ desire to benefit from the possibility afforded by the relevant legislation stemmed from their wish to pursue their studies.

The denial of the first applicant’s request to use an electronic device with calculation and English-Turk ish translation functions in his cell had been justified, especially as the use of that device had been authorised under supervision in a room that was to be indicated by the prison authorities.

Concerning the access to computers and to the Internet, even though the security considerations relied upon by the national authorities and the Government concerning the terrorist applicants could be regarded as relevant, the national courts had not carried out any detailed analysis of the security risks and had fa iled both to weigh up the various interests at stake and to fulfil their duty to prevent any abuse of power on the part of the administration. In those conditions, the Court was not persuaded that sufficient grounds had been put forward to justify the auth orities’ decisions to deny the rights established by section 67(3) of Law no. 5275.

Similar omissions also prevented the Court from effectively exercising its European supervision as to the question whether the national authorities had applied the standard s established by its case-law concerning the balancing of the interests at stake.

Thus the domestic courts had not struck a fair balance between the applicants’ right to education and the imperatives of public order.

Conclusion : violation (unanimously).

Article 41: finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage; claim in respect of pecuniary damage dismissed.

(See also Velyo Velev v. Bulgaria , 16032/07, 27 May 2014, Information Note 174; Kalda v. Est onia , 17429/10, 19 January 2016, Information Note 192; and Jankovskis v. Lithuania , 21575/08, 17 January 2017, Information Note 203)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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