JOINT DISSENTING OPINION OF JU D GES RAIMONDI AND KARAKAÅž

(Translation)

1. Unlike the majorit y , we are of the view that there has been no violation of A rticle 8 of the Convention.

2. At the outset, and to circumscribe our discussion, we would like to point out that , as the majority have in fact observed ( see paragraph s 36 and 42 of the judgment ), A rticle 8 of the Convention cannot be interpreted as guaranteeing prisoners the right to make telephone calls, in particular where facilities for contact by way of correspondence are available and adequate ( see A.B. v. the Netherlands , no. 37328/97, § 92, 29 January 2002, and Ciszewski v . Pol and ( d e c. ), no. 38668/97, 6 January 2004). In addition , where, as in the present case , telephone facilities are provided by the prison authorities, these may – having regard to the ordinary and reasonable conditions of prison life – be subjected to legitimate restrictions, for example, in the light of the shared nature of the facilities and the requirements of the prevention of disorder and crime ( see A.B. v . the Netherlands , cited above , § 93, and Coşcodar v . Ro mania ( d e c. ), no. 36020/06, § 30, 9 March 2010).

3. In the present case, we have no difficulty accepting that the restriction on the possibility for the applicants to communi cate by telephone with their relatives can be regarded as an interference with the exercise of their right to respect for their correspond e nce , within the meaning of A rticle 8 § 1 of the Convention. Like the majority, we are of the view that this interference was in accordance with the law and pursued a legitimate aim, namely the prevention of disorder or crime .

4. However, we are unable to agree with the majorit y ’ s assessment as to the necessity of the interference , and we do not think that the circumstances of the present case entail ed a finding that there had been a violation of A rticle 8 of the Convention.

5. It being an essential part of a prisoner ’ s right to respect for family life that the prison authorities assist him in maintaining contact with his close family ( see Messina v . Ital y ( no. 2) , no. 25498/94, § 61, ECHR 2000 ‑ X), we would observe that, in the present case, domestic law did enable inmate s to stay in contact with their relatives through telephone conversations . For security reasons , those conversations were regulated and could be monitor ed by the prison authorities. The fact that, for security reasons and in order to enable adequate supervision of telephone conversations, domestic law required inmate s to speak in Turkish , where they themselves and their relatives could communicate in that language , does not seem to us to be sufficient in itself to justif y the conclusion reached by the majority , especially as domestic law allowed this principle to be relaxed . We consider the existence of such flexibility to be of significan ce in the present case .

6. In that connection , it should be pointed out in particular that the domestic law did not contain any provisions prohibiting the use by inmate s of the Kurdish language or any language other than Turkish in their telephone conversations with their relatives . Rule 88/2 ( p) of the Rules [on the enforcement of sentences and preventive measures] , as in force at the relevant time , thus allowed those who so requested, subject to the prior completion of certain formalities ... , to speak on the telephone in a language other than Turkish . Under the Rules , a prisoner could thus be authorised to speak a language other than Turkish where it had been established that the prisoner himself or the person with whom he wished to speak did not understand Turkish.

7. The applicants called into question the Rules as such, arguing that the supervision of their telephone conversations in Kurdish was in itself incompatible with A rticle 8 of the Convention. The majority likewise appear to consider that no formality should be imposed on prisoners in this connection. We cannot agree with that approach , especially in view of the offences for which the applicants had been convicted ( see in that connection the Government ’ s observations in paragraph 43 of the judgment ). In the circumstances of the case, we are of the view that when the competing interests at stake , namely the right of prisoners to respect for their correspond e nce and the need for the authorities to maintain security in prisons and prevent crime , are weighed up, there is no appearance of any unreasonable imbalance in the impugned Rules .

8. Accordingly, we are of the view that the supervision of the applicants ’ telephone conversations was not in itself a disproportionate measure ( for a similar approach , see Baybaşın v . the Netherlands ( d e c. ), no. 13600/02, 6 October 2005). In this connection, we find in particular that there is nothing to suggest that there was any arbitrariness in the conducting or the conditions of implementation of the procedure which, in domestic law as it then stood , enabled inmate s to obtain permission to use a language other than Turkish .

9. Lastly, unlike the majority, we are of the view that the grounds justifying the inadmissibility decision in Baybaşın ( cited above ) were perfectly transposable to the present case , which did not justify a different approach in our opinion . W e would point out that the rules in issue in Baybaşın were far more restrictive than those examined in the present case : under the Dutch rules assessed by the Court in Baybaşın , prisoners were only allowed to use certain specifically designated languages (Dutch, English, French, German, Spanish, Italian, Turkish or Moroccan) . As the applicant in that case could speak Turkish he had not been allowed to use Kurdish in conversations with his family, and the Court did no t find this fact to be incompatible with the Convention.