Legal summary

July 2023

Osman and Altay v. Türkiye - 23782/20 and 40731/20

Judgment 18.7.2023 [Section II]

Article 10

Article 10-1

Freedom to receive ideas

Freedom to receive information

Withholding of periodicals sent to prisoners by post without going through prison administration as required by law: violation

Facts – The applicants, who were prisoners in two different prisons at the relevant time, were refused delivery by the prison authorities of four issues of a periodical that had been sent to them by post without having been lawfully ordered or purchased through the prison administration.

The Constitutional Court declared the applicants’ individual applications inadmissible as manifestly ill-founded.

Law – Article 10:

The national authorities’ refusal to deliver the issues of the periodical in question to the applicants constituted an interference with their right to receive information and ideas. Such interference was provided for by law and pursued the legitimate aims of protecting national security and of preventing disorder or crime.

As to the necessity of the interference, the Constitutional Court had developed two separate lines of authority concerning publications received in prisons, the principles applicable to which varied depending on the manner in which they were obtained.

A first line of authority had been established in its Halil Bayik judgment (30 November 2017), which had laid down the criteria that the prison authorities were to take into account when inspecting publications that had been sent to prisoners in compliance with the statutory procedure, namely publications purchased by prisoners through the prison administration, works issued by official bodies or by certain organisations, writings allocated to the prison library, books received as gifts on specific dates and schoolbooks. Those criteria had subsequently been confirmed by the Constitutional Court in its Recep Bekik judgment (27 March 2019). It followed from these two judgments that the prison authorities were required to conduct a detailed analysis of the content of publications sent to prisoners and to determine whether that content justified or glorified recourse to acts of violence or might incite violence, pose a threat to security, discipline or order in the prison, or facilitate communication between members of criminal organisations, regard being had, in particular, to the relevant prisoners’ specific personal situations and to the prevailing level of tension, if any, within the country and within the prison in question at the relevant time. The prison authorities were further to consider potentially removing passages from the publications regarded as problematic in order to deliver the remainder to the prisoner concerned.

In its Mehmet Çiftçi v. Turkey judgment, the Court had endorsed those principles as articulated by the Constitutional Court to prevent potential abuse on the part of the prison authorities, in line with one of the aims posited in its own case-law.

The Constitutional Court had laid down a second line of authority in its İbrahim Kaptan (2) judgment (12 September 2018) with regard to publications that were sent to prisoners in breach of the statutory procedures, namely those delivered by post or by visitors, without going through the administration. The Constitutional Court had observed that prisoners could access publications by various other means provided for by law and that such publications had to be subjected to rigorous and detailed examination – in accordance with the principles laid down in the two judgments cited above – before any measure to withhold them could be taken. It had then found that the burden such an examination represented, regard being had to the large number of prisoners, might prevent the prison administration from carrying out its other tasks. It had therefore taken the view that the refusal to deliver publications that had been sent in breach of the statutory procedures aimed to protect the security of the establishment and prevent crime, met a pressing social need, and was not disproportionate to the aim thereby pursued.

Since prisoners continued to enjoy the right to receive information and ideas in prison, any restriction of that right had to meet a “pressing social need”. Furthermore, the Contracting States had a certain margin of appreciation in assessing whether such a need existed, but it went hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court.

In the present case, the Constitutional Court had referred to its Ä°brahim Kaptan (2) judgment, in which it had essentially relied on the workload involved in inspecting the publications in question, and on the need to prevent members of terrorist organisations from communicating with one another, to find that the refusal to deliver such publications to prisoners, which constituted a restriction of their right to receive information and ideas, had met a pressing social need.

The reference to that judgment appeared to suggest that the publications sent to the applicants had been justifiably withheld, not on the basis of an assessment of their dangerous content, but merely because they had been received by the postal services in breach of the statutory procedures. However, the arguments contained in the decisions had been rather succinct in that regard. Moreover, in intercepting the publications at issue, the education committees of both prisons had expressly referred to the provision that authorised the inspection of a publication’s content and, according to their decisions, the publications in question had been withheld because they had been deemed to pose a threat, considering their content, to prison security. The publications sent to the applicants were thus subject to content-based inspection, which was to have been carried out in compliance with the criteria set forth in the Constitutional Court’s first line of reasoning prior to any measure to have them withheld. Accordingly, the prison authorities were required to issue decisions containing satisfactory and sufficiently detailed reasons, with the inadmissible passages of the impugned publication expressly identified and subjected to an analysis demonstrating a concrete connection between the censored content and the aforementioned criteria. It therefore did not suffice to merely list the page references for the parts of the impugned publication that were deemed problematic and, in any event, an inspection method taking the relevant criteria into account had to be used.

In the present case, the prison authorities’ education committees had justified their decisions having regard to a potential threat to prison security resulting from the spread of hunger strikes undertaken by certain prisoners in other prisons, the promotion of illegal organisations and their activities and the incitement of violent acts. The Court agreed that those considerations could, in general and in the final analysis, be regarded as constituting acceptable reasons to justify a refusal to deliver the impugned publications to the applicants. However, neither the education committees’ decisions nor those subsequently delivered by the domestic courts enabled it to establish that, in the present case, those bodies had appropriately weighed in the balance – in compliance with the criteria established by the Constitutional Court’s first line of reasoning and with those laid down by the Court – the applicants’ right to freedom of expression and the other interests at stake, such as maintaining order and discipline in prisons. For although the education committees had given references to the pages of the periodical containing the impugned passages, they had in no way, not even summarily, specified the content they regarded as problematic. Nor had they made any reference to the applicants’ personal situations with a view to assessing the potential effect of those passages on the individuals concerned. Moreover, the decisions subsequently delivered by the enforcement judges and the assize courts, which had rejected the applicants’ appeals on the grounds that the initial decisions had complied with the requisite procedure and the law, had failed to give sufficient reasons to make up for those omissions. As to the Constitutional Court, it had declined to examine the prison authorities’ refusals in the light of those principles and had decided to apply the findings of its second line of reasoning to the applicants’ individual applications, thereby approving the principle of systematically withholding publications that were sent to prisoners in breach of the statutory procedures. Such an approach was incompatible with Article 10 of the Convention.

The authorities had thus confined themselves to stating the findings they had reached concerning the impugned publications and had failed to provide any satisfactory reasons for their decisions, which had been devoid both of any argument establishing a link to the impugned content or justifying those findings with reference to the criteria set out in either the Court’s or the Constitutional Court’s case-law, and of any considerations as to the potential delivery of the periodicals to the applicants upon removal of the passages that were deemed problematic.

The national authorities, in the decisions rendered, did not appear to have satisfied the requirement that the different interests at stake in the present case be weighed up, or to have fulfilled their duty to prevent any abuse on the part of the administration.

In the light of the foregoing, the Government had failed to demonstrate that the reasons adduced by the national authorities to justify the impugned measures had been relevant and sufficient or that those measures had been necessary in a democratic society.

Conclusion : violation (by five votes to two).

Article 41: claim in respect of pecuniary damage rejected; EUR 1,000 awarded in respect of non-pecuniary damage.

(See also Mehmet Çiftçi v. Turkey , 53208/19 , 16 November 2021)

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

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