CASE OF BAYSAL v. TÜRKİYE

SECOND SECTION

CASE OF BAYSAL v. TÜRKİYE

(Application no. 1162/20)

JUDGMENT
 

STRASBOURG

12 November 2024

This judgment is final but it may be subject to editorial revision.

In the case of Baysal v. Türkiye,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

 Jovan Ilievski, President,
 Diana Sârcu,
 Gediminas Sagatys, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 1162/20) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 16 December 2019 by a Turkish national, Mr Mustafa Baysal (“the applicant”), who was born in 1969, was detained in Istanbul and was represented by Ms G. Kaygusuz, a lawyer practising in Aydın;

the decision to give notice of the complaint concerning Article 10 of the Convention to the Turkish Government (“the Government”), represented by their then Agent, Mr Hacı Ali Açıkgül, former Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare inadmissible the remainder of the application;

the observations submitted by the Government and the interest expressed by the applicant in pursuing the application;

the decision to reject the Government’s objection to the examination of the application by a Committee;

Having deliberated in private on 15 October 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns the refusal of the prison administration to deliver an English book to the applicant.

2.  At the time of the events giving rise to the present application, the applicant was detained in Silivri Prison No. 7 on charges of membership of an armed terrorist organisation described by the Turkish authorities as the “Fetullahist Terror Organisation/Parallel State Structure” (“FETÖ/PDY”).

3.  On 13 February 2017 the Education Board of Silivri Prison No. 7 withheld a book entitled “Kosovo: A Short History” sent to the applicant by his relatives, stating that it was in English and not a textbook.

4.  On 6 April 2017 the applicant was transferred to Silivri Prison No. 6 along with his belongings, including the book.

5.  On 10 April 2017 the Education Board of Silivri Prison No. 6 (“the Board”) conducted another review and also decided to withhold the book, stating that the prison administration could not monitor its content or assess whether it complied with relevant legislation as the book was not in Turkish and the institution had no personnel available to translate it. The Board suggested that the applicant could have the book translated at his own expense so that it could be reviewed.

6.  The applicant lodged an objection against the Board’s decision with the Silivri enforcement judge. On 25 April 2017 the judge dismissed the request, relying on section 62 of Law no. 5275 on the Execution of Sentences and Preventive Measures and sections 87 § 3 and 43 § 1 of the Regulation on the Management of Prisons.

7.  The Assize Court also rejected the applicant’s challenge to the decision, affirming that it was in accordance with the law and procedure.

8.  In a summary judgment of 24 October 2019, the Constitutional Court declared the individual application lodged by the applicant inadmissible as being manifestly ill-founded. The judgment was notified to the applicant on 11 November 2019.

9.  According to the documents submitted by the Government after the communication of the present application, the book in question was delivered to the applicant on 19 February 2021.

10.  Section 62 of Law no. 5275, as it read at the material time, provided as follows:

“(1)  A convicted prisoner may purchase periodical or non-periodical publications at his or her own expense provided that they are not banned by a court order.

(2)  (...) The textbooks of convicted prisoners who continue their education and training shall not be subject to inspection.

(3)  No publication shall be handed over to a convicted prisoner which contains news, photographs or editorials that jeopardise the security of the prison or are obscene.”

11.  Section 87 § 3 of the Regulation on the Management of Prisons read as follows:

“Publications found by the education board to jeopardise the security of the institution or to contain unsafe news, articles, photographs, or comments shall not be given to convicted prisoners.”

12.  Section 43 § 1 of the same regulation is worded as follows:

“The Education Board is responsible and authorised to carry out the following tasks: (...)
To determine whether any publications received by the institution jeopardise its security or include necessary news articles, photographs, and comments.” (...)

13.  The applicant complained of a violation of his right to receive and impart information under Article 10 of the Convention on account of the refusal of the prison authorities to hand over the English book sent to him by his relatives.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

14.  The Government raised several preliminary objections as to the admissibility of the application.

15.  First, they argued that the complaint should be rejected for having been introduced outside the six-month time-limit laid down in Article 35 § 1 of the Convention. In that connection, the Government maintained that the initial decision about the book in question was taken by the Education Board of Silivri Prison No. 7 on 13 February 2017. Since no objection had been filed against that decision, it became final on 2 March 2017; however, the present application was not lodged with the Court until 16 December 2019.

16.  Alternatively, the Government invited the Court to reject the applicant’s complaints for non-exhaustion of domestic remedies. They asserted that the applicant should have filed objections with the enforcement judge following the 13 February 2017 decision of Silivri Prison No.7, which he failed to do.

17.  The Government further argued that the applicant lacked victim status because the book in question was eventually delivered to him on 19 February 2021. They also noted that the domestic legislation had been amended on 14 April 2020, granting the Ministry of Justice the authority to accept newspapers and magazines published in a foreign language in prisons.

18.  The Government also contended that the applicant had not suffered a significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention given that he nonetheless had access to other books and periodicals, and he did not provide a compelling reason for why he needed to read the book in English.

19.  Lastly, the Government submitted that the applicant had the right to request any book through the administration and could have covered the costs for its translation and that the application should therefore be dismissed as manifestly ill-founded.

20.  The applicant did not comment on the Government’s objections within the time-limit set by the Court.

21.  In respect of the Government’s objections concerning (i) non‑compliance with the six-month time-limit and (ii) the non-exhaustion of domestic remedies, the Court notes that on 10 April 2017 the Education Board of Silivri Prison No. 6 a issued a fresh decision regarding the same book, to which the applicant objected and duly exhausted all available domestic remedies before lodging the present application with the Court (see paragraphs 5-8 above) in compliance with the six-month rule.

22.  Moreover, the Court observes that none of the domestic courts, including the Constitutional Court, considered that the applicant had not complied with the requirement to exhaust the domestic remedies available to him.

23.  In the light of the above, the Court concludes that there are no grounds to dismiss the applicant’s complaints for failure to comply with the requirements of Article 35 § 1 of the Convention on the basis of the first two objections raised by the Government.

24.  In respect of the Government’s objection regarding lack of victim status, the Court reiterates that a decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III, and Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI).

25.  In the present case, the Court notes at the outset that the applicant was unable to receive the impugned book for some four years (see paragraph 9 above). It also notes that the domestic authorities have never acknowledged, either expressly or in substance, the violation of the Convention alleged by the applicant. Nor could the change in the domestic law be interpreted as acknowledging, in substance, that the applicant’s right to freedom of expression had been breached (compare also Pryanishnikov v. Russia, no. 25047/05, §§ 46-47, 10 September 2019). Moreover, no redress has been offered to the applicant for the delay in handing over the book. Therefore, the Court holds that the applicant may claim to be the victim of the alleged violation of the right to freedom of expression.

26.  In respect of the Government’s objection about the lack of significant disadvantage, the Court notes that, despite the applicant’s access to other sources of information in prison, he was denied the specific book in question, which is the central issue of the present case. It thus considers that the applicant’s access to publications and the prison library is unrelated to the withholding of the specific book and did not alleviate its negative effects (compare also, mutatis mutandis, Kop v. Türkiye [Committee], no. 47404/20, § 10, 21 March 2023). Furthermore, taking into account the fact that this is the first application introduced concerning the interception of an English book in the prison context, the Court concludes that the application requires an examination on the merits. Consequently, the Court rejects the Government’s objection based on Article 35 § 3 (b) of the Convention.

27.  Finally, the Court considers that the arguments presented by the Government in support of the alleged manifestly ill-founded nature of the application raise issues requiring an examination of the merits of the complaint under Article 10 of the Convention, rather than an examination of its admissibility (Osman and Altay v. Türkiye, nos. 23782/20 and 40731/20, § 34, 18 July 2023, and Mehmet Çiftçi v. Turkey, no. 53208/19, § 26, 16 November 2021).

28.  The Court notes that this application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

29.  In the instant case, as regards the existence of an interference with the right to freedom of expression, the Government argued that the prison authorities did not categorically prohibit the delivery of the book to the applicant, but rather indicated that it could be delivered following necessary translation. They further argued that the book was eventually delivered to the applicant after amendments to the legislation.

30.  The Court notes that it is not in dispute that the prison authorities refused to hand over the impugned book to the applicant, and that the courts concerned upheld those decisions (see paragraphs 5-8 above). It further observes that the book was withheld from the applicant for some four years, which constitutes a significant delay.

31.  In the light of the foregoing, the Court concludes that such a practice by the prison authorities constituted an interference with the applicant’s right to receive information under Article 10 of the Convention (see Mesut Yurtsever and Others v. Turkey, nos. 14946/08 and 11 others, § 102, 20 January 2015).

32.  As to the justification of the interference, the Government argued that the interference was provided for by law and that the State was under no obligation to cover the cost of translating prisoners’ publications, as no such obligation was stipulated in the Convention.

33.  The Court observes that it has previously examined a similar case in which it found a violation of Article 10 of the Convention (see Mesut Yurtsever and Others, cited above). In that case, the Court held that the refusal to deliver certain editions of a Kurdish daily newspaper to prisoners violated their rights under Article 10 of the Convention, as the decisions of the domestic authorities were not based on any lawful grounds specified in domestic law (ibid., §§ 104-11).

34.  The Court further observes that, at the time of the events in question in the present case, the domestic laws governing control over prisoners’ access to publications gave an exhaustive list of the circumstances in which a publication could be withheld by the prison authorities. According to these criteria, publications could only be withheld if they were banned by a court order, contained news, photographs or editorials that jeopardised the security of the prison or were obscene (see paragraphs 10-12 above).

35.  Examination of the domestic court decisions, however, reveals that the decisions not to hand over the impugned book to the applicant were based on none of the above criteria. The authorities stated that they were unable to understand the content of the book which was written in English to determine whether its content complied with the above-mentioned criteria. Yet, the law required the authorities to assess whether the content of publications complied with relevant legislation but did not mention the need for translation as a ground for interception.

36.  In the light of the above, the Court finds that in the present case, no law or regulation envisages the possibility of withholding publications from prisoners based solely on their language, and that the decisions of the domestic authorities were not based on any of the grounds listed in the law or regulations (compare also Mesut Yurtsever and Others, cited above, § 57).

37.  The Court accordingly concludes that the interference complained of was not “in accordance with the law”.

38.  There has accordingly been a violation of Article 10 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

39.  The applicant did not submit a claim for just satisfaction within the prescribed time-limit. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 12 November 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Jovan Ilievski
 Deputy Registrar President