SECOND SECTION
CASE OF ÇALAĞAN AND OTHERS v. TURKEY
(Applications nos. 46162/07 and 9 others ‑ see appended list)
JUDGMENT
STRASBOURG
4 September 2018
This judgment is final but it may be subject to editorial revision.
In the case of Çalağan and Others v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Ledi Bianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 3 July 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in ten applications (nos. 46162/07, 21029/08, 41912/08, 53697/08, 38580/09, 44477/09, 60696/09, 3895/10, 46192/11 and 60196/11) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by twenty three Turkish nationals, (“the applicants”), whose names and the relevant details of the applications are set out in the appended table.
2. The Turkish Government (“the Government”) were represented by their Agent.
3. Between 12 December 2016 and 10 May 2017 the applications were communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicants were serving their prison sentences in various establishments at the time when the applications were lodged.
5. All of the applicants were found guilty of breaching prison order by decisions of the respective disciplinary boards of prisons in which they were held. Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, the applicants were sentenced respectively between 11 to 15 days’ solitary confinement on the orders of the respective Prison Disciplinary Boards (referred hereafter as “the board”).
6. Their objections were subsequently rejected by the Enforcement Judges and the Assize Courts, on the basis of the case files, without hearing the applicants or their lawyers, pursuant to Law no. 4675 on Enforcement Judges, dated 16 May 2001.
II. RELEVANT DOMESTIC LAW
7. A full description of the relevant domestic law at the material time can be found in Yalçınkaya and Others v. Turkey (nos. 25764/09 and 18 others, §§ 12-13, 1 October 2013).
THE LAW
I. JOINDER OF THE APPLICATIONS
8. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.
II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
9. The applicants complained that the disciplinary punishment imposed on them for using the honorific “sayın” (esteemed) when referring to the imprisoned leader of the PKK in their letters, had constituted an unjustified interference with their right to freedom of expression under Article 10 of the Convention.
10. The Government contested that argument.
11. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.
12. The applicants complained that the disciplinary sanctions imposed on them, which were based on the Regulations on the administration of penitentiary institutions and the execution of sentences, had infringed their rights under the Convention.
13. The Court has already examined a similar complaint in the case of Yalçınkaya and Others v. Turkey (nos. 25764/09 and 18 others, §§ 26‑38, 1 October 2013) and found a violation of Article 10 of the Convention. It has also examined the present cases and finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgment.
14. In view of the foregoing, the Court holds that there has been a violation of Article 10 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
15. In applications nos. 46162/07, 38580/09, 44477/09 and 46192/11, the applicants each claimed 10,000 euros (EUR) in respect of non-pecuniary damage. In applications nos. 21029/08, 41912/08 and 3895/10, the applicants each claimed EUR 5,000 in respect of non-pecuniary damage. In application no. 53697/08, the applicants each claimed EUR 20,000 in respect of non-pecuniary damage. In application no. 60696/09, the applicant claimed a total of 25,000 Turkish Liras (TRY) (equivalent of approximately EUR 5,000) in respect of pecuniary and non-pecuniary damage. In application no. 60196/11, without specifying an amount, the applicant asked the Court to make an award for non-pecuniary damage.
16. The Government submitted that the amounts claimed by the applicants were speculative and excessive. They therefore invited the Court to dismiss the applicants’ claims.
17. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court accepts that the applicants suffered non-pecuniary damage which is not sufficiently compensated for by the finding of a violation. Making its assessment on an equitable basis and having regard to the circumstances of the cases, the Court awards each of the applicants EUR 2,500 under this head (see Yalçınkaya and Others, cited above, § 53).
B. Costs and expenses
1. Application no. 46162/07
18. The applicant claimed 590 Turkish Liras (TRY) (equivalent of approximately EUR 118) in respect of costs and expenses incurred in the domestic proceedings. In respect of this claim, he submitted a receipt concerning the lawyer’s fees.
19. The Court reiterates that according to its case-law applicants are entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 100 in respect of costs and expenses incurred in the proceedings before the Court and the domestic courts.
2. Other Applications
20. In applications nos. 38580/09, 44477/09 and 46192/11, the applicants claimed TRY 7,385 (equivalent of approximately EUR 1,477) in respect of costs and expenses for each application. In respect of their claims, they solely referred to the Turkish Bar Association’s tariff of fees for attorneys. In application no. 53697/08, referring to the Istanbul Bar Association’s tariff of fees for attorneys, the applicants claimed EUR 16,000 in respect of costs and expenses.
21. In applications nos. 2109/08, 41912/08 and 3895/10, the applicants claimed EUR 3,070 in respect of costs and expenses for each application. In application no. 60696/09, the applicant claimed TRY 13,550 (equivalent of approximately EUR 2,710) in respect of costs and expenses. In application no. 60196/11, the applicant did not submit a claim for just satisfaction within the time-limit set by the Court.
22. The Government contested the claims.
23. As regards the costs and expenses claimed by the applicants, According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. The Court observes that despite the fact that some applicants referred Turkish Bar Associations’ scale of fees, they failed to quantify their costs and expenses and to submit any document in support of their claims. The Court therefore makes no award under this head.
C. Default interest
24. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 10 of the Convention;
4. Holds
(a) that the respondent State is to pay each of the applicants, within three months, EUR 2,500 (two thousand five hundred euros) plus any tax that may be chargeable to the applicants, in respect of non-pecuniary damage;
(b) that the respondent State is to pay the applicant in application no. 46162/07, within three months, EUR 100 (a hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(c) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicants’ claim for just satisfaction.
Done in English, and notified in writing on 4 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan BakırcıLedi Bianku
Deputy RegistrarPresident
APPENDIX
No.
Application
no.
Lodged on
Applicant’s name
date of birth
place of residence
Represented by
Date of Board’s decision
Date of final decision delivered by the Assize Court
Type of disciplinary punishment imposed
Acts for which disciplinary punishment imposed
1.
46162/07
22/10/2007
Hikmet ÇALAĞAN
01/06/1971
Bingöl
Fikret ÇALAĞAN
02/04/2007
17/05/2007
11 days’ solitary confinement
Writing a petition to the prison administration in support of Öcalan, in which he praised the imprisoned leader of the PKK, by using the honorific “sayın” meaning esteemed.
2.
21029/08
21/04/2008
Fesih ERDEMİRCİ
01/01/1962
Kocaeli
Refik SÜNKÜR
03/02/1975
Bolu
Abdullah RÜZGAR
02/05/1969
Kocaeli
Mehmet Deniz GÜZEL
04/12/1972
Bolu
Mehmet ERBİL
03/09/2007
23/10/2007
11 days’ solitary confinement
Writing a petition to the public prosecutor in support of Öcalan, in which they praised the imprisoned leader of the PKK, by using the honorific “sayın” meaning esteemed
3.
41912/08
15/08/2008
Murat TÜRK
22/05/1974
Bolu
Hamza YÜNAÇTI
01/01/1976
Kocaeli
Hüseyin KOÇUK
01/01/1987
Kocaeli
Mehmet ERBİL
02/01/2008
29/02/2008
13 days’ solitary confinement
Going on a hunger strike and writing a petition to the Ministry of Justice in support of Öcalan, in which they praised the imprisoned leader of the PKK, by using the honorific “sayın” meaning esteemed.
4.
53697/08
10/10/2008
Rayif DAMAR
01/01/1967
Kocaeli
Abdulcelil KAÇMAZ
01/03/1967
İzmit
Nevzat GÜNGÖR
01/01/1970
Kocaeli
Fatma KARAKAŞ DOĞAN
05/06/2008
28/08/2008
15 days’ solitary confinement
Going on a hunger strike and writing a petition to the Ministry of Justice in support of Öcalan, in which they praised the imprisoned leader of the PKK, by using the honorific “sayın” meaning esteemed.
5.
38580/09
22/06/2009
Kayhan AKAN
01/01/1982
Kocaeli
İnan AKMEŞE
30/10/2008
29/12/2008
a) 15 days’ solitary confinement
b) two-months ban on participating in certain activities
Going on a hunger strike and writing a petition to the prison administration in support of Öcalan, in which he praised the imprisoned leader of the PKK, by using the honorific “sayın” meaning esteemed
6.
44477/09
06/07/2009
İhsan KARTAL
20/08/1984
Tekirdag
Diyadin AKDEMİR
01/01/1974
Kocaeli
Hamza AKKAŞ
01/01/1981
Izmit
Lütfü YOLDAŞ
01/01/1982
Tekirdağ
Ahmetcan BAYDENİZ
26/05/1989
Tekirdag
İnan AKMEŞE
17/07/2008
23/03/2009
11-15 days’ solitary confinement
Writing a petition to the public prosecutor in support of Öcalan, in which they praised the imprisoned leader of the PKK, by using the honorific “sayın” meaning esteemed.
7.
60696/09
23/09/2009
Turan GÜNANA
20/09/1981
Kocaeli
Ercan KANAR
17/07/2008
23/03/2009
15 days’ solitary confinement
Writing a petition to the public prosecutor in support of Öcalan, in which he praised the imprisoned leader of the PKK, by using the honorific “sayın” meaning esteemed
8.
3895/10
05/11/2009
Ergin ATABEY
01/01/1973
Bolu
Metin YAMALAK
10/06/1980
Bolu
Aydın ŞAKA
20/04/1980
Bolu
Mehmet ERBİL
17/07/2008
17/07/2008 (concerning Ergin Atabey)
23/03/2009
24/06/2009 (Concerning Ergin Atabey)
11-15 days’ solitary confinement
15 days’ solitary confinement (Concerning Ergin Atabey)
Writing a petition to the public prosecutor in support of Öcalan, in which they praised the imprisoned leader of the PKK, by using the honorific “sayın” meaning esteemed.
Writing a petition to the public prosecutor in support of Öcalan, in which he praised the imprisoned leader of the PKK, by using the honorific “sayın” meaning esteemed (concerning Ergin Atabey)
9.
46192/11
11/05/2011
İhsan KARTAL
20/08/1984
Tekirdag
İnan AKMEŞE
13/10/2010
10/01/2011
11 days’ solitary confinement
Writing a petition to the Ministry of Justice in support of Ocalan , in which he praised the imprisoned leader of the PKK, by using the honorific “sayın” meaning esteemed
10.
60196/11
18/07/2011
Hüseyin SARI
05/05/1958
Bolu
12/12/2007
13/07/2011
11 days’ solitary confinement
Writing a petition to the Ministry of Justice in support of Ocalan, in which he praised the imprisoned leader of the PKK, by using the honorific “sayın” meaning esteemed.
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