SECOND SECTION
CASE OF KOP v. TÜRKİYE
(Application no. 47404/20)
JUDGMENT
STRASBOURG
21 March 2023
This judgment is final but it may be subject to editorial revision.
In the case of Kop v. Türkiye,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Jovan Ilievski, President,
Lorraine Schembri Orland,
Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,
Having regard to:
the application (no. 47404/20) 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 15 October 2020 by a Turkish national, Mr Ali Fuat Kop (“the applicant”), who was born in 1970 and is currently detained in İzmir;
the decision to give notice of the complaint under Article 10 of the Convention to the Turkish Government (“the Government”), represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice, and to declare inadmissible the remainder of the application;
the parties’ observations;
the decision to reject the Government’s objection to examination of the application by a Committee;
Having deliberated in private on 28 February 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The present application concerns the seizure by the prison administration of the applicant’s manuscript of short stories when he handed it over to be sent to his mother by post.
2. The applicant had been sentenced to aggravated life imprisonment and at the material time he was serving his sentence in İzmir prison.
3. In order to have it sent to his mother by post, the applicant handed an envelope to the prison administration which contained a 96-page manuscript of various short stories written by him. Having examined it, the letter-reading committee of the prison decided to refer the manuscript to the disciplinary board for further examination.
4. On 28 February 2020, relying on section 68(3) of the Law on the Execution of Sentences and Preventive Measures (Law no. 5275), the disciplinary board of İzmir prison decided to withhold certain parts (thirty-one pages in total) of the manuscript, which it described as the applicant’s literary work, on the grounds that the pages in question were intended to give encouragement to those convicted or in pre-trial detention for membership of the PKK (Workers’ Party of Kurdistan, an armed terrorist organisation) or to further communication within that organisation, and contained passages that were insulting to the State of the Republic of Türkiye and its officials. The disciplinary board decided to send the remaining pages of the manuscript on to its intended recipient.
5. The Karşıyaka enforcement judge and the Karşıyaka Assize Court respectively dismissed the applicant’s objections to the disciplinary board’s decision, holding that it was in compliance with the law and procedure, particularly with section 68(3) of Law no. 5275 on convicted prisoners’ rights to send and receive letters, fax messages and telegrams.
6. In a decision of 18 September 2020, the Constitutional Court examined the applicant’s individual application from the standpoint of the right to respect for correspondence and declared it inadmissible as being manifestly unfounded.
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
7. The applicant complained that the prison administration’s decision not to send certain pages of his manuscript to the intended recipient but to withhold them amounted to a violation of Articles 8 and 10 of the Convention.
8. The Court notes that the documents seized by the prison administration were manuscripts consisting of short stories written by the applicant. The documents seized were indisputably the result of the exercise by the applicant of his right to freedom of expression. Therefore, the applicant’s complaint relates more to his right to freedom of expression than to his right to respect for his correspondence. In the light of the foregoing, since it is the master of the characterisation to be given in law to the facts of the case, the Court considers that this complaint should be examined solely from the standpoint of Article 10 of the Convention (compare also Sarıgül v. Turkey, no. 28691/05, §§ 32‑33, 23 May 2017).
9. The Government raised three inadmissibility objections. Firstly, they argued that the application was inadmissible as the applicant had not suffered any significant disadvantage as a result of the decision not to send certain parts of his manuscript out by post. The Government submitted that the applicant’s correspondence had not been restricted and he had continued to send and receive mail. The applicant was able to use the prison library and had access to newspapers and other publications. Secondly, having noted the principle of subsidiarity, the Government submitted that the complaint had to be declared inadmissible as being manifestly unfounded as the national courts had duly examined its merits and declared it inadmissible. Lastly, the Government submitted that since the applicant had not been subjected to any disciplinary sanction and he had continued to benefit from the right to receive information through various means, he did not have victim status.
10. As regards the Government’s objection relating to the applicant’s victim status, the Court is of the opinion that the fact the applicant was not subjected to any disciplinary sanction and continued to receive information through various means did not offer any redress and is thus not sufficient to deprive him of victim status in relation to the withholding of his manuscript (see, mutatis mutandis, Murat Türk v. Turkey [Committee], no. 20686/19, § 10, 5 April 2022). Similarly, the Court considers that the applicant’s access to publications and to the prison library is unrelated to the seizure of his manuscript and did not alleviate its negative effects. Therefore, it cannot be said that he did not suffer a significant disadvantage. The Government’s objection concerning the alleged lack of a significant disadvantage must therefore be dismissed. As regards the Government’s second objection, the Court considers that the arguments put forward raise issues requiring an examination of the merits of the complaint under Article 10 of the Convention.
11. The Court notes that this complaint 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.
12. The Court considers that the seizure of certain parts of the applicant’s manuscript consisting of short stories constituted an interference with his right to freedom of expression (see Sarıgül, cited above, § 43, and Günana and Others v. Turkey, nos. 70934/10 and 4 others, §§ 60-61, 20 November 2018).
13. The Government submitted that the legal basis for the interference complained of was section 68(3) of the Law on the Execution of Sentences and Preventive Measures (Law no. 5275) and Article 91 of the Regulation on the management of prisons and the execution of sentences and preventive measures (“the Regulation”).
14. The Court reiterates that it has found that there was no legal basis in Turkish domestic law for the seizure of a detainee’s manuscript under any circumstances (see Günana and Others, cited above, § 67, and also Murat Türk, cited above, § 14).
15. In the present case, the Court notes that the prison authorities and the national courts relied on section 68(3) of Law no. 5275 when ordering the seizure of the applicant’s manuscript and rejecting his objections to that decision. However, the Court observes that section 68(3) of Law no. 5275 and Article 91 of the Regulation, which were relied on by the Government as the legal basis of the disputed measure, concerned the right of convicted prisoners to send and receive letters and possible restrictions on the enjoyment of that right. The provisions in question did not relate to the surveillance or seizure of prisoners’ manuscripts (compare also Günana and Others, cited above, §§ 65-68). Thus, the Court sees no reason in the present case to depart from its approach in the above-mentioned cases.
16. The Court therefore finds that the disputed interference was not “prescribed by law” within the meaning of Article 10 § 2 of the Convention. In the light of that conclusion, it considers that there is no need to ascertain whether the other conditions required by Article 10 § 2 of the Convention – namely the existence of a legitimate aim and the necessity of the interference in a democratic society – have been complied with in the present case.
17. There has accordingly been a violation of Article 10 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
18. The applicant claimed 10,000 euros (EUR) in respect of pecuniary damage, representing his potential income from publication of his stories. He further claimed EUR 5,000 in respect of non-pecuniary damage. Without making a specific claim, the applicant asked the Court for reimbursement of his costs and expenses in respect of translation and postal expenses incurred in the proceedings before it. He submitted five postage invoices to a total of 108 Turkish liras (approximately EUR 20 at the relevant date).
19. The Government contested those claims.
20. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. As regards non-pecuniary damage, the Court considers that in the present circumstances the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage alleged (see Murat Türk, cited above, § 19).
21. As regards the postal expenses, regard being had to the documents in its possession, the Court considers it reasonable to award the applicant EUR 20 under this head, plus any tax that may be chargeable to the applicant.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the application admissible;Holds that there has been a violation of Article 10 of the Convention;Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;Holdsthat the respondent State is to pay the applicant, within three months, EUR 20 (twenty euros), plus any tax that may be chargeable to the applicant, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, in respect of costs and expenses;
(a) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicant’s claim for just satisfaction.Done in English, and notified in writing on 21 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Dorothee von Arnim Jovan Ilievski
Deputy Registrar President