SECOND SECTION
CASE OF MEHMET DEMİR v. TÜRKİYE
(Application no. 55569/19)
JUDGMENT
STRASBOURG
24 October 2023
This judgment is final but it may be subject to editorial revision.
In the case of Mehmet Demir 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. 55569/19) 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 30 September 2019 by a Turkish national, Mr Mehmet Demir (“the applicant”), who was born in 1985 and is detained in Gaziantep;
the decision to give notice of the complaint under Article 8 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 of the Republic of Türkiye, and to declare the remainder of the application inadmissible;
the Government’s observations;
the interest expressed by the applicant in pursuing the application;
the decision to dismiss the Government’s objection to the examination of the application by a Committee;
Having deliberated in private on 3 October 2023,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The application concerns the monitoring by prison authorities of documents exchanged between the applicant and his lawyer during their meetings in prison.
2. At the material time the applicant was detained in Osmaniye First T‑Type Closed Prison, pending trial on charges of membership of the organisation described by the Turkish authorities as FETÖ/PDY (“Fetullahist Terror Organisation/Parallel State Structure”).
Decisions of the Osmaniye Magistrate’s Court ordering the monitoring of documents exchanged in MEETINGS between DETAINEes AND THEIR LAWYERS3. At the request of the Osmaniye chief public prosecutor’s office, on 6 January 2017 the Osmaniye Second Magistrate’s Court (Osmaniye İkinci Sulh Ceza Mahkemesi) decided – under section 59(5) of Law no. 5275 on the enforcement of sentences and preventive measures (hereinafter “Law no. 5275”), as amended by Emergency Legislative Decree no. 676 (see paragraph 11 below) – to carry out monitoring in the Osmaniye First and Second Closed Prisons of documents exchanged between the detainees and their lawyers. The decision described the following incidents involving inmates in Osmaniye penal institutions, detained on charges relating to the organisation described by the Turkish authorities as FETÖ/PDY, as grounds for the monitoring in question:
(i) a letter containing unintelligible words was written by a detainee in prison and placed in a sealed envelope;
(ii) a compass was found during a search of a room of those arrested;
(iii) during a meeting in prison a lawyer attempted to covertly pass on a document to the detainee that he was representing;
(iv) the wife of a detainee wiped off with her saliva an inscription on her left arm that had come to light during a body search.
Having regard to the above-mentioned findings, the Magistrate’s Court concluded that, in their meetings with their lawyers, the inmates detained for the offences specified in section 59(5) of Law no. 5275 were endangering the safety of society and the penal institution, were being directed by terrorist organisations or other criminal organisations, were giving orders and instructions to those organisations, or were conveying secret, open or encrypted messages in their communications. Accordingly, the court decided that for a period of three months the detainees’ meetings with their lawyers should be subject to the following restrictions:
“...
3. Notwithstanding the principle of the sanctity of defence, in case the meeting with the detainee and his or her lawyer is held for the purpose of endangering the safety of society and of the penal institution, of directing terrorist organisations or other criminal organisations, of giving orders and instructions to those organisations or of transmitting secret, open or encrypted messages in their communications, the documents and/or their copies given by the lawyer to the detainee or by the detainee to the lawyer, as well as the files and records relating to the meetings between the detainee and the lawyer, shall be confiscated and the meeting held for this purpose shall be terminated immediately,
...”
4. At the end of the three-month period, the restrictions were renewed by decisions of a magistrate’s court, with similar content. In the decision of the Osmaniye First Magistrate’s Court dated 20 April 2018, it was decided that the same monitoring measures would be re-imposed on all detainees, including those who might be detained in future, for any of the offences specified in section 59(5) of Law no. 5275.
Proceedings brought by the applicant against the monitoring of documents exchanged with HIS lawyer5. The applicant submitted an objection to the Osmaniye enforcement judge on 3 May 2018 against the monitoring of documents exchanged with his lawyer and requested that it cease.
6. On 12 July 2018 the Osmaniye enforcement judge dismissed the objection, considering essentially that the monitoring of documents was in compliance with the above-mentioned decision of the Osmaniye Second Magistrate’s Court (see paragraph 3 above).
7. On 9 August 2018 the applicant lodged an appeal with the Osmaniye First Assize Court against the decision of the Osmaniye enforcement judge. The Assize Court dismissed his appeal on 6 September 2018 on the grounds that the decision of the enforcement judge was in accordance with the law and procedure.
8. Upon the dismissal of his appeal, the applicant lodged an individual application with the Constitutional Court on 13 December 2018, complaining about the monitoring of the documents exchanged with his lawyer.
9. Having examined the applicant’s complaint under the right to legal assistance by defence counsel, on 8 August 2019 the Constitutional Court declared the application inadmissible for non-exhaustion of legal remedies, referring to its previous Ahmet Sil (2) decision (application no. 2017/20969, 28 June 2018).
10. On 4 September 2019 the applicant was notified of the Constitutional Court’s decision.
RELEVANT DOMESTIC LAW AND PRACTICE
11. Article 6 of Emergency Legislative Decree no. 676, published in the Official Gazette of 29 October 2016, amended paragraph (4) of section 59 of Law no. 5275 and added new paragraphs to that section. Following these amendments, the provision reads as follows:
Right to consult a lawyer and a notary
“Section 59 ...
(4) During the meeting, the documents and/or their copies, files and records kept by the convicted person and his or her lawyer regarding the conversation between them shall not be inspected; the conversation of the convicted person and his or her lawyer shall not be listened to or recorded.
(5) In the event of the discovery of information, materials or document which indicates that the safety of society and of the penal institution is endangered, that terrorist organisations or other criminal organisations are being directed, that orders and instructions are being given to these organisations, or that secret, open or encoded messages are being transmitted in their communications during the meetings of convicted persons – who are imprisoned for the offences defined in Article 220 of the Turkish Criminal Code and in the Fourth, Fifth, Sixth and Seventh Parts of Chapter IV of Volume II of the Turkish Criminal Code or for the offences falling within the scope of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991) – then at the request of the chief public prosecutor’s office and by order of the enforcement judge the meetings may, for a period of three months, be recorded in audio or video format via a technical device, an officer may be present during the meeting so as to monitor the meeting between the convicted person and his or her lawyer, the documents or copies of documents and files given by the convicted person to his or her lawyer and vice versa and the records kept by them in relation to the conversations between them may be seized, or the days or hours of these meetings may be restricted.
...
(9) The decisions delivered by the enforcement judge pursuant to this section may be challenged in accordance with Law no. 4675.
...
(11) The judge at the investigation stage and the relevant court at the trial stage shall be authorised to deliver a decision according to the provisions of this section ...”
12. Under Law no. 7070 enacted on 1 February 2018 and published in the Official Gazette on 8 March 2018, Emergency Legislation Decree no. 676 was approved by the National Assembly, thus becoming law.
THE COURT’S ASSESSMENT
13. The applicant alleged that the monitoring of documents exchanged between him and his lawyer during their meetings in prison had constituted a violation of his right to respect for his correspondence with his lawyer under Article 8 of the Convention.
14. The Government disputed the victim status of the applicant under Article 8 of the Convention, arguing that he had not specifically explained how he had victim status as a consequence of the inspection of documents in his meetings with his lawyers. Secondly, submitting that the applicant’s complaint should be examined under Article 6 of the Convention, the Government argued that the applicant had failed to exhaust domestic remedies since criminal proceedings against him were still pending. Lastly, the Government emphasised that the derogation under Article 15 of the Convention had still been in force in Türkiye at the material time and that the application should therefore be dismissed as manifestly ill-founded.
15. As regards the Government’s objection regarding the alleged lack of victim status of the applicant, the Court reiterates that the word “victim”, within the meaning of Article 34 of the Convention, denotes the person or persons directly or indirectly affected by the alleged violation (seeVallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 47, ECHR 2013 (extracts), and the cases cited therein). The Court observes that there is no dispute between the parties that the documents in the applicant’s possession were monitored by the prison authorities during his meetings with his lawyer. In this connection, the Court considers that the monitoring of the documents directly affected him in his right to confidential communication with his lawyer under Article 8 of the Convention. It therefore dismisses the objection of lack of victim status raised by the Government.
16. The Court further observes that the applicant complained about the monitoring by the prison authorities of the documents he had exchanged with his lawyer and not about the outcome of criminal proceedings against him and that he had exhausted the relevant remedies before the domestic authorities in objecting to this practice. Accordingly, the applicant’s complaint cannot be dismissed for non-exhaustion of domestic remedies.
17. This complaint is further 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.
18. The general principles concerning the right to confidential communication with a lawyer have been summarised in Altay v. Turkey (no. 2) (no. 11236/09, §§ 49-52, 9 April 2019). The Court has also set out the principles on the monitoring of correspondence between prisoners and their lawyers in Eylem Kaya v. Turkey (no. 26623/07, §§ 41-48, 13 December 2016).
19. In the present case, the Court observes that the exchange of documents between the applicant and his lawyer was monitored by the prison authorities and that this fact was not in dispute between the parties. The Court therefore considers that there has been an interference with the applicant’s right to confidential communication with his lawyer (compare also Altay, cited above, § 53) and thus with his right to respect for his private life and his correspondence for the purposes of Article 8 § 1. It is therefore incumbent on the Court to establish whether the impugned interference was justified under Article 8 § 2 of the Convention as being “in accordance with the law”, as pursuing a legitimate aim or aims, and as being “necessary in a democratic society” in pursuit of that aim or those aims.
20. The expression “in accordance with the law” requires, firstly, that the impugned measure should have a basis in domestic law. Secondly, it refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Khoroshenko v. Russia [GC], no. 41418/04, § 110, ECHR 2015, and the cases cited therein).
21. Turning to the circumstances of the present case, the Court notes that the enforcement judge, in the decision dated 12 July 2018 dismissing the applicant’s objection, considered that the monitoring of the documents exchanged between the applicant and his lawyer was in compliance with the decision of the Second Magistrate’s Court ordering the measure at issue (see paragraph 6 above). The Court notes also that the monitoring measure was adopted by the decision of the Second Magistrate’s Court dated 6 January 2017 (see paragraph 3 above) and renewed by a decision of the First Magistrate’s Court dated 20 April 2018 (see paragraph 4 above), in line with section 59 of Law no. 5275. The Court therefore finds that section 59(5) of Law no. 5275, as amended by Article 6 of Emergency Legislative Decree no. 676, constitutes the legal basis of the monitoring measure.
22. The Court further observes that, at the chief public prosecutor’s request, on 20 April 2018 the First Magistrate’s Court ordered the monitoring, for a period of three months, of the documents exchanged between lawyers and the inmates detained for the offences specified in section 59(5) of Law no. 5275, as amended by Article 6 of Emergency Legislative Decree no. 676. Pursuant to the same decision, such documents could be confiscated if it was determined that they had been handed over for the purpose of endangering the safety of society and of the penal institution, directing terrorist organisations or other criminal organisations, giving orders and instructions to those organisations, or transmitting secret, open or encrypted messages in their communications. The measure decided by the First Magistrate’s Court applied to all detainees arrested for offences specified in section 59(5) of Law no. 5275, and anyone else who might be arrested for the same offences, without any individualised justification therefor (see paragraph 3 above).
23. The Court recalls in this connection that the Convention does not prohibit the imposition on lawyers of certain obligations likely to concern their relationships with their clients. This is the case in particular where credible evidence is found of the participation of a lawyer in an offence, or in connection with efforts to combat certain practices. On that account, however, it is vital to set a strict framework for such measures, since lawyers occupy a vital position in the administration of justice and can, by virtue of their role as an intermediary between litigants and the courts, be described as officers of the law (see Altay, cited above, § 56).
24. In the present case, the Court notes that the domestic courts’ decision, puts in place a general measure applicable to all persons detained for certain offences and does not contain any individualised assessment having regard to the specific situation of a detainee. In the circumstances of the present case, the Court observes that, in ordering the impugned measure, the domestic courts did not point to any particular element indicating the specific dangers presented by the documents exchanged between the applicant and his lawyer as regards the security of the penal institution or suggesting any risk of communication with terrorist organisations by such means. The Court finds that the discretionary power enjoyed by the authorities to monitor the documents exchanged by the applicant with his lawyer under the above-mentioned decisions, based on section 59(5) of Law no. 5275, was not subject to any conditions, that the scope and manner of exercise of that power were not defined, and that no other specific safeguards were provided in that regard. The right to respect for confidential communication between prisoners and their lawyers constitutes a fundamental right belonging to the individual and directly affects the rights of the defence. For this reason, deviation from this principle is therefore only permissible in exceptional circumstances and must be accompanied by adequate and sufficient safeguards against abuse (see Eylem Kaya, cited above, § 44, and, mutatis mutandis, Klass and Others v. Germany, 6 September 1978, § 48, Series A no. 28).
25. Therefore, the Court concludes that the interpretation and application by the domestic courts of section 59(5) of Law no. 5275 in the present case must be considered wide and vague and that such an extensive interpretation and application of the relevant domestic provision did not comply with the Convention requirements of foreseeability and thus lawfulness (compare also Altay, cited above, § 57).
26. In the light of the foregoing, the Court considers that the interference at issue was not “in accordance with the law” within the meaning of paragraph 2 of Article 8 of the Convention. Moreover, for the reasons set out above in support of that conclusion, it considers that the measure at issue cannot be regarded as having been strictly required by the particular circumstances of the state of emergency (compare also Pişkin v. Turkey, no. 33399/18, §§ 152, 153 and 229, 15 December 2020).
27. Having regard to this conclusion, the Court is not required to examine whether the interference pursued one or more legitimate aims and was necessary in a democratic society.
28. There has accordingly been a violation of Article 8 § 1 of the Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
29. 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,
Declares the application admissible;Holds that there has been a violation of Article 8 of the Convention.Done in English, and notified in writing on 24 October 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Dorothee von Arnim Jovan Ilievski
Deputy Registrar President