CASE OF NECDET VURAL v. TÜRKİYE

SECOND SECTION

CASE OF NECDET VURAL v. TÜRKİYE

(Application no. 35555/19)

JUDGMENT
 

STRASBOURG

17 December 2024

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

In the case of Necdet Vural v. Türkiye,

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

 Péter Paczolay, President,
 Anja Seibert-Fohr,
 Gediminas Sagatys, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 35555/19) 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 21 June 2019 by a Turkish national, Mr Necdet Vural (“the applicant”), who was born in 1974, lives in Antalya, and was represented by Mr E.H. Yeşildal, a lawyer practising in Antalya;

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 parties’ observations;

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

Having deliberated in private on 26 November 2024,

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

SUBJECT MATTER OF THE CASE

1.  The application concerns the refusal by the domestic courts of the applicant’s request to receive publications in prison, either paid for by himself or sent by his relatives.

2.  At the time of the events giving rise to the present application, the applicant had been in pre-trial detention in Sincan T-Type Prison 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 7 November 2016 the applicant filed a request with the Ankara Batı enforcement judge. Invoking section 62 § 3 of the Law on the enforcement of sentences and preventive measures (“Law no. 5275”), the applicant sought authorisation to obtain periodical and non-periodical publications either at his own expense or through deliveries by his first-degree relatives. The applicant justified his request by citing the impracticality of accessing the prison library due to overcrowding.

4.  On 8 November 2016, without citing any specific provision of domestic law, the Ankara Batı enforcement judge denied the applicant’s request based on a decision made by the Education Board of Sincan Prison on 17 August 2016. The latter decision had suspended the delivery of publications to inmates due to concerns over the potential misuse of books, including the risk of starting fires that could threaten the safety of the inmates, their cellmates, and the overall prison population.

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

6.  In a summary judgment of 25 December 2018, the Constitutional Court declared the individual application lodged by the applicant inadmissible as manifestly ill‑founded. The judgment was notified to the applicant on 28 December 2018.

7.  The applicant complained of a violation of his right to receive and impart information under Article 10 of the Convention on account of the domestic courts’ refusal of his request to receive publications in prison to be paid by himself or to be sent to him by his first-degree relatives.

RELEVANT LEGAL FRAMEWORK

8.  Section 62 § 3 of the Law no. 5275, as in force at the relevant time, read as follows:

“No publication that jeopardizes the security of the institution or contains obscene articles, writings, photographs or comments will be given to convicted persons.”

9.  Section 86 § 2 of the same law reads as follows:

“Items and substances that could compromise the institution’s security or the health of inmates are prohibited within the facility. (...)”

10.  Section 125 of the Regulation on the management of prisons reads as follows:

“Monetary transfers and items sent to convicts by mail or courier must be collected from the post by the trustee of the institution within seven days. Items will be delivered to the convict if they are deemed suitable for entry and storage within the facility according to legislative regulations. If any items are considered to be objectionable, the convict will be notified in writing within fifteen days of their receipt. If the convict does not challenge this decision by filing an objection to the enforcement judge within fifteen days of being notified, the items will be returned to the sender or to a designate chosen by the convict. Upon the convict’s request, the items can also be stored at the institutional depository and handed over to his relatives during their first visit.”

11.  Section 11 of the Instruction on Prison Libraries reads as follows:

“[The following will not be accepted in the establishment:]

a)  Publications prohibited by the courts;

b)  Publications not prohibited by the courts but considered, by decision of the Education Board, to jeopardise the safety of the institution or to contain obscene articles, writings, photographs, or comments

(...)”

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

12.  The Government raised three preliminary objections. Firstly, they argued that the applicant had failed to exhaust domestic remedies by not first raising his complaints before the prison administration but instead lodging them directly with the enforcement judge. Secondly, the Government asserted that the applicant lacked victim status because he had neither requested any publications from the prison administration, nor had his relatives brought in any books or publications for him, and he continued to have access to the prison library. Lastly, the Government asserted that the application should be declared inadmissible as being manifestly ill-founded since the prison administration did not actively impose any restrictions on the applicant’s right to access periodicals and non‑periodicals and further noted that the applicant had borrowed five books from the prison library during his detention.

13.  The applicant did not comment on the Government’s objections as to the admissibility of the application.

14.  In respect of the Government’s first preliminary objection concerning the non-exhaustion of domestic remedies, the Court reiterates that the applicant raised his complaints regarding his request to receive publications in prison before the relevant enforcement judge and assize court and then finally before the Constitutional Court. None of those domestic courts considered that the applicant had not complied with the requirement to first raise a complaint with the prison administration. Moreover, all of those domestic courts examined the substance of the applicant’s complaints. In these circumstances, it cannot be said that the applicant failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. It follows that this part of the Government’s objection must be dismissed (see, mutatis mutandis, İlerde and Others v. Türkiye, nos. 35614/19 and 10 others, §§ 145-47, 5 December 2023).

15.  Regarding the second preliminary objection of the Government concerning the lack of victim status of the applicant, the Court observes that despite the applicant’s ability to access other sources of information and ideas within the prison, he was specifically denied access to publications he could have requested from the prison administration or that his relatives might have brought him, which is the central issue of the present case. In view of the fact that the applicant was detained in Sincan Prison whose Education Board had generally suspended the delivery of publications to inmates (see paragraph 4 above), he was directly affected by, and thus victim of, the prohibition on receiving publications in prison, even in the absence of a concrete measure of implementation refusing the delivery of a specific publication to the applicant (compare for the relevant principles Burden v. the United Kingdom [GC], no. 13378/05, §§ 33-34, ECHR 2008 with further references). The Court therefore rejects this objection (see, mutatis mutandis, Osman and Altay v. Türkiye, nos. 23782/20 and 40731/20, § 33, 18 July 2023).

16.  With regard to the third preliminary objection, the Court considers that the argument put forward by the Government raises issues requiring an examination of the merits of the complaint under Article 10 of the Convention (see Osman and Altay, cited above, § 34).

17.  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.

18.  The general principles relevant for the compliance with Article 10 of the Convention of the prohibition on detainees to receive publications in prison are laid down in Mehmet Çiftci v. Turkey (no. 53208/19, §§ 32-45, 16 November 2021) and Osman and Altay (cited above, §§ 40-59).

19.  The Court considers that the refusal of the applicant’s request to receive publications in prison constituted an interference with his right under Article 10 to receive information and ideas (compare also Osman and Altay, cited above, § 41, and Mehmet Çiftçi, cited above, § 33).

20.  The Court observes that neither the prison authorities nor the national courts cited any specific legal provision when denying the applicant’s request (see paragraphs 4 and 5). However, the Government submitted that the legal basis for the interference complained of were sections 62 § 3 and 86 § 2 of the Law no. 5275, Section 125 of the Regulation on the management of prisons and Section 11 of the Instruction on Prison Libraries (see paragraphs 8-11 above).

21.  The Court notes that the provisions cited by the Government as the legal basis of the disputed measure mainly concerned the assessment of potentially dangerous content in publications or materials sent to prison. However, having regard to the conclusion it reaches below when examining the necessity of the interference (see paragraphs 24 and 25 below), the Court considers that it is not necessary to decide on the question of whether the interference was “prescribed by law” within the meaning of Article 10 § 2 of the Convention.

22.  The Court also accepts that the interference pursued legitimate aims under Article 10 § 2 of the Convention, namely the prevention of disorder and crime.

23.  Regarding the necessity of the interference, the Court notes that the enforcement judge rejected the applicant’s request to receive periodical and non-periodical publications from outside of the prison due to the potential for inmates to misuse books, such as to start fires, thereby posing a significant threat to the safety and security in prison (see paragraph 4 above).

24.  The Court accepts that, in general, the considerations of the national authorities may be regarded as constituting acceptable grounds for justifying the refusal to hand over the publications to the applicants. However, it notes that neither the decision of the enforcement judge, nor those subsequently delivered by the domestic courts demonstrate that an adequate balancing exercise was carried out in accordance with the criteria laid down by the Court, in cases relating to freedom of expression, between the applicant’s right to freedom of expression and other interests at stake, such as the maintenance of security and discipline in prisons. Even though the decision of the enforcement judge refers to the risk of misuse of books, such as starting fires, it does not consider the applicant’s personal situation to assess the potential impact and risks of delivering publications to him in prison. The subsequent decisions of the Assize Court and the Constitutional Court do not contain sufficient reasons to remedy these shortcomings either. The Court has previously stated that such an approach is inconsistent with the Article 10 of the Convention (see Osman and Altay, cited above, § 56, and Mehmet Ciftçi, cited above, § 40).

25.  In the light of the foregoing, the Court concludes that the Government have not demonstrated that the reasons relied on by the national authorities to justify the impugned measure were relevant and sufficient and that the measure was necessary in a democratic society.

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

APPLICATION OF ARTICLE 41 OF THE CONVENTION

27.  The applicant did not seek compensation for pecuniary damage but requested the symbolic sum of 1 euro in respect of non-pecuniary damage. For costs and expenses, he did not specify an exact amount but requested an estimate of the postal expenses incurred while applying to the Court. The applicant did not submit any receipts or invoices indicating the costs and expenses he had incurred before the Court.

28.  The Government contested those claims, arguing that the applicant had not fulfilled his obligations under Rule 60 of the Rules of Court to submit the necessary supporting documents with his written observations on the merits and that there was no causal link between the violation alleged and the damage claimed.

29.  As regards non-pecuniary damages, the Court considers that, having regard to the circumstances of the present case, the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage alleged.

30.  As regards costs and expenses claimed by the applicant, the Court notes that in accordance with its case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court rejects the claim for costs and expenses.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 17 December 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Péter Paczolay
 Deputy Registrar President