SECOND SECTION
CASE OF USLU v. TÜRKİYE
(Application no. 51590/19)
JUDGMENT
STRASBOURG
21 March 2023
This judgment is final but it may be subject to editorial revision.
In the case of Uslu 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. 51590/19) 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 5 July 2019 by a Turkish national, Mr Mustafa Uslu (“the applicant”), who was born in 1984, lives in Düzce, and was represented by Mr M. Çabuk, a lawyer practising in Düzce;
the decision to give notice of the complaints under Article 10 of the Convention and Article 1 of Protocol No. 1 thereto 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 application concerns the seizure of the applicant’s (paper) notebooks by the prison administration on the grounds that some prisoners suspected of the offence of membership of an organisation referred to by the Turkish authorities as “FETÖ/PDY” (“Fetullahist Terror Organisation/Parallel State Structure”) used notebooks to communicate with each other and that some of the notebooks contained information, such as names and statements, capable of revealing the identity of third parties, thus posing a security risk.
2. At the material time, the applicant was in detention on remand in Düzce Prison.
3. During searches of the applicant’s cell on 30 September and 16 October 2016, prison officers seized two notebooks belonging to him containing drafts of his defence submissions before the national courts, notes addressed to his family and notes describing his experiences during the pending criminal proceedings against him.
4. The applicant applied to the prison administration requesting the return of his notebooks. By a decision of 25 October 2016, the prison administration dismissed his request, finding that notebooks had been used by some prisoners suspected of the offence of membership of FETÖ/PDY to communicate with each other and that those notebooks contained information capable of revealing the identity of third parties, thus posing a security risk.
5. The Düzce enforcement judge and the Düzce Assize Court in turn dismissed objections lodged by the applicant to the prison administration’s decision, holding that it was in line with the relevant law and procedure.
6. On 12 March 2019 the Constitutional Court declared a complaint lodged by the applicant concerning the right to freedom of expression inadmissible as being manifestly unfounded. The Constitutional Court declared his further complaint as regards the right to property likewise inadmissible for failure to exhaust available remedies.
7. In the meantime, in July 2017, the notebooks were handed over to the applicant’s wife. Subsequently, on 8 August 2017, the applicant was released from detention.
THE COURT’S ASSESSMENT
ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION8. Relying on Article 6 § 1 of the Convention, the applicant alleged that the seizure of his notebooks by the prison authorities had no legal basis. Under the same Article, he complained that the reasons given by the national authorities in their decisions had been inadequate. Relying on Article 8 of the Convention, the applicant complained that the seizure of his notebooks, which contained accounts addressed to his family members of the events he had experienced and his feelings, as well as drafts of his defence submissions before the national courts, infringed his right to respect for his private life. The applicant also complained that the seizure of his notebooks constituted a violation of Articles 9 and 10 of the Convention.
9. The Court notes that the documents seized by the prison authorities were manuscripts created by the applicant. It considers that those documents were indisputably the result of the exercise by the applicant of his right to freedom of expression.
10. 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).
11. The Government raised three objections as to admissibility. Firstly, they submitted that since the notebooks had been returned to the applicant when he was released and no sanction had been imposed on him on account of the notebooks, the applicant did not have victim status. Secondly, the Government maintained that the complaint was inadmissible on account of the applicant’s failure to apply for compensation under Article 141 of the Turkish Code of Criminal Procedure (Law no. 5271). In support of the last‑mentioned objection, the Government submitted two judgments of the 4th Civil Chamber of the Court of Cassation, dated 22 May 2019 and 1 July 2020, which concluded that assize courts had jurisdiction under Article 141 of the Code of Criminal Procedure in respect of compensation claims concerning sentence-execution procedures carried out under the supervision and monitoring of the public prosecutor’s office and the enforcement judge. Lastly, noting the principle of subsidiarity, they submitted that the complaint should be declared inadmissible as being manifestly unfounded, as the Constitutional Court had duly examined it on the merits and declared it inadmissible.
12. As regards the Government’s first objection relating to the applicant’s victim status, the Court is of the opinion that the fact that the notebooks were returned to the applicant after some time, namely some ten months later, does not entail an acknowledgement of a breach of Article 10 of the Convention and is thus not sufficient to deprive him of victim status (see, mutadis mutandis, Murat Türk v. Turkey [Committee], no. 20686/19, § 10, 5 April 2022).
13. As to the Government’s second objection, regarding exhaustion of domestic remedies, the Court reiterates that Article 35 of the Convention requires only the exhaustion of remedies which are effective and available – that is to say, remedies which are accessible, are capable of providing redress in respect of the applicant’s complaints and offer reasonable prospects of success. In the present case, in its decision of 12 March 2019 the Constitutional Court examined the merits of the applicant’s complaint concerning the right to freedom of expression and declared it inadmissible as being manifestly ill-founded and not for non-exhaustion of remedies. Furthermore, the Government did not present any example of judgments delivered by domestic judicial authorities accepting compensation claims in similar circumstances. The Court therefore dismisses the Government’s objection in this respect (see, mutadis mutandis, Baş v. Turkey, no. 66448/17, § 121, 3 March 2020, and the cases cited therein).
14. As regards the Government’s last objection, the Court considers that the argument put forward by the applicant raises issues requiring an examination of the merits of the complaint under Article 10 of the Convention. 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.
15. The Court considers that the seizure of the applicant’s notebooks, which contained accounts of his feelings and experiences relating to the criminal proceedings he faced, 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).
16. The Government submitted that the legal basis for the interference complained of was section 36 of the Law on the Execution of Sentences and Preventive Measures (Law no. 5275) and Article 46 of the Regulation on principles to be observed in the enforcement of sentences and preventive measures.
17. The applicant maintained that the provisions referred to by the Government concerned solely the conduct of “searches” in prisons but not the seizure of manuscripts.
18. 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).
19. In the present case, the Court notes that the national authorities did not rely on any legal basis when ordering the seizure of the applicant’s notebooks and dismissing his objections to that decision. The Court further observes that section 36 of Law no. 5275 and Article 46 of the Regulation, indicated by the Government as the legal basis for the impugned measure, concern the conduct of searches in prisons but not the seizure of prisoners’ manuscripts. Thus, the Court sees no reason in the present case to depart from its approach in the above-mentioned cases (see paragraph 18 above).
20. On the basis of the foregoing, the Court finds that the impugned 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.
21. There has accordingly been a violation of Article 10 of the Convention.
OTHER COMPLAINT22. The applicant also complained under Article 1 of Protocol No. 1 to the Convention about the seizure of his notebooks by the prison authorities. Having regard to the facts of the case, the submissions of the parties and its findings above, the Court considers that no separate issue arises under this head.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
23. The applicant claimed 5 euros (EUR) in respect of pecuniary damage, corresponding to the value of his notebooks. He further claimed EUR 50,000 in respect of non-pecuniary damage. He also claimed EUR 1,275 for the costs and expenses incurred before the Court in respect of his lawyer’s fees and postal expenses. He submitted the Turkish Bar Association’s recommended fee scales and two postage receipts in the amount of EUR 35.
24. The Government contested those claims.
25. 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 (compare Murat Türk, cited above, § 19).
26. As regards the lawyer’s fees, the Court notes that the applicant failed to submit any documentary evidence, such as bills, receipts, a contract, a fee agreement or a timesheet showing the hours spent by his lawyer on the case. Accordingly, the Court rejects this claim. As regards the postal expenses, regard being had to the documents in its possession, the Court considers it reasonable to award the applicant EUR 35 under this head, plus any tax that may be chargeable to the applicant.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
Declares the complaint concerning Article 10 of the Convention admissible;Holds that there has been a violation of Article 10 of the Convention;Holds that no separate issue arises under Article 1 of Protocol No. 1 to the Convention;Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant;Holds(a) that the respondent State is to pay the applicant, within three months,
EUR 35 (thirty-five 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;
(b) 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