SECOND SECTION
DECISION
Application no. 21383/07
Nihat KONAK and others against Turkey
and 5 other applications
(see list appended)
The European Court of Human Rights (Second Section), sitting on 19 December 2017 as a Committee composed of:
Julia Laffranque, President,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above applications lodged on the various dates indicated in the appended table,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
1. A list of the applicants is set out in the appendix.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. The applicants are Turkish nationals and at the time of lodging their applications they were serving their prison sentences in various establishments. The names and dates of birth of the applicants, as well as the names of their representatives, and the dates of introduction of the applications appear in the appendix.
5. All of the applicants were found guilty of breaching prison order by decisions of the respective disciplinary boards of prisons in which they are held. Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, the applicants were sentenced respectively between 5 to 11 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 file, without hearing the applicants or their lawyers, pursuant to Law No. 4675 on Enforcement Judges, dated 16 May 2001. The details of the applications appear in the table below.
Application no.
and case name
Disciplinary Act committed
Type of sanction imposed on the applicant
Date of final decision delivered by the Assize Court
21383/07
Konak and others
v. Turkey
a) launching a hunger strike
b) banging on the doors of the cells
c) banging on the doors of the cells
d) banging on the doors of the cells
e) banging on the doors of the cells
f) banging on the doors of the cells
g) resisting prison guards
h) banging on the doors of the cells
a) ban from social activities for 2 months
b),c),d),e)
ban from receiving visitors for 3 months
f) cellular confinement for 5 days
g) ban from receiving visitors for 3 months
h) ban from receiving visitors for 3 months
a) 20/10/2006
b) 31/10/2006
c) 31/10/2006
d) 31/10/2006
e) 06/12/2006
f) 09/10/2006
g) 01/11/2006
h) 26/12/2006
2318/08
Demirhan
v. Turkey
a) Chanting slogans
b) Chanting slogans
c) Writing a petition to the prison administration supporting fellow prisoners on hunger strike
d) Chanting slogans
e) Vandalising prison property, resisting search and chanting slogans
a) 2-month ban on receiving visitors
b) 2-month ban on receiving visitors
c) 1-month deprivation of any paid work
d) 3-month ban on receiving visitors
e) 5 days’ solitary confinement,
2-month ban on receiving visitors and 2‑month ban on correspondence
a) 27 June 2007
b) 30 July 2007
c) 30 July 2007
d) 15 August 2007
e) 22 August 2007
29526/08
Çakıroğlu
v. Turkey
a) Resisting body search and chanting slogans
b) Resisting body search and chanting slogans
c) Resisting body search
a) 1 month ban on correspondence
b) 1-month ban on receiving visitors
c) 5 days’ solitary confinement
a) 13 December 2007
b) 16 January 2008
c) 17 March 2008
37870/08
Atabey
v. Turkey
Organising illegal activities within the prison
10 days’ solitary confinement and ban on cultural activities
6 March 2008
44628/08
Aydınalp
v. Turkey
writing petitions to national authorities
11 days’ cellular confinement
27 February 2008
46042/08
Kocatürk
v. Turkey
Banging on the doors of his cell
5 days’ solitary confinement
6 December 2006
B. Relevant domestic law
7. A description of the relevant domestic law may be found in Gülmez v. Turkey (no. 16330/02, §§ 13-15, 20 May 2008); Aydemir and others v. Turkey ((dec.), nos. 9097/05, 9491/05, 9498/05, 9500/05, 9505/05, and 9509/05, 9 November 2010); Çetin v. Turkey ((dec.), no. 47768/09, §§ 7-15, 14 June 2016); and Güngör v. Turkey ((dec.), no. 14486/09, §§ 12‑16, 4 July 2017).
COMPLAINTS
8. The applicants complained under Article 3 of the Convention about the solitary confinement that had been imposed on them as a disciplinary sanction, alleging that it had constituted an inhuman treatment.
9. The applicants complained under Article 6 § 1 of the Convention that they had been denied the right to a hearing during the disciplinary proceedings in question, as the domestic courts had delivered their decisions on the basis of the case file. They further alleged that the disciplinary boards and the domestic courts had lacked impartiality and independence. Based on the same complaint, some of the applicants also relied on Articles 13, 14, 17 and 18 of the Convention.
10. The applicants complained under Article 8 of the Convention that the disciplinary sanctions imposed on them had constituted an unfair restriction on their communication with others and had violated their right to respect for their private and family life.
THE LAW
A. Joinder
11. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
B. Article 3 of the Convention
12. The applicants complained that the solitary confinement imposed on them as a disciplinary punishment breached their right under Article 3 of the Convention.
13. The Government contested the allegations.
14. The Court recalls that in the case of Güngör v. Turkey ((dec.), no. 14486/09, §§ 12-16, 4 July 2017), which raised similar issues to those in the present case, it concluded that the 12 days’ solitary confinement that had been imposed on the applicant as a disciplinary sanction, had not met the minimum threshold of severity required to fall within the scope of Article 3 of the Convention.
15. In the present applications, the impugned solitary confinement sanctions were between five and eleven days. Having examined the cases, the Court sees no reason to depart from its conclusions in the case of Güngör, cited above.
16. Accordingly, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that this part of the application does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It should therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
C. Article 6 of the Convention
17. The applicants complained about the fairness of the disciplinary proceedings as the domestic courts had delivered their decisions on the basis of the case files without holding hearings. They maintained that they had been deprived of their right to defend themselves in person or through the assistance of a lawyer. In this connection, the applicants relied on Article 6 of the Convention. Some of the applicants, based on the same facts, also invoked Articles 13, 14, 17 and 18 of the Convention. The Court will examine these complaints solely under Article 6 of the Convention.
18. Referring to the amendment in domestic law, the Government asked the Court to reject this part of the applications for non-exhaustion of domestic remedies.
19. The Court notes that section 6 of the Law on Enforcement Judges was amended by Law no. 6008, so as to allow prisoners charged with disciplinary offences to defend themselves in person or through legal assistance. It further observes that the new law also provides a remedy for all prisoners previously charged with disciplinary offences: they had six months from the date of enactment of that law to lodge a fresh objection with the enforcement judge concerning their previous sentence. Such an objection would be examined by the enforcement judge in the light of the new procedure.
20. The Court has already examined that remedy and found it effective in respect of applications concerning prison disciplinary sanctions. In particular, it considered that the new remedy was accessible and provided reasonable prospects of success. In assessing the effectiveness of the new remedy, the Court had regard to sample decisions submitted by the Government, which indicated that following the lodging of objections, enforcement judges had re-evaluated the evidence in the case file and annulled the disciplinary sanctions in dispute, clearing the respective prisoners of all consequences of the offence (see Aydemir and others v. Turkey (dec.), nos. 9097/05, 9491/05, 9498/05, 9500/05, 9505/05 and 9509/05, 9 November 2010; Aksoy v.Turkey (dec.), no. 8498/05 and 158 others, 11 January 2011; Arslan v. Turkey (dec.), no. 9486/05, 25 January 2011; Güler v. Turkey (dec.), no. 14377/05, 25 January 2011; and Çetin v. Turkey (dec.), no. 47768/09, 14 June 2016).
21. Considering that there are no exceptional circumstances capable of exempting the applicants from the obligation to exhaust domestic remedies, the Court concludes that they should have availed themselves of the new remedy offered by Law no. 6008 of 25 July 2010.
22. This part of the application must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
D. Article 8 of the Convention
23. The applicants maintained that the prison disciplinary boards’ decisions had violated their rights under Article 8 of the Convention.
24. The Government argued that the applications should be rejected for non-exhaustion of domestic remedies as the applicants should apply to the Compensation Commission set up by Law no. 6384.
25. The Court observes that following the pilot judgment procedure applied in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012), on 9 January 2013 the Turkish National Assembly enacted Law no. 6384 on the resolution, by means of compensation, of applications lodged with the Court concerning length of judicial proceedings and non‑enforcement or delayed enforcement of judicial decisions. The competence of the Compensation Commission was subsequently extended by two decrees adopted on 16 March 2014 and 9 March 2016 respectively. The Court notes in this connection that the Compensation Commission has now the competence to examine complaints concerning an alleged breach of an applicant’s right to private and family life on account of the respective disciplinary sanctions imposed on detainees and convicted persons by the prison authorities.
26. The Court also notes that in the case of Çetin, cited above, it examined a similar complaint and declared the application inadmissible for non-exhaustion of domestic remedies.
27. In the light of the above considerations, the Court concludes the applicants should seek redress for their complaints by applying to the Compensation Commission.
28. It follows that this part of the applications should be rejected for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 18 January 2018.
Hasan BakırcıJulia Laffranque
Deputy RegistrarPresident
Appendix
No.
Application no.
Lodged on
Applicant
Date of birth
Represented by
21383/07
08/05/2007
Nihat KONAK
10/05/1964
Turgut KAYA
20/02/1973
Bayram KAMA
08/11/1972
İsmail YILMAZ
01/01/1954
Erol Volkan İLDEM
28/09/1982
Murat ÖZÇELİK
18/10/1984
Ulvi YALÇIN
20/03/1977
Muhammet AKYOL
01/01/1972
F. Oğuz ARSLAN
01/01/1975
Özgür ERTÜRK
28/04/1984
Gökhan ORUÇ
25/11/1985
Cihan KAHRAMAN
01/01/1983
Fatih Ergin ARPAÇ
17/08/1985
Hüseyin UZUNDAĞ
01/10/1984
Caner ULUÇ
01/01/1983
Gül ALTAY
2.
2318/08
13/01/2008
Baysal DEMİRHAN
10/11/1977
Gül ALTAY
3.
29526/08
09/06/2008
Mulla ÇAKIROĞLU
01/01/1971
Gül ALTAY
4.
37870/08
25/07/2008
Ergin ATABEY
01/01/1973
Mehmet ERBİL
5.
44628/08
27/08/2008
Engin AYDINALP
21/01/1971
Fahriye Belgün BABA
6.
46042/08
08/06/2008
Rasul KOCATÜRK
01/10/1965
Gülizar TUNCER
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