Legal summary
August 2024
Namık Yüksel v. Türkiye - 28791/10
Judgment 27.8.2024 [Section II]
Article 8
Article 8-1
Respect for family life
Restrictions imposed on applicant’s contact with four-year-old son staying with his wife in the same prison: no violation
Facts – The applicant and his wife were convicted of aiding and abetting a terrorist organisation and each sentenced to three years and nine months’ imprisonment. The applicant’s wife was transferred to Gebze Prison together with their four-year-old son to serve her sentence. The applicant’s request, in order to have contact with his wife and son, to be transferred to the same prison to serve his sentence was granted. After his transfer the applicant filed a petition with the Gebze enforcement judge requesting an order for the prison administration to take measures to allow him to spend more time with his son. Simultaneously, the administration and observation board of Gebze Prison (“the observation board”) examined the applicant’s request and ordered that the applicant be allowed to have physical contact with his child for one hour during his non-contact visits and that the child and the parents could meet for one hour during monthly visits. Following the observation board’s decision, the Gebze enforcement judge examined the applicant’s petition and dismissed his request. The applicant’s objection against that decision was dismissed.
Law – Article 8:
The interference had been “in accordance with the law” and had pursued the legitimate aims of protecting the rights of others and the prevention of disorder. The remaining question was thus whether it had been necessary in a democratic society.
The Court reiterated that in cases involving the care of children and contact restrictions, the child’s interests must come before all other considerations. Where the family was in detention, while mutual enjoyment by parent and child of each other’s company constituted a fundamental element of family life, it could not be inferred from that that the sole fact that the family unit was maintained necessarily guaranteed respect for the right to a family life. Furthermore, Article 8 required the States to take into account the interests of the prisoner and his or her family members and to evaluate them not in terms of broad generalities but in relation to the specific situation. The issue of the contact with a child whose both parents were in detention had not been explicitly addressed in the relevant international material, according to which the best interests of the child were to be a primary consideration in all actions concerning them. The right of a child who was separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if that contact was contrary to the child’s best interests, was the common principle referred to in that material and international standards providing principled guidance as regards the holding of children in prison with their imprisoned parents.
At the time of the events, both the applicant and his wife had been serving prison sentences following their conviction for aiding and abetting a terrorist organisation. The national authorities, in allowing a request by the applicant’s wife in that regard, had placed her and their son in a section of the Gebze prison which had been designated for prisoners convicted of ordinary offences rather than terrorism-related offences, notwithstanding she had been convicted of the latter. Furthermore, the applicant’s request to be transferred to the Gebze Prison, in order to maintain regular contact with his wife and son had been granted. Moreover, immediately after his transfer to the Gebze Prison, the applicant had filed a petition with the national authorities, requesting that they take certain measures to allow him to spend more time with his son. In that connection, the observation board of the Gebze Prison, on the basis of humane grounds, had decided that he could have contact visits with his son for one hour once a week in the visiting area and that the child and the parents could meet for one hour during monthly visits. In that context, although prisoners had been entitled to have contact visits with their family members only once per month pursuant to the relevant Regulations on visiting rights, the decision of the observation board had enabled the applicant to have contact visits with his son four times per month.
Regarding the decision-making process, the members of the observation board had included the prison’s doctor, teacher and psychologist, who had been in the best position to assess the best interests of the child, as they had been in direct contact with him and were familiar with the conditions of the prison in question. Subsequently, the applicant had also had the possibility to file objections to the prison administration decision and to present his additional contact requests before the enforcement judge and assize court, which had found appropriate the contact arrangements that had been put in place by the observation board. Additionally, it had not been in dispute that the visiting rights of the applicant had been extended and that there had been no restriction put in place in practice by the national authorities as regards the enjoyment of those contact rights. However, even assuming that, as alleged by the applicant, the opportunity could not be used in practice because of the child’s emotional response to following the relevant procedures for his transfer within the prison, on a practical basis, there might indeed come a stage where it became futile, if not counterproductive and harmful, to attempt to force a child to conform to a situation which, for whatever reasons, he or she resists. Coercive measures against children were not desirable and must be limited in that sensitive area. A parent could not be entitled under Article 8 to have such measures taken as would harm the child’s health and development.
The domestic authorities, by allowing the applicant to have his son with him in the visiting area for one hour during the non-contact visits once a week and to meet his wife and son for one hour during monthly contact visits, had taken all necessary steps that could have been reasonably expected from them. Having regard to the prison context, the applicant had not demonstrated in which other ways he could have spent more time with his son during his approximately eight months stay in the same prison. In the particular case-circumstances a fair balance had been struck between the competing interests by the national authorities, which had taken considerable measures in good faith to defend the best interests of the child and to allow the applicant to maintain regular contact with his son.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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