SECOND SECTION
DECISION
Applications nos. 26293/11 and 30248/12
Fethi OKTAY against Turkey
and Bülent ÖZÇAN against Turkey
The European Court of Human Rights (Second Section), sitting on 17 January 2017 as a Chamber composed of:
Julia Laffranque, President,
Işıl Karakaş,
Nebojša Vučinić,
Valeriu Griţco,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström,
Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above applications lodged on 4 April 2011 and 25 April 2012 respectively,
Having deliberated, decides as follows:
THE FACTS
1. The applicants are Turkish nationals, who were both born in 1968. The first applicant, Mr Fethi Oktay, was detained in the Bolu F-type prison and the second applicant, Mr Bülent Özçan, was detained in the Kırıkkale F-type prison when the present applications were lodged.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
Application No: 26293/11
3. On 21 January 2011 the Bolu prison disciplinary board decided to withhold the first applicant’s letter addressed to the Iranian Embassy in Turkey on the ground that the letter contained defamatory statements. The disciplinary board based its decision on Article 68 (3) of Law no. 5275 on the execution of sentences and preventive measures.
4. On 17 February 2011 the Bolu Enforcement Judge dismissed the applicant’s objection. Subsequently, on 21 March 2011 the Bolu Assize Court dismissed a further appeal lodged by the applicant.
Application No: 30248/12
5. On 27 December 2011 the Kırıkkale prison disciplinary board decided to withhold the second applicant’s letter addressed to a journalist, on the ground that the letter contained statements praising a terrorist organisation (PKK) and its leader. The disciplinary board based its decision on Article 68 (3) of Law no. 5275 on the execution of sentences and preventive measures and Article 123 § 3 of the Regulations on prison management and execution of sentences.
6. On 20 January 2012 the Kırıkkale Enforcement Judge dismissed the applicant’s objection, and on 24 February 2012 the Kırıkkale Assize Court dismissed a further appeal lodged by the applicant.
B. Relevant domestic law and practice
7. A full description of the domestic law and practice at the relevant time may be found in Sayan v. Turkey ((dec.), no. 49460/11, §§ 6-12, 7 July 2016).
COMPLAINT
8. The applicants complained that the respective prison administrations had prevented them from sending letters and had thus breached their right to communication. They did not invoke any specific article of the Convention.
THE LAW
9. Having regard to the similarity of the main issues under the Convention in the present cases, the Court decides to join the applications and consider them in a single decision.
10. The applicants maintained that the respective prison disciplinary boards’ decisions to withhold their private letters had violated their right to communication.
11. The Court considers that the complaints concerning interference with the applicants’ correspondence should be examined under Article 8 of the Convention, which in so far as relevant reads as follows:
“1. Everyone has the right to respect for ... his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
12. 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.
13. 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 alleged breach of the right to respect for correspondence of detainees or convicted persons, on account of the non-transmission of letters drafted in Turkish.
14. The Court reiterates that in the cases of Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013), and Demiroğlu v. Turkey ((dec.), 56125/10, 4 June 2013) it carried out a detailed examination of the context and scope of Law no. 6384 and the functioning of the Compensation Commission. It held in those cases that the applicants ought first to apply to the Compensation Commission in so far as it provided a new domestic remedy that was accessible and capable of providing redress in respect of their complaints. The Court consequently in both cases declared the applications inadmissible for non-exhaustion of domestic remedies (Sayan v. Turkey ((dec.), no. 49460/11, § 20, 7 July 2016).
15. The Court also reiterates that in the case of Sayan v. Turkey (cited above), it examined a complaint concerning interference with detainees’ letters drafted in Turkish with reference to the decree of 9 March 2016 and declared the application inadmissible for non-exhaustion of domestic remedies.
16. In the light of the above considerations, the Court concludes that there is no reason to depart from its former findings and the applicants should seek redress for their complaints by applying to the Compensation Commission.
17. It follows that 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 9 February 2017.
Stanley NaismithJulia Laffranque
RegistrarPresident
Full & Egal Universal Law Academy