SECOND SECTION
DECISION
Application no. 45601/09
Sami ÖZBİL
against Turkey
The European Court of Human Rights (Second Section), sitting on 29 September 2015 as a Chamber composed of:
Paul Lemmens, President,
Işıl Karakaş,
Nebojša Vučinić,
Ksenija Turković,
Robert Spano,
Jon Fridrik Kjølbro,
Stéphanie Mourou-Vikström, judges
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 13 August 2009,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Sami Özbil, is a Turkish national, who was born in 1977 and is detained in the Kocaeli Prison. He was represented before the Court by Ms Ö. Gümüştaş, a lawyer practising in Istanbul.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. By a decision dated 15 May 2009 (no. 2009/29/52), the Education Committee of the Kocaeli prison decided not to allow the applicant to receive a copy of the daily newspaper, Hawar, published in Kurdish. In rendering its decision, the committee held that it was not in a position to establish whether the content of the publication was obscene or likely to endanger security in the prison.
4. The applicant’s appeals, lodged with the Kocaeli Enforcement Judge and the Kocaeli Assize Court, were dismissed on 16 June 2009 and 21 July 2009 respectively.
B. Relevant domestic law
1. Regarding the prisoners’ right to receive periodicals
5. A full description of the domestic law and practice at the relevant time may be found in Mesut Yurtsever and Others v. Turkey (nos. 14946/08, 21030/08, 24309/08, 24505/08, 26964/08, 26966/08, 27088/08, 27090//08, 27092/08, 38752/08, 38778/08 and 38807/08, §§ 78-80, 20 January 2015).
2. Regarding the competency of the Compensation Commission established by Law no. 6384
6. A full description of the relevant domestic law may be found in Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, §§ 9-17, 27 May 2014). In particular, Article 4, paragraph (d) of the decree adopted by the Council of Ministers on 10 February 2014, which was subsequently published in the Official Gazette on 16 March 2014, states that the Compensation Commission, which was established by Law no. 6384, is entitled to examine applications relating to complaints lodged by detainees/prisoners about the refusal of the prison authorities to hand over periodicals based on different grounds. Under the same decree, the Compensation Commission has competence ratione temporis to deal with applications lodged with the Court up until 23 March 2013.
COMPLAINTS
7. Relying on Articles 8, 9 and 10 of the Convention, the applicant complained of an interference with his right to receive information. Under Article 14 of the Convention, the applicant further maintained that he had been subjected to discrimination on account of his Kurdish origin. Finally, under Article 6 of the Convention, the applicant complained that the domestic courts had delivered their decisions on the basis of the file, without holding a hearing.
THE LAW
8. Relying on Articles 8, 9 and 10 of the Convention, the applicant complained that the refusal by the prison administrative authorities to provide him with a certain edition of a daily newspaper in Kurdish amounted to an interference with his right to receive information and ideas. The applicant further complained under Article 6 that the domestic courts delivered their decisions on the basis of the file, without holding a hearing. He also stated under Article 14 of the Convention that he had been subjected to discrimination on account of his ethnic origin.
9. At the outset, the Court considers that the applicant’s complaint concerning the refusal of the prison authorities to provide him with a certain edition of a daily newspaper should be examined from the standpoint of Article 10 of the Convention, which reads:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers...
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime ...”
10. The Court further observes that it has already examined a similar application in the case of Yurtsever and Others v. Turkey (nos. 14946/08, 21030/08, 24309/08, 24505/08, 26964/08, 26966/08, 27088/08, 27090//08, 27092/08, 38752/08, 38778/08 and 38807/08, 20 January 2015) and held that there had been a breach of Article 10 of the Convention.
11. In the present case, the Court must, however, pay attention to the requirement for an applicant to exhaust domestic remedies, contained in Article 35 § 1 of the Convention. The purpose of the exhaustion rule is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it. Accordingly, this rule requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts before they have had an opportunity to put matters right through their own legal system. The assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see Aydemir and Others v. Turkey (dec.), nos. 9097/05, 9491/05, 9498/05, 9500/05, 9505/05, and 9509/05, 9 November 2010; Vučković and Others v. Serbia (preliminary objection) [GC], no. 17153/11 and 29 other cases, §§ 69‑77, 25 March 2014; and Yıldız and Yanak v. Turkey (dec.), no. 44013/07, §§ 25‑27, 27 May 2014).
12. The Court also 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 enlarged by a decree adopted on 10 February 2014, and published in the Official Gazette on 16 March 2014. The Court notes in this connection that the Compensation Commission has the competence to examine applications relating to, among other issues, complaints lodged by detainees/prisoners about the refusal of the prison authorities to hand over periodicals based on different grounds (see Yıldız and Yanak, cited above, § 16).
13. The Compensation Commission is therefore empowered to award compensation to all individuals in line with the Court’s practice (see Turgut and others (dec.), no. 4860/09, 26 March 2013; Demiroğlu v. Turkey (dec.), no. 56125/10, 4 June 2013; and Bozkurt v. Turkey (dec.), no. 38674/07, §§ 12-21, 10 March 2015). The compensation awarded by the Compensation Commission will be paid by the Ministry of Justice within three months after the decision becomes final and will be exempt from any tax or charges. An appeal can be lodged against the Compensation Commission’s decision with the Regional Administrative Court, which should decide on the case within three months.
14. The Court further notes that the applicant may bring an individual application to the Constitutional Court against the decision of the Regional Administrative Court (see Ahmet Erol v. Turkey (dec.), no. 73290/13, 6 May 2014).
15. Moreover, the Court draws attention to the fact that should the compensation granted at the domestic level be insufficient in comparison with the amounts awarded by the Court in similar cases, it would be open to the applicant to claim that he was still a “victim” within the meaning of Article 34 of the Convention and to introduce a fresh application before the Court.
16. All of the above considerations lead the Court to conclude that the applicant should seek redress for his Convention complaints by using this new remedy under Law no. 6384.
17. It follows that the application should as a whole be rejected for non‑exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Done in English and notified in writing on 22 October 2015.
Stanley NaismithPaul Lemmens
RegistrarPresident
Full & Egal Universal Law Academy