SECOND SECTION
DECISION
Applications nos. 55644/19 and 10426/20
Mehmet Nuri ÖZEN
against Türkiye
The European Court of Human Rights (Second Section), sitting on 14 March 2023 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 applications 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 10 October 2019 and 5 February 2020 respectively, by a Turkish national, Mr Mehmet Nuri Özen (“the applicant”), who was born in 1976 and is detained in İzmir;
the decision to give notice of the complaint concerning Article 10 of the Convention 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 of the Republic of Türkiye, to the European Court of Human Rights, and to declare the remainder of the applications inadmissible;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The applications concern the seizure of a document of the applicant by the prison administration on the grounds that it contained passages from books which had been subjected to prohibition orders by judicial decisions.
2. At the material time, the applicant was a prisoner convicted of membership of the PKK (Workers’ Party of Kurdistan, an armed terrorist organisation) and was incarcerated in İzmir prison.
3. On an unspecified date the applicant handed a 131-page typed document to the prison administration to have it photocopied. Having examined the document, the letter-reading committee of the prison decided to refer it to the disciplinary board for further examination.
4. In a decision of 1 November 2018, relying on section 68(3) of the Law on the Execution of Sentences and Preventive Measures (Law no. 5275), the disciplinary board decided not to return the document to the applicant but to withhold it on the grounds that it contained quotations from two prohibited books by Abdullah Öcalan, the leader of the PKK, and could be used for organisational communication purposes. The disciplinary board further noted that the reproduction of periodicals and other publications by photocopying was contrary to the Law on Intellectual Property Rights (Law no. 5846).
5. The İzmir enforcement judge dismissed the applicant’s objections to the disciplinary board’s decision, holding that it was in compliance with the law and procedure. The judge noted that pages 1 to 56 of the document were identical to the book entitled Demokratik Uygarlık Çözümü-1 and pages 56 to 131 were identical to the book entitled Demokratik Uygarlık Çözümü-2, both of which had been prohibited by a decision of Diyarbakır Magistrates’ Court in 2016.
6. In decisions of 17 September 2019 and 30 December 2019, the Constitutional Court declared a complaint by the applicant based on his right to freedom of expression inadmissible as being manifestly unfounded.
7. The applicant complained that the prison administration’s decision not to return his document but to withhold it amounted to a violation of Article 10 of the Convention.
THE COURT’S ASSESSMENT
8. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
9. The Government argued that the complaint was inadmissible on three grounds. First, they argued that the application constituted an abuse of the right of individual petition, as the applicant had lodged two separate applications based on the very same facts. Second, the complaint was manifestly ill-founded as the national courts had examined the merits of the applicant’s complaint. Lastly, the Government argued that the applications were inadmissible as the applicant did not have victim status. The Government submitted that the applicant had not been subjected to any disciplinary sanction on account of being in possession of a document that included quotations from prohibited books. He had continued to use the prison library and had access to newspapers and other publications.
10. The applicant maintained his complaint.
11. In the circumstances of the present case, the Court considers that it is not called on to decide on the Government’s objections since the applications are inadmissible for the following reasons in any event.
12. The Court notes that it may examine of its own motion whether the applicant’s complaint is inadmissible under Article 35 § 3 (b) of the Convention, in application of the “significant disadvantage” criterion (see Ionescu v. Romania (dec.), no. 36659/04, § 30, 1 June 2010).
13. The Court reiterates the principles developed in its case-law concerning the criterion of significant disadvantage (see Korolev v. Russia (dec.), no. 25551/05, ECHR 2010; Giusti v. Italy, no. 13175/03, §§ 24-36, 18 October 2011; and Bartolo v. Malta (dec.), no. 40761/19, § 22, 7 September 2021).
14. As regards the question whether the applicant suffered a significant disadvantage on account of the prison administration’s decision not to return his document to him, the Court observes at the outset that the applicant had had that document in his possession for some considerable time and thus had the opportunity to access its content. In addition, the Court notes that, as the Government argued and the applicant did not contest, the document was composed of quotations from the prohibited books, which were not widely available through general distribution, so the confiscation could, in any event, not be considered to have put the applicant at a disadvantage compared with the rest of the population. The applicant was not subjected to any disciplinary sanction on account of his possession of that document and he was able to receive newspapers, books and other publications through the prison library or via other means provided by the prison administration. Accordingly, the Court notes that the applicant did not specify any particular difficulties he had suffered in his specific personal situation as a result of the prison administration’s decision, nor did he argue that the document seized by the prison administration was his own manuscript which could be considered to be the fruit of the exercise of his right to freedom of expression. In the light of these considerations, the Court is of the opinion that in the circumstances of the present case, the applicant has not suffered any “significant disadvantage” in the exercise of his right to freedom of expression (see, mutatis mutandis, Kaya and Bal v. Turkey (dec.) [Committee], no. 6992/18 and 3 other applications, §§ 21-30, 19 January 2021; Akkurt v. Turkey (dec.) [Committee], no. 41726/20, §§ 10-13, 22 February 2022; and Tekmenüray v. Turkey (dec.) [Committee], no. 30024/20, §§ 9-11, 29 March 2022).
15. As to the question whether respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the applications on the merits, the Court observes that it has already examined similar complaints and set out the principles deriving from its case-law on freedom of expression in prisons in judgments against Türkiye, particularly in Günana and Others v. Turkey (nos. 70934/10 and 4 others, 20 November 2018) and Mehmet Çiftci v. Turkey (no. 53208/19, 16 November 2021). Hence, the Court concludes that respect for human rights does not require the examination of these applications.
16. In the light of the foregoing, the Court finds that the present applications should be declared inadmissible in accordance with Article 35 § 3 (b) of the Convention, as amended by Protocols nos. 14 and 15.
For these reasons, the Court, unanimously,
Decides to join the applications;
Declares the applications inadmissible.
Done in English and notified in writing on 6 April 2023.
Dorothee von Arnim Jovan Ilievski
Deputy Registrar President