SECOND SECTION
DECISION
Applications nos. 35527/19 and 16853/20
Mehmet Şirin TEKMENÜRAY against Türkiye
and Suat İNCEDERE against Türkiye
The European Court of Human Rights (Second Section), sitting on 28 February 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 (nos. 35527/19 and 16853/20) against the Republic of Türkiye lodged with the Court on 26 June 2019 and 26 March 2020 under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Turkish nationals, Mr Mehmet Şirin Tekmenüray and Suat İncedere (the applicants), born in 1970 and 1971 respectively,
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 inadmissible the remainder of the application no. 16853/20;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The applications concern disciplinary sanctions of deprivation of certain communication means for a period of one month inflicted on the applicants by the prison administration for chanting slogans.
2. At the material time, the applicants were convicted prisoners in İzmir and Edirne prisons respectively.
3. On different dates the disciplinary boards of the İzmir and Edirne prisons decided to impose on the applicants the disciplinary sanction of restriction of certain communication means for chanting slogans pursuant to Article 42 § 2 (e) of the Law on the Enforcement of Sentences and Preventive Measures (Law no. 5275). The disciplinary boards noted that the applicants chanted slogans together with other inmates in such manner to disrupt order and discipline in prison.
4. The relevant execution judges and assize courts rejected the applicants’ objections to the prison administrations’ decisions concluding that the imposition of the sanction was in compliance with law and procedure. The Constitutional Court declared the applicants’ individual applications inadmissible for being manifestly ill-founded.
5. The applicants complained that the disciplinary sanctions imposed on them constituted a breach of their right to freedom of expression under Article 10 of the Convention.
THE COURT’S ASSESSMENT
6. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.
7. The Government argued that the application no. 16853/20 was inadmissible as the applicant did not suffer any significant disadvantage as a result of the disciplinary sanction. The Government submitted that the disciplinary sanction applied only in respect of letters, faxes, telegrams, and phone calls for a period of one month. However, the applicant was able to receive all those correspondences sent to him at the end of the execution of his disciplinary sanction. The applicant was not subjected to any restriction as regards his visiting rights hence his visitors and lawyer were able to visit him within the same period. The applicant was able to use television and radio and had access to newspapers and other publications within this period. Based on the similar grounds, the Government argued that the application no. 35527/19 was also inadmissible for being manifestly ill-founded.
8. The applicants disagreed with the arguments of the Government and reiterated that the disciplinary sanction in question constituted a breach of their right to freedom of expression under Article 10 of the Convention.
9. The Court notes that it may examine of its own motion whether the applicants’ complaint is admissible under Article 35 § 3 (b) of the Convention, namely the “significant disadvantage” criterion (see, Ionescu v. Romania (dec.), no. 36659/04, § 30, 1 June 2010).
10. The Court reiterates the principles developed in its case-law concerning the criterion of significant disadvantage (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).
11. As regards the question whether the applicants had suffered significant disadvantage on account of the restriction on communication for one month, the Court observes at the outset that the disciplinary sanction did not apply to their visiting rights. Thus, they were able to maintain contact with their family and outside world by way of visits. In addition, as submitted by the Government and was not objected by the applicants, they were able to receive newspapers and other publications within the same period and their usage of television and radio was not restricted. The Court also notes that the disciplinary sanction was in temporary nature and lasted for a short period of time, namely for one month, and that the applicants were entitled to receive all the correspondence addressed to them within that period once it expired. The Court observes in particular that, the applicants did not specify any particular difficulties they have suffered as a result of execution of the sanction in question in their specific personal situation. Under the foregoing, the Court is of the opinion that, in the circumstances of the present cases, the applicants have not suffered any “significant disadvantage” in the exercise of their right to freedom of expression (see, mutadis mutandis, Kaya and Bal v. Turkey (dec.), no. 6992/18 and 3 other applications, 19 January 2021; Akkurt v. Turkey (dec.), no. 41726/20, 17 March 2022; and Tekmenüray v. Turkey (dec.), 30024/20, 5 May 2022).
12. 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 penitentiary centres in judgments against Türkiye, particularly in Mehmet Çiftçi and Suat İncedere judgement (nos. 21266/19 and 21774/19, 18 January 2022). The examination of this application on the merits would not bring any new element to the Court’s existing case-law. Hence, the Court concludes that respect for human rights does not require examination of these applications.
13. 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 23 March 2023.
Dorothee von Arnim Jovan Ilievski
Deputy Registrar President