Přehled
Rozhodnutí
SECOND SECTION
DECISION
Application no. 22916/20
İsmail KOŞUM
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 application (no. 22916/20) 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 21 May 2020 by a Turkish national, Mr İsmail Koşum, who was born in 1975 and detained in Kahramanmaraş (“the applicant”);
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 application inadmissible;
the parties’ observations;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns the disciplinary sanction of restriction to participate in certain activities for a period of one month inflicted on the applicant by the prison authorities on account of certain statements in his petition to the Court of Cassation.
2. At the material time, the applicant was a convicted prisoner in Türkoğlu prison.
3. On 21 March 2019 the disciplinary board of the Türkoğlu prison decided to impose on the applicant the disciplinary sanction of restriction of participating in certain activities pursuant to Article 40 § 2 (e) of the Law on the Enforcement of Sentences and Preventive Measures (Law no. 5275) for speaking or behaving inappropriately towards the officials of the institution. In this regard the disciplinary board considered the applicant’s statement “May God throw all the tyrants of your organisation, from top to bottom, into the hole of hell...(Allah tüm teşkilatınızın zalimlerini tepeden tırnağa cehennem çukuruna atsın...)” in his petition to the Court of Cassation as inappropriate.
4. The applicant objected this decision before the Kahramanmaraş Execution judge and Assize Court respectively. The domestic courts dismissed his objection concluding that the imposition of the sanction was in compliance with law and procedure.
5. The disciplinary sanction was executed between 24 May and 23 June 2019 during which the applicant was prevented to attend to the sports activities performed in outdoor and indoor prison facilities.
6. The applicant complained that the disciplinary sanction imposed on him constituted a breach of his right to freedom of expression under Article 10 of the Convention.
THE COURT’S ASSESSMENT
7. The Government argued that the application was inadmissible as the applicant did not suffer any significant disadvantage as a result of the disciplinary sanction. The Government submitted that the applicant continued to enjoy other social and cultural activities offered by the prison administration and that he was able to maintain contact with other inmates. 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. The Government lastly noted that the sanction in question lasted for only one month and that the applicant did not specify any damage in his personal situation due to its execution.
8. The applicant disagreed with the arguments of the Government and reiterated that the disciplinary sanction in question constituted a breach of his right to freedom of expression under Article 10 of the Convention.
9. 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).
10. As regards the question whether the applicant had suffered significant disadvantage on account of the restriction to participate in sportive activities for one month, the Court observes at the outset that the disciplinary sanction did not apply to all activities in the prison and that the applicant continued to enjoy other social and cultural activities. As such, the Court considers that he was able to maintain contact with other inmates during the sanction and so the sanction did not amount to an isolation for him. The Court also observes that the disciplinary sanction was in temporary nature and lasted for a short period of time, namely for one month. The Court observes in particular that, the applicant did not specify any negative repercussion of the impugned sanction on his personal situation. He did not argue that he was prevented to participate in a specific sport activity that he had been following before or in those that he had planned to participate as a result of the sanction. Under the foregoing, 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, 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.), no. 30024/20, 5 May 2022).
11. 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 the present 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 this application.
12. In the light of the foregoing, the Court finds that the present application 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,
Declares the application inadmissible.
Done in English and notified in writing on 23 March 2023.
Dorothee von Arnim Jovan Ilievski
Deputy Registrar President