ERDEM proti Turecku

SECOND SECTION

DECISION

Application no. 16181/20
Murat ERDEM
against Türkiye

The European Court of Human Rights (Second Section), sitting on 7 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. 16181/20) 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 13 March 2020 by a Turkish national, Mr Murat Erdem, who was born in 1973 and lives in Adana (“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, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the compatibility with Article 10 of the Convention of the prison authorities’ refusal of the applicant’s request to receive the daily newspaper “Yeni Asya (New Asia)” in prison.

2. The applicant was convicted of membership of the organisation described by the Turkish authorities as FETÖ/PDY – (“Fetullahist Terror Organisation/Parallel State Structure”) and was serving his prison term in the Osmaniye 1st T Type Penitentiary Institution (Penitentiary Institution) at the material time.

3. On 20 April 2017, pursuant to Article 62 of Law no. 5275 on the Enforcement of Sentences and Preventive Measures, the Training Board of the Penitentiary Institution (Training Board) decided not to provide the prisoners linked to FETÖ/PDY the daily newspaper Yeni Asya on the grounds that it was established that the aim of receiving this newspaper was to keep the motivation of these prisoners high by ensuring communication among them.

4. On 9 July 2018 the applicant submitted an objection to the Osmaniye Enforcement Judge stating that the newspaper in question was not given to him and requesting the rectification of this practice. On 18 July 2018 the Osmaniye Enforcement Judge decided to dismiss the applicant’s objection.

5. The applicant’s appeal dated 17 August 2018 was rejected by the Osmaniye 1st Assize Court on 9 October 2018.

6. On 22 October 2018 the applicant lodged an individual application with the Constitutional Court.

7. According to the information submitted by the parties notably in their observations, this individual application was still pending before the Constitutional Court.

THE COURT’S ASSESSMENT

8. The applicant complained under Article 6 § 2 of the Convention about the refusal by the prison administration of his request to receive the daily newspaper Yeni Asya. Having regard to the wording and substance of the applicant’s complaint, the Court will examine this complaint under Article 10 of the Convention (Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018).

9. The Government argued that the application was premature since the applicant’s individual application to the Constitutional Court was still pending and the Constitutional Court’s decision of 30 September 2019, indicated by the applicant as the decision rendered by that court regarding his individual application, was not relevant to the applicant’s present application to the Court. Accordingly, they invited the Court to declare the application inadmissible due to non-exhaustion of domestic remedies.

10. The applicant did not respond to the arguments put forward by the Government concerning the exhaustion of domestic remedies. He merely stated in general that the observations of the Government were unreasonable and not based on law.

11. The Court recalls that it has already noted in its decision in Uzun v. Turkey ((dec.), no. 10755/13, §§ 52, 62-64 and 68-69, 30 April 2013) that the Turkish legislature has given the Constitutional Court specific jurisdiction to review the compatibility with the provisions of the Convention of all court decisions that became final after 23 September 2012 and to grant appropriate redress in the event of a violation of the rights guaranteed by that instrument. Therefore, in order to exhaust domestic remedies, applicants must lodge an individual application with, and obtain a decision by, the Constitutional Court prior to bringing their complaints before this Court.

12. According to the information and documents submitted by the parties, the applicant’s individual application is still pending before the Constitutional Court.

13. Therefore, the application is premature and must 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 9 March 2023.

Dorothee von Arnim Jovan Ilievski
Deputy Registrar President