ATILLA proti Turecku

SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 18139/07
by Abdurrahim ATİLLA and 57 other applications
against Turkey

The European Court of Human Rights (Second Section), sitting on 11 May 2010 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş,
Kristina Pardalos, judges,
and Sally Dollé, Section Registrar,

Having regard to the above applications lodged on 16 April 2007,

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

The applicants are Turkish nationals and at the time of their applications they were all but six[1] in pre-trial detention in Diyarbakır F-type Prison. The names and dates of birth of the applicants appear in the appendix. They were all represented before the Court by Mr M. Şahin and Mr O. Çelik, lawyers practising in Diyarbakır.

On 7 September 2006 the applicants announced a collective two-day hunger strike in protest against the conditions of detention of Abdullah Öcalan, leader of the PKK (the Workers’ Party of Kurdistan), an illegal, armed organisation. On 11 September 2006 the Diyarbakır F-type Prison Disciplinary Board imposed a disciplinary sanction on the applicants, consisting of a one-month ban on sports activities and conversation in groups (spor ve sohbet etkinlikleri), for launching a hunger strike and forming a group with a view to breaching the regulations. The applicants lodged appeals, which were rejected by the Diyarbakır Enforcement Court and the Diyarbakır Assize Court on 25 September and 9 October 2006 respectively. The final decision was deposited with the registry of the court on 10 November 2006.

B. Relevant domestic law

Law no. 5275 on the Enforcement of Sentences and Preventive Measures provides as follows:

Article 40

“1. The penalty of a deprivation of certain activities deprives convicts of the right to participate in the prison workshops and sports activities from one to three months.

2. The acts requiring the penalty of a deprivation of certain activities are as follows:

...

(g) launching a hunger strike ...”

COMPLAINTS

The applicants complained under Articles 9 and 10 of the Convention that the disciplinary punishment which had been imposed on them because they launched a hunger strike had violated their freedom of thought and expression. They contended that the hunger strike had been a peaceful way of expressing their opinions.

THE LAW

In view of the similarity of the applications, both as regards facts and law, the Court deems it appropriate to join and examine them together.

The applicants submitted that the disciplinary punishment imposed on them because they had launched a hunger strike in support of Abdullah Öcalan had infringed their freedom of thought and expression.

At the outset the Court considers that these complaints are to be examined solely under Article 10 of the Convention – freedom of expression.

The Court finds that the disciplinary punishments did indeed amount to an “interference” with the applicants’ freedom of expression. Such an interference will constitute a breach of Article 10 unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is “necessary in a democratic society” in order to achieve the aim or aims in question.

The Court observes that the impugned measure was “prescribed by law”, as it was based on section 40 of Law No. 5275.

The Court reiterates that any restrictions on Convention rights must be justified, although such justification may well be found in considerations of security, in particular the prevention of crime and disorder, which inevitably flow from the circumstances of imprisonment (see, for example, Silver and Others v. the United Kingdom, 25 March 1983, § 99-105, Series A no. 61, where broad restrictions on the right of prisoners to correspond fell foul of Article 8, but the stopping of specific letters containing threats or other objectionable references was justifiable in the interests of the prevention of disorder or crime; see also, mutatis mutandis, Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 69, 6 October 2005). In the circumstances of the present case, the Court finds that the interference pursued the legitimate aim under Article 10 § 2 of preventing disorder.

It remains to be determined whether the measure was “necessary in a democratic society”.

The Court observes that Law No. 5275 lists punishable acts, the penalties relating to them and the procedure to be followed. In section 40, “launching a hunger strike” had been defined as a punishable act. In the present case, the applicants were disciplined for having breached the prison order protected under the foregoing provision, rather than for having expressed their opinions.

The Court queries whether such a blanket restriction on hunger strikes is compatible with Article 10 of the Convention. Nevertheless, given the particular circumstances of the present case, it does not deem it necessary to determine that question.

The Court notes that moderate disciplinary punishments were imposed by the State in order to prevent or deter the applicants from launching their hunger strikes and to re-establish order in the prison should a campaign of that kind be initiated. On this point, regard must be had to the collective nature of the applicants’ protest, as well as the type of prisoners involved. Many of these prisoners were apparently supporters of the PKK, an illegal armed organisation. The Court considers that a protest of this nature and scale could reasonably have been seen by the prison authorities as a threat to prison order. Moreover, it is of the view that the penalties imposed, involving a one-month ban on the applicants’ sports activities and conversations in groups, cannot be regarded as disproportionate to the legitimate aim pursued, namely the prevention of disorder, within the meaning of Article 10 § 2 of the Convention.

In the light of the foregoing considerations and the specific circumstances of the case, the Court concludes that the interference with the applicants’ freedom of expression does not disclose any appearance of a violation of Article 10 of the Convention. The applications must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Declares the applications inadmissible.

Sally Dollé Françoise Tulkens
Registrar President

APPENDIX

[1]. With the exception of six applicants in cases nos. 18231/07, 18244/07, 18246/07, 18298/07, 18315/07, 18521/07.