KORKMAZ A DEMİRCİ proti Turecku

SECOND SECTION

DECISION

Applications nos. 16546/19 and 19394/19
Maşallah KORKMAZ against Türkiye
and Ahmet Muhammed DEMİRCİ against Türkiye

The European Court of Human Rights (Second Section), sitting on 6 June 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. 16546/19 and 19394/19) 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”) by two Turkish nationals (“the applicants”), represented by different lawyers, on various dates, all indicated in the appended table;

the decision to give notice of the complaint concerning Article 8 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 no. 16546/19;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The applications concern disciplinary sanctions imposed on the applicants by the relevant prison administrations on the ground that during telephone calls, by means of teleconferencing or using speaker mode of a telephone, they had talked with people other than those they were allowed to speak to.

2. At the material time, the applicants were remanded in detention in Menemen and Tavşanlı Prisons.

3. On 11 August 2017 the disciplinary board of Menemen Prison decided to impose on Mr Korkmaz (“the first applicant”) the disciplinary sanction of restriction of the right to participate in certain activities for one month pursuant to section 40(2)(e) of the Law on the Enforcement of Sentences and Preventive Measures (Law no. 5275). The disciplinary board noted that, contrary to section 88 of the Regulations on management of prisons and the execution of sentences and preventive measures (“the Regulations”), concerning prisoners’ rights to telephone calls in prison, the applicant had talked with a third person during a telephone call by means of teleconferencing instead of just with the person whom he had previously requested permission to speak to.

4. On 4 August 2017 the administration and monitoring board of Tavşanlı Prison decided to impose on Mr Demirci (“the second applicant”) the disciplinary sanction of restriction of the right to make telephone calls for one month under section 88 of the Regulations. The disciplinary board noted that the applicant had talked on the telephone with people other than the person whose name he had submitted to the prison administration before the call, because that person’s telephone had been put on speaker mode.

5. The domestic courts dismissed objections by the applicants to the prison administrations’ decisions, concluding that the imposition of the sanctions had been in accordance with the applicable law and procedure. On 10 January 2019 and 26 September 2018 respectively, the Constitutional Court declared individual applications lodged by the applicants inadmissible as being manifestly ill-founded. The Constitutional Court’s decisions were subsequently notified to the applicants.

6. Relying on Article 8 of the Convention, the applicants complained to the Court that the disciplinary sanctions imposed on them had had no legal basis.

THE COURT’S ASSESSMENT

7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single decision.

8. The Government argued that the applications were inadmissible since the applicants had not suffered any significant disadvantage as a result of the disciplinary sanctions. The Government submitted that the applicants had been able to maintain contact with their families and receive news and information from outside the prison in various ways during the enforcement of the disciplinary sanctions. In that connection, the Government emphasised that the applicants had not been subjected to any restrictions in respect of their visiting rights, so their visitors and lawyers had been able to visit them during that period. In support of this, they provided tables indicating the actual number of visits the applicants had received. The Government further noted that the applicants had been able to send and receive correspondence and to use television and radio and had had access to newspapers and other publications during the same period. The Government particularly emphasised that the first applicant had not been subjected to any restrictions in respect of telephone access and that he had continued to make telephone calls during that period and had merely been deprived of the right to participate in cultural and sporting activities such as using the gymnasium, cinema and theatre or attending a glass ornament-making course. Lastly, they argued that the applicants had not explained what impact the disciplinary sanctions had had on their private lives.

9. The applicants did not specifically comment on this point. However, they reiterated that the disciplinary sanction in question had constituted a breach of their right to respect for their correspondence and private and family life under Article 8 of the Convention.

10. 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).

11. As regards the question whether the applicants suffered a significant disadvantage on account of the disciplinary sanctions, the Court observes at the outset that the disciplinary sanctions did not affect their visiting rights. In this connection, the Court notes, as the Government submitted and the applicants did not contest, that in the period between December 2017 and January 2018, when the sanctions against the applicants were enforced, the first applicant was visited by his family members eight times, while the second applicant received visits from members of his family six times. The Court also observes that the applicants did not allege that there had been any restrictions on the exercise of their right to send and receive correspondence when in prison as a result of which they had suffered any hardship. They were able to maintain face-to-face and written contact with their family and the outside world during the month when the sanctions were being enforced against them (contrast Subaşı and Others v. Türkiye, nos. 3468/20 and 18 others, § 101, 6 December 2022). In addition, the Court observes that the disciplinary sanctions imposed on the applicants were temporary in nature and lasted for a short period of time, namely for one month, and that the first applicant still had the right to make telephone calls during that period. The Court observes in particular that the applicants did not specify any particular difficulties they had suffered as a result of the enforcement of the sanctions in question in their specific personal situations. Given the foregoing analysis, the Court is of the opinion that, in the circumstances of the present case, the applicants have not suffered any “significant disadvantage” as regards their right to respect for their correspondence and their private and family life (compare also, 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; Tekmenüray v. Turkey (dec.) [Committee], no. 30024/20, §§ 9-11, 29 March 2022; and Tekmenüray and Incedere (dec.) [Committee], nos. 35527/19 and 16853/20, §§ 11-13, 28 February 2023).

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 has set out the principles deriving from its case-law on the right to respect for “private and family life” and “correspondence” in prisons in judgments against Türkiye, particularly in Nusret Kaya and Others v. Turkey (nos. 43750/06 and 4 others, §§ 49-52, ECHR 2014 (extracts)) and Subaşı and Others (cited above, §§ 100 and 105-108). The Court therefore concludes that respect for human rights does not require an 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) and 4 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 29 June 2023.

{signature_p_1} {signature_p_2}

Dorothee von Arnim Jovan Ilievski
Deputy Registrar President

Appendix

List of cases: