KAHRAMAN proti Turecku

SECOND SECTION

DECISION

Application no. 34184/20
Mustafa KAHRAMAN
against Türkiye

The European Court of Human Rights (Second Section), sitting on 24 March 2026 as a Committee composed of:

Jovan Ilievski, President,
Péter Paczolay,
Juha Lavapuro, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 34184/20) 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 16 July 2020 by a Turkish national, Mr Mustafa Kahraman (“the applicant”), who was born in 1982, lives in Istanbul and was represented by Ms F.K. Karaoğulları, a lawyer practising in Istanbul;

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 Abdullah Aydın, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, 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 seizure and continued retention of the applicant’s personal diary which he kept in his prison cell.

1. Seizure and retention of the applicant’s diary during a general search of his prison ward

2. At the material time, the applicant was detained at Menemen T‑Type Closed Penal Institution (“the prison”) for the offence of membership of an armed terrorist organisation described by the Turkish authorities as the “Fetullahist Terror Organisation/Parallel State Structure” (“FETÖ/PDY”).

3. During a general search of the applicant’s prison ward on 8 November 2016, prison officers seized a diary belonging to him.

4. By a decision of 15 November 2016, the prison administration ordered the continued retention of the applicant’s diary. It found the content of the diary inappropriate, considering that it denigrated the State, compromised prison security, and threatened public order. The prison administration sent the diary to the public prosecutor for further examination.

5. The Karşıyaka enforcement judge and the Karşıyaka Assize Court, on 5 and 23 December 2016 respectively, dismissed objections lodged by the applicant against the prison administration’s decision, holding that it had been in compliance with the relevant law and procedure. The applicant was notified of the Assize Court’s decision on 23 August 2017.

2. Criminal proceedings initiated against the prison officers

6. On 22 August 2017 the applicant lodged a criminal complaint with the public prosecutor against several prison officers, alleging abuse of office in connection with the seizure and retention of his diary and other related matters.

7. On 21 December 2017 the public prosecutor issued a decision not to prosecute, finding on the basis of correspondence between the public prosecutor’s office and the prison authorities that there had been no fault or negligence on the part of the prison officers.

8. The applicant lodged an objection against that decision. On 16 January 2018 the Karşıyaka 2nd Magistrate’s Court dismissed the applicant’s objection, and the decision became final. The applicant was notified of that decision on 22 January 2018.

3. Proceedings before the Turkish Constitutional Court

9. On 2 February 2018 the applicant lodged an individual application with the Constitutional Court, alleging a violation of his right to respect for his private life on account of, among other things, the decision not to prosecute the prison officers who had seized his diary and the fact that the diary had not been returned to him.

10. On 28 January 2020 the Turkish Constitutional Court examined the complaint under the right to protection and development of one’s material and spiritual existence and declared it inadmissible as being manifestly ill‑founded.

THE COURT’S ASSESSMENT

11. The applicant complained of a violation of his right to respect for private life under Article 8 of the Convention and of his freedom of expression under Article 10 of the Convention on account of the seizure and continued retention of his diary. Relying on Article 1 of Protocol No. 1 to the Convention, the applicant further complained that the seizure of his diary constituted an unjustified interference with his right to the protection of his possessions.

12. Having regard to the nature of the seized material, the Court, being the master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 126, 20 March 2018), considers that the application falls to be examined solely under Article 8.

13. The Government raised an objection of inadmissibility, alleging that the applicant had not exhausted the available domestic remedies. They contended that the grievances raised by the applicant in his individual application form before the Constitutional Court had concerned the criminal proceedings he had initiated against the prison officers for certain actions they had taken, including the seizure and retention of his diary, rather than the proceedings before the enforcement judge and the Assize Court concerning the seizure and retention of his diary, which was the subject matter of his application to the Court.

14. The applicant did not submit any arguments in that regard.

15. The general principles concerning the exhaustion of domestic remedies have been summarised in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69‑77, 25 March 2014).

16. The Court reiterates, in particular, that the obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are available and sufficient in respect of his or her Convention grievances (see Vučković and Others, cited above, § 71). To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Vučković and Others, cited above, § 74). In the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. However, to comply with the exhaustion rule in Article 35 § 1 of the Convention, applicants who have at their disposal a domestic remedy plainly more suited to their situation must attempt it, even if they have already resorted to a less effective one (see Zlatanov v. Bulgaria (dec.), no. 53050/21, § 174, 30 January 2024; Dumpe v. Latvia, no. 71506/13, §§ 61 and 70-76, 16 October 2018; and Köhler v. Germany (dec.), no. 3443/18, §§ 67-74, 7 September 2021).

17. In the present case, the Court observes that the applicant complained about the seizure and continued retention of his diary by prison authorities. The Court further observes that in his individual application form lodged with the Constitutional Court, the applicant complained that his right to respect for his private life had been violated on account of the decision not to prosecute the prison officers who had seized his diary and the fact that the diary had not been returned to him (see paragraph 9 above). However, he did not raise in that application a complaint concerning directly the measure of seizure itself or any other argument to the same effect. The Court notes in that context that, although the applicant was aware of the Karşıyaka Assize Court’s decision of 23 December 2016 – having been served with it on 23 August 2017 (see paragraph 5 above) – he does not seem to have lodged an individual application with the Constitutional Court, within thirty days of the notification of the Assize Court decision as prescribed by Law no. 6216 (see Uzun v. Türkiye (dec.), no. 10755/13, § 25, 30 April 2013), in respect of those proceedings, which concerned precisely the impugned seizure measure that he complained about in the present case before the Court and thus would have directly addressed his grievance. The compliance with fundamental rights of the seizure measure could have been addressed in such proceedings irrespective of the question of any criminal liability of the prison officers involved in the seizure and would therefore have been plainly more suited to redress the applicant’s Convention grievance.

18. The Court therefore considers that the applicant did not properly raise his complaint under Article 8 of the Convention regarding the seizure and continued retention of his diary by the prison authorities before the Constitutional Court.

19. It follows that the Government’s objection must be upheld and that this application must be rejected for non-exhaustion of domestic remedies in accordance with 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 30 April 2026.

Dorothee von Arnim Jovan Ilievski
Deputy Registrar President