Subaşı v. Türkiye (European Court of Human Rights)

Information Note on the Court’s case-law
December 2022

Subaşı v. Türkiye – 3468/20, 5898/20, 7270/20 et al.

Judgment 6.12.2022 [Section II]

Article 8
Positive obligations
Article 8-1
Respect for correspondence
Respect for family life

Prisoners denied permission to receive visits from their school-age children and to make telephone calls at the weekends: violation

Facts – The applicants were remand and convicted prisoners held at various institutions across the country. The relevant legal framework gave prisoners the right to be visited once a week subject to the conditions determined by the prison administration. Restrictions were introduced by the applicants’ respective prison administrations to not allow visits during the weekends, citing overcrowding, shortage of staff and security concerns as the reasons for the decision. All the applicants had school-age children and complained that weekly visits organised only on weekdays and during working hours prevented them from seeing their children, who had an obligation to attend school. All the applicants, with two exceptions, unsuccessfully challenged the restriction. In addition, two applicants furthermore unsuccessfully challenged the prison administrations’ decisions to prohibit telephone calls at weekends.

Law – Article 8:

(a) Complaint concerning restrictions on weekend visits

(i) No significant disadvantage (all applicants): The prolonged periods during which the applicants had been unable to see their school-age children on a weekly basis as provided for by domestic law had not constituted an “insignificant” disadvantage. It had not been a trivial disadvantage that the applicants maintained contact with their children to a less frequent extent than would have been the case had weekend visits been available. Consequently, this objection was dismissed.

(ii) Victim status (two applicants) : While two of the applicants had obtained the reversal of the prison administrations’ impugned decisions, their complaints concerned the one-year period, during which they had been unable to receive visits on the weekends. The decisions of the domestic courts, including the Constitutional Court, had not contained any acknowledgment of a violation in respect of the period in question, nor had any redress been provided to the applicants, therefore, the applicants were considered victims for the period in question.

(iii) Merits

Although the applicants had been able to receive some visits from their children on weekdays they had not been able to make full use of their entitlement to weekly visits from their children owing to conflicts with school schedules, which amounted to an interference with the right to respect for family life. The restrictions on family visits had a statutory basis which had given the prison administrations the discretion to determine the days of the visits, provided that they were held once a week. Therefore, the interference complained of was “in accordance with the law”. The impugned restrictions pursued the legitimate aim of prevention of disorder.

Assessing the proportionality of the impugned restrictions, it was noted, in their requests to the prison administrations, all the applicants had pointed out the practical difficulties for their school-age children in visiting them on weekdays, including the long journey those visits entailed, given that the detention facilities had been a considerable distance from their homes. Lastly, they had complained of the negative effects of a prolonged lack of communication with their children on their family life. In their decisions to refuse weekend visits, all the prison administrations, except for one, had refused the requests in the same manner, by pointing to prison overcrowding, staff shortages and security concerns. It did not appear that the prison administrations in question had made a concrete assessment of how many prisoners had those specific needs or whether any alternative means of facilitating communication between imprisoned parents and their children had been possible. Furthermore, the economic burden on the prison administrations of conducting the visits at weekends had been described in vague terms and no consideration had been paid to the fact that permitting visits only on weekdays and during working hours had been very restrictive and burdensome in terms of maintaining the relationships between imprisoned parents and their children.

In this connection, Article 8 required States to take into account the interests of the prisoner and his or her family members and to evaluate them not in terms of broad generalities but in application to the specific situation. The regulation of such issues might not amount to the one-size-fits-all approach, and States were expected to develop their proportionality assessment technique, enabling the authorities to balance the competing individual and public interests and to take into account the peculiarities of a case, such as those in the present applications, namely the distance of detainee’s home from the prison, whether or not the detainee had school-age children and conflicts with school schedules when organising visits. The Court further noted that it had previously drawn the attention of the national authorities to the importance of the recommendations set out in the European Prison Rules of 2006 as applicable at the relevant time. It reiterated in that connection that the States had a positive obligation to help prisoners maintain contact with their families. In the case of imprisoned parents, Recommendation CM/Rec(2018)5 of the Committee of Ministers also encouraged authorities to facilitate communication between imprisoned parents and their children. Notably, if the imprisoned parent was detained far from home, the authorities were advised to arrange visits in a flexible manner with a view to maximising the quality and duration of the communication and preventing the interruption of the children’s educational activities.

In using their discretionary power to determine the days of the weekly visits, the prison administrations had made their decisions solely on the basis of considerations relating to the capacity of the prisons rather than the prisoners and their relationships with their children. It seemed that the restriction of visits to weekdays and to working hours had been intended to decrease the number of visitors so that it would be easier for the authorities to manage the visits. The domestic courts had accepted the impugned restriction solely on the basis of the reasons stated in the prison administrations’ decisions, by verifying whether the restriction had a legal basis without a concrete, Convention-compliant assessment. In that connection, it did not appear from the decisions of the trial courts that they had weighed up the competing interests or carefully considered the applicants’ arguments. The Constitutional Court had dismissed the individual appeals by the applicants in a summary fashion. It had referred to its case-law which had been pertinent to the restrictions introduced during the state of emergency, although the applicants’ complaints concerned the period after the state of emergency had been lifted, thus calling for a fresh examination. The domestic legal framework as applied in the current case had not provided the applicants with sufficient protection against arbitrary interference with their right to respect for family life, as required by the Convention.

Conclusion: violation (unanimously).

(b) Complaint concerning restrictions on weekend telephone calls (two applicants)

(i) Admissibility: In the context of the applicants’ complaint concerning the restrictions on their maintaining regular and meaningful contact with their children, and the importance for prisoners of maintaining contact with the outside world, the Court dismissed the Government’s objections as to the applicants’ lack of victim status and the lack of significant disadvantage suffered by them.

(ii) Merits

Although Article 8 could not be interpreted as imposing a general obligation to ensure prisoners’ access to telephones, since under Turkish law the applicants had the right to make telephone calls, any limitations on the use of that right at weekends for calls with their children had to be seen as an interference with their “private and family life” and “correspondence”. The Court was prepared to accept that the restriction on making telephone calls at weekends had had a basis in law and pursued the legitimate aim of prevention of disorder.

Regarding the necessity of those restrictions, the prison administrations’ decisions to prohibit telephone calls at weekends had been formulated in very general terms, without any concrete assessment of the needs of the prisoners or consideration of the positive obligations of the State in facilitating the prisoners’ contact with their children. Therefore, the Court’s findings with respect to weekend visits were likewise applicable in relation to the restrictions on telephone calls. The domestic authorities had engaged with the applicants’ Convention complaints in a superficial manner, depriving them of the procedural guarantees inherent in Article 8.

Conclusion: violation (unanimously).

Article 41: EUR 1,500 awarded to each applicant in respect of non-pecuniary damage. Claim in respect of pecuniary damage dismissed.

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