Hebun Hakan AKKAYA
The European Court of Human Rights (Second Section), sitting on 22 January 2019 as a Committee composed of:
Julia Laffranque, President,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 25 May 2009,
Having regard to the decision of 27 March 2012,
Having deliberated, decides as follows:
1. The applicant, Mr Hebun Hakan Akkaya, is a Turkish national, who was born in 1992 and lives in Diyarbakır. He was represented before the Court by Ms M. Danış Beştaş, and Mrs M. Beştaş, lawyers practising in Diyarbakır.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. Criminal Proceedings against the applicant
4. On 14July 2008 the applicant was arrested and taken into custody on suspicion of making propaganda in support of a terrorist organisation, namely the PKK.
5. On 17July 2008 the judge at the Diyarbakır Assize Court ordered his pre‑trial detention.
6. On 20July 2008 the public prosecutor filed an indictment with the Diyarbakır Assize Court, charging the applicant with membership of a terrorist organisation and disseminating propaganda in favour of that organisation.
7. On 22April 2009 the Diyarbakır Assize Court convicted the applicant for committing crimes in support of a terrorist organisation and sentenced him to a total of six years and eleven months’ imprisonment. The court further ordered the applicant’s release pending trial.
8. According to the information obtained from the website of the Court of Cassation, on 26June 2012 the Court of Cassation quashed the judgment of 22April 2009, and the criminal proceedings against the applicant are still pending.
2. Disciplinary sanction imposed on the applicant’s father
9. The applicant, who was a minor at the time, was detained at the Diyarbakır E type Juvenile Prison and he was entitled to have weekly visits from his family members. On 2December 2008 the applicant’s father visited him in prison. During the visit, the applicant’s father made hand gestures to symbolise the victory of the PKK. Although warned by prison guards, he continued provoking other detainees and their relatives. On 3 December 2008 the Disciplinary Board of the Diyarbakır E‑Type Prison (“the Board”) imposed a disciplinary sanction on the applicant’s father pursuant to Section86§ 8 of Lawno 5275 on the enforcement of sentences and preventive measures (“Law no. 5275”), and prohibited him from visiting his son, namely the applicant, for a period of one year, on the ground that he had provoked the detainees and the visitors by doing a victory sign of the terrorist organisation during his visit of 2 December 2008.
10. On 16 February 2009 the applicant’s lawyer filed an objection on behalf of the applicant against the above-mentioned disciplinary sanction. On 2March 2009 the Diyarbakır Enforcement Court dismissed this objection. On 16March 2009 the Diyarbakır Assize Court dismissed the objection of the applicant’s lawyer.
11. According to the information provided by the Government, until his release on 22April 2009 the applicant continued received weekly visits from other family members, such as his mother and his sister. He was also allowed to have telephone conversations with his relatives, including his father.
B. Relevant domestic law and practice
12. A description of the relevant domestic law and practice can be found in A.Ş. v.Turkey (no. 58271/10, § 34-35, 13 September 2016); ŞefikDemir v. Turkey ((dec.), no. 51770/07, §§ 29-33, 16 October 2012); and Turgut and Others v.Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).
13. Section86§ 8 of Law no. 5275 on the enforcement of sentences and preventive measures state that if someone does not comply with the rules during prison visits, the visit shall immediately be terminated. In such a case, where necessary, the prison authorities may restrict the visiting rights of this person for a period of one month to one year.
14. The applicant complained under Article5§ 3 of the Convention about length of his detention on remand.
15. The applicant complained that the length of the criminal proceedings had been incompatible with the “reasonable time” requirement laid down in Article6 § 1 of the Convention.
16. The applicant complained that the disciplinary sanction imposed on his father amounted to a breach of Article 8 of the Convention. He further complained under Article 13 of the Convention that domestic law did not provide an effective remedy for the complaint in question.
A. Article 5 § 3 of the Convention
17. The applicant complained under Article5§3 of the Convention about length of his detention on remand.
18. The Government asked the Court to reject this complaint due to non‑exhaustion of domestic remedies. In this respect, they submitted that the applicant should request compensation pursuant to Article141 of the Code on Criminal Procedure (“CCP”).
19. The Court observes that the domestic remedy in application of Article141 §1 (d) of the CCP with regard to length of detention on remand was examined in the cases of A.Ş. v. Turkey (no. 58271/10, § 85‑95, 13 September 2016) and Şefik Demir v.Turkey, ((dec.), no. 51770/07, §§ 17-35, 16October 2012).
20. In the case of Şefik Demir (cited above) the Court held that that remedy had to be exhausted by the applicants whose convictions became final. It further ruled in its judgment of A.Ş. (cited above, § 92) that as of June 2015 the domestic remedy provided for in Article141 §1 (d) of the CCP had to be exhausted by the applicants even before the proceedings became final.
21. In the instant case, the Court notes that the applicant’s detention ended on 22April 2009 with his release from detention on remand, yet there is no information whether the proceedings against him are still pending or have become final. However, the Court observes that the applicant was entitled, in both situations, to seek compensation under Article141 § 1(d) of the CCP. However, he failed to do so.
22. The Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see İçyer v. Turkey (dec.), no. 18888/02, § 72, ECHR 2006 I). The Court has previously departed from this rule in cases concerning the above-mentioned remedy in respect of the length of detention, which became applicable after the final decision on the criminal proceedings (see also, among others, Tutal and Others v.Turkey (dec.), no. 11929/12, 28 January 2014). The Court takes the view that the exception should be applied in the present case as well.
23. As a result, taking into account the Government’s objection, the Court concludes that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. Article 6 of the Convention
24. The applicant complained that the length of the criminal proceedings had been incompatible with the “reasonable time” requirement laid down in Article6 § 1 of the Convention.
25. The Government noted that pursuant to Law no. 6384 a new Compensation Commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They maintained that this part of the application should be declared inadmissible for non-exhaustion of domestic remedies as the applicant should apply to the Compensation Commission.
26. The Court observes that, a new domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v.Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013), the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
27. The Court notes that in its judgment in the case of ÜmmühanKaplan (cited above, § 77) it stressed that it could nevertheless examine, under its normal procedure, applications of this type which had already been communicated to the Government.
28. However, taking account of the Government’s preliminary objection with regard to the applicant’s failure to make use of the domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others (cited above).
29. It therefore concludes that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
C. Article 8 of the Convention
30. The applicant complained that he was a minor at the time and that the disciplinary penalty imposed on his father, restricting his rights to visit him in prison for a period of one year, constituted a breach of Article 8 of the Convention. He further complained under Article 13 of the Convention that the domestic law did not provide an effective remedy for the complaint in question.
31. The Government contested that argument. In particular, they stated that the applicant’s father had been banned from visiting his son in prison as he had posed a threat to security and maintained that the interference was necessary. The Government further stated that the restriction had a legal basis, namely Section 86 § 8 of Law no. 5275 and was proportionate to the aim pursued. They informed the Court that the applicant had continued to have weekly visits from other family members and was able to have telephone conversations with his father. They further stated that there existed an effective remedy against this disciplinary action. In this connection, they pointed out that the applicant had been able to file objections with the Enforcement Judge and the Assize Court regarding the ban. The mere fact that the proceedings did not end in the applicant’s favour, could not be interpreted as lack of effective remedies.
32. The Court reiterates that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 69, ECHR 2005‑IX). For example, they continue to enjoy the right to respect for family life (see Messina v.Italy (no. 2), no. 25498/94, § 61, ECHR 2000‑X; Ploski v. Poland, no. 26761/95, judgment of 12 November 2002; X. v. the United Kingdom, no. 9054/80, Commission decision of 8 October 1982, Decisions and Reports (DR) 30, p. 113) and the right to respect for correspondence (see Silver and Others v.the United Kingdom, judgment of 25 March 1983, Series A no. 61). Any restrictions on these rights have to be justified, although such justification may well be found in the considerations of security, in particular the prevention of crime and disorder, which inevitably flow from the circumstances of imprisonment.
33. The Court further recalls that when assessing the obligations imposed on Contracting States by Article 8 in relation to prison visits, regard must be had to the ordinary and reasonable requirements of imprisonment and to the resultant degree of discretion which the national authorities must be allowed in regulating a prisoner’s contact with his family (see Dikme v.Turkey,no.20869/92,§ 117, ECHR 2000‑VIII; the Boyle and Rice v.the United Kingdom, judgment of 27April 1988, Series A no. 131, p. 29, §74; see also the Silver and Others v. the United Kingdom judgment of 25March 1983, Series A no. 61, p. 38, § 98; and, mutatis mutandis, the Golder v. the United Kingdom judgment of 21 February 1975, Series A no. 18, pp. 21‑22, § 45, and the Schönenberger and Durmaz v.Switzerland judgment of 20 June 1988, Series A no. 137, p. 13, § 25).
34. To assess whether the interference complained of was “in accordance with the law”, the Court must inevitably assess the relevant domestic legislation in force at the time in relation to the requirements of the fundamental principle of the rule of law. The expression “in accordance with the law” refers to the quality of the legislation in question. Domestic law must afford a measure of protection against arbitrary interference by public authorities with Convention rights, in respect of which the rule of law would not allow unfettered powers to be conferred on the Executive. Consequently, the law must indicate with sufficient clarity the scope of any executive discretion and the manner of its exercise The law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are entitled to resort to the impugned measures (see Gülmez v. Turkey, no. 16330/02, § 49, 20May 2008).
35. In the present case, the Court observes that by banning the visiting rights of the applicant’s father for one year, the authorities interfered with the private and family life of the applicant, who was a minor at the time. The banning of the visiting rights was ordered on 3 December 2008 by the Diyarbakır Prison Disciplinary Board and subsequently endorsed by the Enforcement Judge and the Diyarbakır Assize Court on the basis of Section 86 § 8 of Law no. 5275. As a result, the interference in the present case was in accordance with the law. Furthermore, as indicated in the decision of the Disciplinary Board, during the visit of 2 December 2008, the applicant’s father had provoked the detainees and the visitors by doing a victory sign of a terrorist organisation. The prison authorities, in the exercise of their discretionary powers, deemed it necessary to restrict the visiting rights of the applicant’s father in order to maintain order. Consequently, the Court notes that the interference of the authorities pursued a legitimate aim.
36. As to whether the interference in question was necessary in a democratic society, the Court observes that until his release on 22 April 2009, namely for approximately three months, the applicant was not able to have visits from his father. Considering that the applicant was a minor at the time, the banning of the visiting rights of the applicant’s father was no doubt a strict preventive measure. However, the restriction was not a total ban on the applicant’s visiting rights and he continued to have weekly visits from his mother and sister during his detention. He was also allowed to have regular telephone conversations with his father. Moreover, the Court cannot overlook the fact that the applicant was accused of making propaganda of the PKK and of committing crimes in the name of the terrorist organisation, and the disciplinary sanction in question was imposed on the applicant’s father for provoking the detainees and the visitors by doing a victory sign of the terrorist organisation during his visit.
37. In view of the foregoing, the Court notes that the respondent State cannot be considered as overstepping its margin of appreciation in the matter.
38. The Court concludes that this part of the complaint is manifestly ill‑founded and must be rejected, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
39. As regards the remaining complaint raised under Article13 of the Convention, the Court considers that as the case file reveals no breach of Article 8 of the Convention, the applicant’s claim under this head should be rejected for being incompatible ratione materiae with the terms of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 14 February 2019.
Hasan Bakırcı Julia Laffranque
Deputy Registrar President