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SECOND SECTION
CASE OF BABAYİĞİT v. TURKEY
(Application no. 42728/08)
JUDGMENT
STRASBOURG
4 September 2018
This judgment is final but it may be subject to editorial revision.
In the case of Babayiğit v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
LediBianku, President,
Nebojša Vučinić,
Jon Fridrik Kjølbro, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having deliberated in private on 3 July 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 42728/08) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr EnginBabayiğit (“the applicant”), on 13 August 2008.
2. The applicant was represented by Mr M. Erbil a lawyer practising in Istanbul. The Turkish Government (“the Government”) were represented by their Agent.
3. On 21 November 2008 the application was communicated to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1983 and at the time of lodging his application he was serving his prison sentence in Bolu F-type prison.
5. On 10December 2007 the applicant wrote a letter to a member of parliament, in which he had praised the imprisoned leader of the PKK, Abdullah Öcalan by using“KürtHalkÖnderi”, meaning the leader of Kurdish people.
6. Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, the applicant was found guilty of breaching prison order by the KocaeliF- type Prison Disciplinary Board (referred hereafter as “the Board”) and on 24December 2007 the applicant was sentenced to 13 days’ solitary confinement, on account of his statements in the above mentioned letter.
7. On 17January 2008 the Kocaeli Enforcement Judge rejected the applicant’s objection.
8. On 14February 2008 the Kocaeli Assize Court upheld the judgment of 17 January 2008.
II. RELEVANT DOMESTIC LAW
9. A description of the relevant domestic law may be found in Aydemir and others v. Turkey ((dec.), nos. 9097/05, 9491/05, 9498/05, 9500/05, 9505/05 and 9509/05, 9 November 2010); Yalçınkaya and Others v. Turkey (nos. 25764/09 and 18 others, §§ 12-13, 1 October 2013, andÇetin v. Turkey ((dec.), no. 47768/09, §§ 7-15, 14 June 2016).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
10. The applicant complained that the disciplinary punishment imposed on him for using “KürtHalkÖnderi” (the leader of Kurdish people) when referring to the imprisoned leader of the PKK in his letter, had constituted an unjustified interference with his right to freedom of expression under Article 10 of the Convention. The applicant, based on the same facts, also invoked Article 9 of the Convention. The Court will examine these complaints solely under Article 10 of the Convention.
11. The Government contested that argument.
12. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
13. The applicant complained that the disciplinary sanction imposed on him, which was based on the Regulations on the administration of penitentiary institutions and the execution of sentences, had infringed his rights under the Convention.
14. The Court has already examined a similar complaint in the case of Yalçınkaya and Others v. Turkey (nos. 25764/09 and 18 others, §§ 26‑38, 1 October 2013) and found a violation of Article 10 of the Convention.It has also examined the present case and finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgment.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
15. The applicant further complained under Article 6 of the Convention that while assessing the disciplinary proceedings, the domestic courts had delivered their decisions on the basis of the case files without holding hearings. He maintained that he had been deprived of his right to defend himself in person or through the assistance of a lawyer. The applicant, based on the same facts, also invoked Article 13 of the Convention. The Court will examine these complaints solely under Article 6 of the Convention.
16. Referring to the amendment in domestic law, the Government asked the Court to reject this part of the application for non-exhaustion of domestic remedies.
17. The Court notes that section 6 of the Law on Enforcement Judges was amended by Law no. 6008, so as to allow prisoners charged with disciplinary offences to defend themselves in person or through legal assistance. It further observes that the new law also provides a remedy for all prisoners previously charged with disciplinary offences: they had six months from the date of enactment of that law to lodge a fresh objection with the enforcement judge concerning their previous sentence. Such an objection would be examined by the enforcement judge in the light of the new procedure.
18. The Court has already examined that remedy and found it effective in respect of applications concerning prison disciplinary sanctions. In particular, it considered that the new remedy was accessible and provided reasonable prospects of success. In assessing the effectiveness of the new remedy, the Court had regard to sample decisions submitted by the Government, which indicated that following the lodging of objections, enforcement judges had re-evaluated the evidence in the case file and annulled the disciplinary sanctions in dispute, clearing the respective prisoners of all consequences of the offence (see Aydemir and others nos. 9097/05, 9491/05, 9498/05, 9500/05, 9505/05 and9509/05, 9 November 2010; Aksoyv.Turkey (dec.), no. 8498/05 and 158 others, 11 January 2011; Arslan v. Turkey (dec.), no. 9486/05, 25 January 2011; Güler v. Turkey (dec.), no. 14377/05, 25 January 2011; and Çetin v. Turkey (dec.), no. 47768/09, 14 June 2016).
19. Considering that there are no exceptional circumstances capable of exempting the applicant from the obligation to exhaust domestic remedies, the Court concludes that he should have availed himself of the new remedy offered by Law no. 6008 of 25 July 2010.
20. This part of the application must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
21. By sentencing him to thirteen days’ solitary confinement due to his remarks in a letter, the applicant further complained that his right under Article 8 of the Convention was breached.
22. The Government argued that the application should be rejected for non-exhaustion of domestic remedies as the applicant should apply to the Compensation Commission set up by Law no. 6384.
23. The Court observes that following the pilot judgment procedure applied in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012), on 9 January 2013 the Turkish National Assembly enacted Law no. 6384 on the resolution, by means of compensation, of applications lodged with the Court concerning length of judicial proceedings and non‑enforcement or delayed enforcement of judicial decisions. The competence of the Compensation Commission was subsequently extended by two decrees adopted on 16 March 2014 and 9 March 2016 respectively. The Court notes in this connection that the Compensation Commission has now the competence to examine complaints concerning an alleged breach of an applicant’s right to private and family life on account of the respective disciplinary sanctions imposed on detainees and convicted persons by the prison authorities.
24. The Court also notes that in the case of Çetin, cited above, it examined a similar complaint and declared the application inadmissible for non‑exhaustion of domestic remedies.
25. In the light of the above considerations, the Court concluded that the applicant should seek redress for his complaint by applying to the Compensation Commission.
26. It follows that this part of the application should be rejected for non‑exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
27. Lastly, the applicant complained under Article 6 of the Convention that the Board had not been independent and impartial and the proceedings had not been fair.
28. In the light of all the material in its possession and in so far as the matters complained of are within its competence, the Court concludes that this complaint does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects it as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
A. Damage
29. The applicant claimed 7,000 euros (EUR) in respect of non‑pecuniary damage.
30. The Court accepts that the applicant suffered non-pecuniary damage which is not sufficiently compensated for by the finding of a violation. Making its assessment on an equitable basis and having regard to the circumstances of the case, the Court awards the applicant EUR 2,500 under this head (see Yalçınkaya and Others, cited above, § 53).
B. Costs and expenses
31. The applicant further claimed EUR 4,650 in respect of costs and expenses incurred before the Court. In that connection, the applicant submitted a time-sheet and a cost-sheet drafted by his representative. He also referred to the Turkish Bar Association’s tariff of fees for attorneys.
32. The Government contested the amounts claimed by the applicant. They therefore invited the Court to dismiss the applicants’ claims.
33. The Court reiterates that according to its case-law applicants is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 300 in respect of legal fees incurred in the proceedings before the domestic courts.
C. Default interest
34. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaintunderArticle 10 of the Convention admissible and the remainder of the application inadmissible;
2. Holdsthat there has been a violation of Article 10 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three monthsthe following amounts,to be converted into the currency of the respondent Stateat the rate applicable at the date of settlement:
(i) EUR 2,500 (two thousand and five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 300 (three hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismissesthe remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 4 September 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı LediBianku
Deputy Registrar President
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