SECOND SECTION
\nCASE OF \u00c7ET\u0130N AND GED\u0130Kv. TURKEY
\n(Applications nos. 29899\/07 and 33333\/08)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n4 September 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the cases of \u00c7etin and Gedik v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Committee composed of:<\/p>\n Ledi Bianku, President, Having deliberated in private on 3 July 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in two applications (nos.29899\/07 and\u00a033333\/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 (\u201cthe Convention\u201d) by two Turkish nationals, Mr\u00a0Fermani\u00a0\u00c7etin, and Mr SoncanGedik (\u201cthe applicants\u201d), on 13 June 2007 and 10 June 2008 respectively.<\/p>\n 2.\u00a0\u00a0The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0On22 August 2007 and 10 October 2008 the applications were communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicants are Turkish nationals and at the time of lodging their applications they were serving their prison sentences in various establishments.<\/p>\n 5.\u00a0\u00a0The names and dates of birth of the applicants, as well as the names of their representatives appear in the appendix.<\/p>\n 6.\u00a0\u00a0The applicants were found guilty of breaching prison order by decisions of the respective disciplinary boards of prisons in which they were held. Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, the applicants were sentenced respectively between 11 to 12 days\u2019 solitary confinement on the orders of the respective Prison Disciplinary Boards (referred hereafter as \u201cthe board\u201d).<\/p>\n 7.\u00a0\u00a0Their objections were subsequently rejected by the Enforcement Judges and the Assize Courts, on the basis of the case file, without hearing the applicants or their lawyers, pursuant to Law no. 4675 on Enforcement Judges, dated 16 May 2001.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 8.\u00a0\u00a0A description of the relevant domestic law may be found in G\u00fclmez v.\u00a0Turkey (no. 16330\/02, \u00a7\u00a7 13-15, 20 May 2008); Aydemir and others v.\u00a0Turkey ((dec.), nos.\u00a09097\/05, 9491\/05, 9498\/05, 9500\/05, 9505\/05 and\u00a09509\/05, 9 November 2010); Yal\u00e7\u0131nkaya and Others v.\u00a0Turkey (nos.\u00a025764\/09 and 18others, \u00a7\u00a7 12-13, 1 October 2013);\u00c7etin v.\u00a0Turkey ((dec.),no. 47768\/09, \u00a7\u00a7\u00a07-15, 14June 2016); and G\u00fcng\u00f6r v. Turkey ((dec.), no.\u00a014486\/09, \u00a7\u00a7 12\u201316, 4 July 2017).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0JOINDER OF THE APPLICATIONS<\/p>\n 9.\u00a0\u00a0Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION<\/p>\n 10.\u00a0\u00a0The applicants complained that the disciplinary punishment imposed on them for using the honorific \u201csay\u0131n\u201d (esteemed) when referring to the imprisoned leader of the PKK in their letters, had constituted an unjustified interference with their right to freedom of expression under Article 10 of the Convention. The applicants, based on the same facts, also invoked Article\u00a09 of the Convention. The Court has examined these complaints solely under Article\u00a010 of the Convention.<\/p>\n 11.\u00a0\u00a0The Government contested that argument.<\/p>\n 12.\u00a0\u00a0The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.<\/p>\n 13.\u00a0\u00a0The applicants complained that the disciplinary sanctions imposed on them, which were based on the Regulations on the administration of penitentiary institutions and the execution of sentences, had infringed their rights under the Convention.<\/p>\n 14.\u00a0\u00a0The Court has already examined a similar complaint in the case of Yal\u00e7\u0131nkaya and Others v. Turkey (nos. 25764\/09 and 18 others, \u00a7\u00a7\u00a026-38, 1\u00a0October 2013) and found a violation of Article 10 of the Convention.It has also examined the present cases and finds no particular circumstances which would require it to depart from its findings in the above-mentioned judgment.<\/p>\n 15.\u00a0\u00a0In view of the foregoing, the Court holds that there has been a violation of Article 10 of the Convention.<\/p>\n III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n 16.\u00a0\u00a0The applicants 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. They maintained that they had been deprived of their right to defend themselves in person or through the assistance of a lawyer. Based on the same facts in application no. 33333\/08, the applicantalso invoked Articles\u00a07 and 14of the Convention.The Court has examined these complaints solely under Article 6 of the Convention.<\/p>\n 17.\u00a0\u00a0Referring to the amendment in domestic law, the Government asked the Court to reject this part of the applications for non-exhaustion of domestic remedies.<\/p>\n 18.\u00a0\u00a0The 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 sixmonths 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.<\/p>\n 19.\u00a0\u00a0The 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(dec.), nos.\u00a09097\/05, 9491\/05, 9498\/05, 9500\/05, 9505\/05 and\u00a09509\/05, 9\u00a0November 2010; Aksoyv.Turkey (dec.), no. 8498\/05 and 158\u00a0others, 11\u00a0January 2011; Arslan v. Turkey (dec.), no. 9486\/05 and 59\u00a0others, 25\u00a0January 2011; G\u00fcler v. Turkey (dec.), no. 14377\/05 and 49\u00a0others, 25\u00a0January 2011; and \u00c7etin v.Turkey (dec.), no. 47768\/09, 14 June 2016).<\/p>\n 20.\u00a0\u00a0Considering that there are no exceptional circumstances capable of exempting the applicants from the obligation to exhaust domestic remedies, the Court concludes that they should have availed themselves of the new remedy offered by Law no. 6008 of 25 July 2010.<\/p>\n 21.\u00a0\u00a0This part of the applications must therefore be rejected under Article\u00a035 \u00a7\u00a7 1 and 4 of the Convention for non-exhaustion of domestic remedies.<\/p>\n IV.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n 22.\u00a0\u00a0Relying on Article 3 of the Convention, the applicants complained that the solitary confinement that had been imposed on them as a disciplinary sanction had constituted an inhuman treatment. The applicant in the application no. 33333\/08, based on the same facts, also invoked Article\u00a05 of the Convention. The Court has examined these complaints solely under Article 3 of the Convention.<\/p>\n 23.\u00a0\u00a0The Government contested that argument.<\/p>\n 24.\u00a0\u00a0The Court recalls that in the case of G\u00fcng\u00f6r v. Turkey ((dec.), no.\u00a014486\/09, \u00a7\u00a7 12 \u201316, 4 July 2017), which raised similar issues to those in the present case, it concluded that the 12 days\u2019 solitary confinement that had been imposed on the applicant as a disciplinary sanction, had not met the minimum threshold of severity required to fall within the scope of Article\u00a03 of the Convention.<\/p>\n 25.\u00a0\u00a0In the present applications, the impugned solitary confinement sanctions werebetween eleven and twelve days. Having examined the cases, the Court sees no reason to depart from its conclusions in the case of G\u00fcng\u00f6r, cited above.<\/p>\n 26.\u00a0\u00a0Accordingly, 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 finds that this part of the applications does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It should therefore be rejected as being manifestly ill-founded, pursuant to Article 35 \u00a7\u00a7 3 (a) and 4 of the Convention.<\/p>\n V.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION IN RESPECT OF APPLICATION NO.\u00a033333\/08<\/p>\n 27.\u00a0\u00a0In application no. 33333\/08, the applicant further complained of the fact that the Board\u2019s decision had violated his right under Article 8 of the Convention.<\/p>\n 28.\u00a0\u00a0The 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\u00a0no.\u00a06384.<\/p>\n 29.\u00a0\u00a0The Court observes that following the pilot judgment procedure applied in the case of \u00dcmm\u00fchan Kaplan v. Turkey (no. 24240\/07, 20\u00a0March 2012), on 9 January 2013 the Turkish National Assembly enacted Law\u00a0no.\u00a06384 on the resolution, by means of compensation, of applications lodged with the Court concerning length of judicial proceedings and non\u2011enforcement 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\u2019s right to private and family life on account of the respective disciplinary sanctions imposed on detainees and convicted persons by the prison authorities.<\/p>\n 30.\u00a0\u00a0The Court also notes that in the case of \u00c7etin, cited above, it examined a similar complaint and declared the application inadmissible for non-exhaustion of domestic remedies.<\/p>\n 31.\u00a0\u00a0In the light of the above considerations, the Court concluded that the applicant should seek redress for his complaint by applying to the Compensation Commission.<\/p>\n 32.\u00a0\u00a0It follows that this part of the application should be rejected for non\u2011exhaustion of domestic remedies pursuant to Article 35 \u00a7\u00a7 1 and 4 of the Convention.<\/p>\n VI.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 33.\u00a0\u00a0The first applicant, Fermani\u00c7etin, claimed 7,000 euros (EUR) and the second applicant, SoncanGedik, claimed EUR 2,000 in respect of non\u2011pecuniary damage.<\/p>\n 34.\u00a0\u00a0The Government contested those claims.<\/p>\n 35.\u00a0\u00a0The Court accepts that the applicantsboth 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 first applicant EUR\u00a03,250 and the second applicant EUR 2,000 under this head (see Yal\u00e7\u0131nkaya and Others, cited above, \u00a7\u00a053).<\/p>\n B.\u00a0\u00a0Default interest<\/strong><\/p>\n 36.\u00a0\u00a0The 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.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Decidesto join the applications;<\/p>\n 2.\u00a0\u00a0Declares the complaint under Article 10 of the Convention admissible and the remainder of the applications inadmissible;<\/p>\n 3.\u00a0\u00a0Holdsthat there has been a violation of Article 10 of the Convention;<\/p>\n 4.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicants, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable:<\/p>\n (i)\u00a0\u00a0in respect of non-pecuniary damage:<\/p>\n –\u00a0\u00a0to the first applicant, Mr\u00a0Fermani\u00c7etin, EUR\u00a03,250 (three thousand two hundred and fifty euros);<\/p>\n –\u00a0\u00a0to the second applicant, Mr Soncan\u00a0Gedik, EUR\u00a02,000 (two thousand euros);<\/p>\n (b)\u00a0\u00a0that 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;<\/p>\n 5.\u00a0\u00a0Dismissesthe remainder of the applicants\u2019 claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 4 September 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Hasan Bak\u0131rc\u0131\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Ledi Bianku <\/p>\n no.<\/strong><\/td>\n date of birth<\/strong><\/p>\n place of residence<\/strong><\/td>\n 01\/03\/1972<\/p>\n Bolu<\/p>\n <\/td>\n (no. 2007\/47)<\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n b)<\/p>\n 09\/04\/2007<\/p>\n (no. 2007\/100)<\/td>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n b)30\/05\/2007<\/td>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n 11 days\u2019 solitary confinement<\/td>\n <\/p>\n b) Going on a hunger strike and praising the imprisoned leader of the PKK in a letter, by using the honorific \u201csay\u0131n\u201d, meaning esteemed<\/td>\n<\/tr>\n \u00a0<\/strong><\/p>\n \u00a0<\/strong><\/p>\n \u00a0<\/strong><\/p>\n \u00a0<\/strong><\/p>\n \u00a0<\/strong><\/p>\n \u00a0<\/strong><\/td>\n <\/p>\n <\/td>\n 14\/08\/1967<\/p>\n Antalya<\/p>\n <\/td>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/td>\n <\/p>\n <\/p>\n <\/p>\n <\/p>\n <\/td>\n <\/p>\n <\/p>\n <\/td>\n
\nNeboj\u0161a Vu\u010dini\u0107,
\nJon Fridrik Kj\u00f8lbro, judges,
\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n\n\n
\n
\n<\/strong>No.<\/strong><\/td>\nApplication<\/strong><\/p>\n Lodged on<\/strong><\/td>\n Applicant\u2019s name<\/strong><\/p>\n Represented by<\/strong><\/td>\n Date of Board\u2019s decision<\/strong><\/td>\n Date of final decision delivered by the Assize Court<\/strong><\/td>\n Type of disciplinary punishment imposed <\/strong><\/td>\n Acts for which disciplinary punishment imposed<\/strong><\/td>\n<\/tr>\n<\/thead>\n\n \n 1. <\/strong><\/td>\n 29899\/07<\/td>\n 13\/06\/2007<\/td>\n Fermani<\/strong>\u00c7ET\u0130N<\/strong><\/p>\n <\/td>\n a)26\/03\/2007<\/p>\n a)22\/05\/2007<\/p>\n 11 days\u2019 solitary confinement<\/p>\n a) Going on a hunger strike and praising the imprisoned leader of the PKK in a letter, by using the honorific \u201csay\u0131n\u201d, meaning esteemed<\/p>\n \n 2.<\/strong><\/p>\n 33333\/08<\/p>\n 10\/06\/2008<\/td>\n Soncan GED<\/strong>\u0130K<\/strong><\/p>\n G\u00f6khan GED\u0130K<\/td>\n 31\/03\/2008<\/p>\n 27\/05\/2008<\/p>\n 12 days\u2019 solitary confinement<\/p>\n Writing petition to the Ministry of Justice in which he praised the imprisoned leader of the PKK, by using the honorific \u201csay\u0131n\u201d, meaning esteemed<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n