SECOND SECTION
\nCASE OF AKSOY v. TURKEY
\n(Application no. 37546\/08)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n30 January 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Aksoy v. Turkey,<\/strong><\/p>\n The European Court of Human Rights (Second Section), sitting as a Committee composed of:<\/p>\n Paul Lemmens, President, Having deliberated in private on 9 January 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 an application (no. 37546\/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 a Turkish national, Mr\u00a0Abdulkahar\u00a0Aksoy (\u201cthe applicant\u201d), on 7 July 2008.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr\u00a0F.\u00a0\u00d6.\u00a0Erol, a lawyer practising in Istanbul. The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n 3.\u00a0\u00a0On 8 July 2009 the application was communicated to the Government.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1963 and at the time of lodging his application he was serving his prison sentence in the Bolu F-type prison.<\/p>\n 5.\u00a0\u00a0On 3 December 2007 the applicant wrote a letter to the Ministry of Justice, in which he had praised the imprisoned leader of the PKK, Abdullah \u00d6calan by using the honorific \u201csay\u0131n\u201d, meaning esteemed.<\/p>\n 6.\u00a0\u00a0Pursuant 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 Bolu F- type Prison Disciplinary Board (referred hereafter as \u201cthe Board\u201d).<\/p>\n 7.\u00a0\u00a0On 12 December 2007 the applicant was sentenced to 11 days\u2019 solitary confinement on the orders of the Board, on account of his statements in the above mentioned letter.<\/p>\n 8.\u00a0\u00a0On 25 December 2007 the Bolu Enforcement Judge rejected the applicant\u2019s objection.<\/p>\n 9.\u00a0\u00a0On 15 January 2008 the Bolu Assize Court upheld the judgment of 25\u00a0December 2007.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 10.\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\u00a0November 2010),Yal\u00e7\u0131nkaya and Others v. Turkey (nos.\u00a025764\/09 and 18\u00a0others, \u00a7\u00a7 12-13, 1 October 2013),\u00c7etin v. Turkey ((dec.),no. 47768\/09, \u00a7\u00a7\u00a07-15, 14\u00a0June 2016)and G\u00fcng\u00f6r v. Turkey ((dec.), no.\u00a014486\/09, \u00a7\u00a7 12-16, 4 July 2017).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION<\/p>\n 11.\u00a0\u00a0The applicant complained that the disciplinary punishment imposed on him for using the honorific \u201csay\u0131n\u201d (esteemed) 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.<\/p>\n 12.\u00a0\u00a0The Government contested that argument.<\/p>\n 13.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n 14.\u00a0\u00a0The 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.<\/p>\n 15.\u00a0\u00a0The Court has already examined a similar complaint in the case of Yal\u00e7\u0131nkaya and Others v. Turkey (nos.\u00a025764\/09 and 18 others, \u00a7\u00a7 26-38, 1\u00a0October 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.<\/p>\n 16.\u00a0\u00a0In view of the foregoing, the Court holds that there has been a violation of Article 10 of the Convention.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n 17.\u00a0\u00a0Relying on Article 3 of the Convention, the applicant complained that the solitary confinement that had been imposed on him as a disciplinary sanction had constituted an inhuman treatment.<\/p>\n 18.\u00a0\u00a0The Government contested that argument.<\/p>\n 19.\u00a0\u00a0The Court recalls that in the case of G\u00fcng\u00f6r v. Turkey ((dec.), no.\u00a014486\/09, \u00a7\u00a7 12 -16, 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 20.\u00a0\u00a0In the present application, the impugned solitary confinement sanction was eleven days. Having examined the case, the Court sees no reason to depart from its conclusions in the case of G\u00fcng\u00f6r, cited above.<\/p>\n 21.\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 application 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 III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n 22.\u00a0\u00a0The 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.<\/p>\n 23.\u00a0\u00a0The applicant, based on the same facts, also invoked Articles\u00a07 and\u00a013 of the Convention. The Court has examined these complaints solely under Article 6 of the Convention.<\/p>\n 24.\u00a0\u00a0Referring to the amendment in domestic law, the Government asked the Court to reject this part of the application for non-exhaustion of domestic remedies.<\/p>\n 25.\u00a0\u00a0The Court notes that section 6 of the Law on Enforcement Judges was amended by \u201cLaw no. 6008 of 25 July 2010\u201d (see \u00a7 27), 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\u00a0months 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 26.\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 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, 25 January 2011; G\u00fcler v. Turkey (dec.), no. 14377\/05, 25 January 2011; and \u00c7etin v.\u00a0Turkey (dec.), no. 47768\/09, 14 June 2016).<\/p>\n 27.\u00a0\u00a0Considering 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.<\/p>\n 28.\u00a0\u00a0This part of the application 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\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 29.\u00a0\u00a0The applicant claimed 10,000 euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n 30.\u00a0\u00a0The 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\u00a02,500 under this head (see Yal\u00e7\u0131nkaya and Others, cited above, \u00a7 53).<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 31.\u00a0\u00a0The applicant also claimed EUR 2,000 in respect of lawyer\u2019s fees and EUR 1,000 for other costs and expenses incurred before the Court, such as stationery, photocopying and translations. In that connection, he submitted a cost-sheet drafted by his representative, and two receipts concerning the lawyer\u2019s fee.<\/p>\n 32.\u00a0\u00a0According to the Court\u2019s case-law, an applicant 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. In the present case, having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant EUR 750 covering costs under all heads.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 33.\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\u00a0Declares the complaint under Article 10 of the Convention admissible and the remainder of the application inadmissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 10 of the Convention;<\/p>\n 3.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that 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:<\/p>\n (i)\u00a0\u00a0\u00a0EUR 2,500 (two thousand and five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n (ii)\u00a0\u00a0EUR 750 (seven hundred and fifty euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/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 4.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 30 January 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 Paul Lemmens
\nValeriu Gri\u0163co,
\nSt\u00e9phanie Mourou-Vikstr\u00f6m, 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