{"id":9442,"date":"2019-11-05T11:24:22","date_gmt":"2019-11-05T11:24:22","guid":{"rendered":"https:\/\/laweuro.com\/?p=9442"},"modified":"2019-11-05T11:24:22","modified_gmt":"2019-11-05T11:24:22","slug":"case-of-aydin-and-others-v-turkey-european-court-of-human-rights","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=9442","title":{"rendered":"CASE OF AYDIN AND OTHERS v. TURKEY (European Court of Human Rights)"},"content":{"rendered":"<p style=\"text-align: center;\">SECOND SECTION<br \/>\nCASE OF AYDIN AND OTHERS v. TURKEY<br \/>\n(Applications nos. 43641\/05, 41892\/06 and 41893\/06)<\/p>\n<p style=\"text-align: center;\">JUDGMENT<br \/>\nSTRASBOURG<br \/>\n16 January 2018<\/p>\n<p>This judgment is final but it may be subject to editorial revision.<\/p>\n<p><strong>In the case of Ayd\u0131n and others v. Turkey,<\/strong><\/p>\n<p>The European Court of Human Rights (Second Section), sitting as a Committee composed of:<\/p>\n<p>Ledi Bianku, President,<br \/>\nValeriu Gri\u0163co,<br \/>\nSt\u00e9phanie Mourou-Vikstr\u00f6m, judges,<br \/>\nand Hasan Bak\u0131rc\u0131, Deputy Section Registrar,<\/p>\n<p>Having deliberated in private on 19 December 2017,<\/p>\n<p>Delivers the following judgment, which was adopted on that date:<\/p>\n<p><strong>PROCEDURE<\/strong><\/p>\n<p>1.\u00a0\u00a0The case originated in 3 applications (nos.\u00a043641\/05, 41892\/06 and 41893\/06) 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 three Turkish nationals,Mr\u00a0YasinAyd\u0131n, Mr AhmetGerezand MrNusret Kaya (\u201cthe applicants\u201d), on 14 November 2005, 11 September 2006 and 11 September 2006 respectively.<\/p>\n<p>2.\u00a0\u00a0The Turkish Government (\u201cthe Government\u201d) were represented by their Agent.<\/p>\n<p>3.\u00a0\u00a0On 20 October 2008the applications were communicated to the Government.<\/p>\n<p><strong>THE FACTS<\/strong><\/p>\n<p>I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n<p>4.\u00a0\u00a0The applicants were born in 1967, 1965 and 1972 respectively and at the time of lodging their applications they were serving their prison sentences in the Mu\u015f E-type prison.<\/p>\n<p>5.\u00a0\u00a0On 6 and 7 March 2006 each applicant sent a letter to the Ministry of Justice, referring to the imprisoned leader of the PKK, Abdullah \u00d6calan, by using the honorific \u201csay\u0131n\u201d, meaning esteemed.<\/p>\n<p>6.\u00a0\u00a0Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, the applicants were found guilty of breaching prison order by the Erzurum H- type Prison Disciplinary Board (referred hereafter as \u201cthe Board\u201d).<\/p>\n<p>7.\u00a0\u00a0On 5 April 2006 the applicants were each sentenced to 12 days\u2019 solitary confinement on the orders of the Board, on account of the statements in the above mentioned letters.<\/p>\n<p>8.\u00a0\u00a0On 17 April 2006 the Erzurum Enforcement Judge rejected the applicants\u2019 objections.<\/p>\n<p>9.\u00a0\u00a0On 30 June 2006 the Erzurum Assize Court upheld the judgment of 17\u00a0April 2006.<\/p>\n<p>10.\u00a0\u00a0Furthermore, on 4 July 2005 a disciplinary sanction was imposed on the first applicant, as he avoided visits and telephone calls to protest against the detention conditions of \u00d6calan. He was accordingly banned from receiving visitors for 2 months. On 21 October 2005 and 14 November 2005, respectively, the Erzurum Enforcement Court and the Erzurum Assize Court rejected the first applicant\u2019s appeal requests.<\/p>\n<p>II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n<p>11.\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 and9509\/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); andG\u00fcng\u00f6r v. Turkey ((dec.), no.\u00a014486\/09, \u00a7\u00a7 12\u201316, 4\u00a0July 2017).<\/p>\n<p><strong>THE LAW<\/strong><\/p>\n<p>I.\u00a0\u00a0JOINDER<\/p>\n<p>12.\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<p>II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION<\/p>\n<p>13.\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.<\/p>\n<p>14.\u00a0\u00a0The Government contested that argument.<\/p>\n<p>15.\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<p>16.\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<p>17.\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<p>18.\u00a0\u00a0In view of the foregoing, the Court holds that there has been a violation of Article 10 of the Convention.<\/p>\n<p>III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION<\/p>\n<p>19.\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.<\/p>\n<p>20.\u00a0\u00a0The Government contested that argument.<\/p>\n<p>21.\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<p>22.\u00a0\u00a0In the present applications, the solitary confinement sanction in question was also twelve 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<p>23.\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<p>IV.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n<p>24.\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.<\/p>\n<p>25.\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<p>26.\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 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<p>27.\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 v.\u00a0Turkey (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, 25\u00a0January 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<p>28.\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<p>29.\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<p>IV.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n<p>30.\u00a0\u00a0Without making any specific claims, in a letter submitted to the Court, the applicants merely stated that they should be awarded compensation.<\/p>\n<p>31.\u00a0\u00a0The Court notes that in accordance with Rule 60 of the Rules of Court an applicant who wishes to obtain an award of just satisfaction must make a specific claim to that effect and submit details of all claims, together with any relevant supporting documents, within the fixed time-limits. The Court observes that in the present case the applicants did not specify their claims under the head of non-pecuniary damage.<\/p>\n<p>32.\u00a0\u00a0Therefore, the Court considers that there is no call to award them any sum on that account.<\/p>\n<p><strong>FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n<p>1.\u00a0\u00a0Decides to join the applications;<\/p>\n<p>2.\u00a0\u00a0Declares the complaints concerning Article 10 of the Convention admissible and the remainder of the applications inadmissible;<\/p>\n<p>3.\u00a0\u00a0Holds that there has been a violation of Article 10 of the Convention;<\/p>\n<p>4.\u00a0\u00a0Dismisses the applicants\u2019 claim for just satisfaction.<\/p>\n<p>Done in English, and notified in writing on 16 January 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n<p>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\u00a0 LediBianku<br \/>\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<div class=\"social-share-buttons\"><a href=\"https:\/\/www.facebook.com\/sharer\/sharer.php?u=https:\/\/laweuro.com\/?p=9442\" target=\"_blank\" rel=\"noopener\">Facebook<\/a><a href=\"https:\/\/twitter.com\/intent\/tweet?url=https:\/\/laweuro.com\/?p=9442&text=CASE+OF+AYDIN+AND+OTHERS+v.+TURKEY+%28European+Court+of+Human+Rights%29\" target=\"_blank\" rel=\"noopener\">Twitter<\/a><a href=\"https:\/\/www.linkedin.com\/shareArticle?url=https:\/\/laweuro.com\/?p=9442&title=CASE+OF+AYDIN+AND+OTHERS+v.+TURKEY+%28European+Court+of+Human+Rights%29\" target=\"_blank\" rel=\"noopener\">LinkedIn<\/a><a href=\"https:\/\/pinterest.com\/pin\/create\/button\/?url=https:\/\/laweuro.com\/?p=9442&description=CASE+OF+AYDIN+AND+OTHERS+v.+TURKEY+%28European+Court+of+Human+Rights%29\" target=\"_blank\" rel=\"noopener\">Pinterest<\/a><\/div>","protected":false},"excerpt":{"rendered":"<p>SECOND SECTION CASE OF AYDIN AND OTHERS v. TURKEY (Applications nos. 43641\/05, 41892\/06 and 41893\/06) JUDGMENT STRASBOURG 16 January 2018 This judgment is final but it may be subject to editorial revision. In the case of Ayd\u0131n and others v.&hellip;<\/p>\n<p class=\"more-link-p\"><a class=\"more-link\" href=\"https:\/\/laweuro.com\/?p=9442\">Read more &rarr;<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"class_list":["post-9442","post","type-post","status-publish","format-standard","hentry","category-available-in-english"],"_links":{"self":[{"href":"https:\/\/laweuro.com\/index.php?rest_route=\/wp\/v2\/posts\/9442","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/laweuro.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/laweuro.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/laweuro.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/laweuro.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=9442"}],"version-history":[{"count":1,"href":"https:\/\/laweuro.com\/index.php?rest_route=\/wp\/v2\/posts\/9442\/revisions"}],"predecessor-version":[{"id":9443,"href":"https:\/\/laweuro.com\/index.php?rest_route=\/wp\/v2\/posts\/9442\/revisions\/9443"}],"wp:attachment":[{"href":"https:\/\/laweuro.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=9442"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/laweuro.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=9442"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/laweuro.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=9442"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}