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URL: http://www.bailii.org/eu/cases/ECHR/2010/1883.html
Cite as: [2010] ECHR 1883

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SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Applications nos. 9097/05, 9491/05, 9498/05, 9500/05,
9505/05 and 9509/05
by Gültekin AYDEMİR and Others
against Turkey

The European Court of Human Rights (Second Section), sitting on 9 November as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş,
Kristina Pardalos, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

Having regard to the above applications,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

A. The circumstances of the case

The applicants are Turkish nationals and at the time of lodging their applications they were serving prison sentences in various establishments. The names and dates of birth of the applicants, as well as the names of their representatives, and the dates of introduction of the applications appear in the appendix.

By a decision of the Izmir F-type Prison Disciplinary Board, dated 29 December 2004, the applicants were found guilty of breaching prison order by pressing emergency buttons in the cells and by refusing to participate in prison workshops.

Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, the applicants were all prohibited from corresponding for fifteen days. Their appeal requests were rejected by the Enforcement Judge and subsequently by the Assize Court on 11 and 26 January 2005 respectively, on the basis of the case file, without hearing the applicants or their lawyers, pursuant to Law no. 4675 on Enforcement Judges, of 16 May 2001.

B. Relevant domestic law and practice

1. Law no. 4675 on Enforcement Judges (dated 16 May 2001)

Section 4 of Law no. 4675, which lays down the competences of Enforcement Judges, provides that objections filed against disciplinary sanctions shall be dealt with by such a judge. Section 5 provides that the prisoner concerned, or his or her close relative or legal representative, can file an objection against a disciplinary sanction. Furthermore, Section 6 stipulates that the Enforcement Judge shall decide on the basis of the case file, without holding a hearing. That judge may conduct an examination ex officio or request further information from the parties if the interests of justice so require. An appeal against the decisions of Enforcement Judges lies to the nearest Assize Court.

2. Law no. 6008 (dated 22 July 2010 and published in the Official Gazette on 25 July 2010), amending Section 6 of the Law on Enforcement Judges

According to this recent law (Section 5), upon objection against a disciplinary sanction, the Enforcement Judge delivers his/her decision after hearing the defence submissions of the prisoner concerned and collecting all the evidence. The prisoner can present his/her defence submissions in person and/or in the presence of his/her lawyer or only through a lawyer.

The law further provides a remedy for all those prisoners who had previously filed objections with the Enforcement Judges concerning disciplinary sanctions imposed on them before the adoption of this law (Provisional Article 1). Accordingly, those who had previously filed objections with Enforcement Judges against a prison disciplinary sanction now have the possibility of filing a fresh objection with the Enforcement Judge within six months following the adoption of this law, and their cases will be dealt with in accordance with the new procedures.

3. Practice

In their additional observations, the Government provided two sample decisions delivered by the Ankara Enforcement Judge following the adoption of Law No. 6008. In these two cases (nos. E2010/777 K/2010/817 and E2010/935 K 2010/916), dated 24 August 2010 and 24 September 2010 respectively, the Ankara Enforcement Judge re-examined the objections filed by prisoners who had previously received disciplinary sanctions. In both cases, the Enforcement Judge heard the prisoners in person and re-examined the evidence in the case files. At the end of the proceedings, the Enforcement Judge annulled the disciplinary sanctions in dispute, clearing these prisoners from all of the consequences of the offence.

COMPLAINT

The applicants complained under Article 6 of the Convention about the fairness of the prison disciplinary proceedings, alleging that their objections were examined on the basis of the case files, and that they were deprived of their right to submit their defence submissions in person or through a lawyer.

THE LAW

Given the similarity of the applications, as regards both fact and law, the Court deems it appropriate to join them.

Invoking Article 6 of the Convention, the applicants argued that they did not have a fair trial during the disciplinary proceedings in question as the domestic courts delivered their decision on the basis of the case file and they were deprived of their right to defend themselves in person or through a lawyer.

In view of the recent amendments in domestic law, the Government asked the Court to declare the applications inadmissible for non-exhaustion of domestic remedies.

In applications nos. 9500/05 and 9505/05, the applicants stated that the new remedy referred to by the Government was not effective and could not be considered adequate for the purposes of Article 35 § 1 of the Convention. In their view, Law no. 6008 of 22 July 2010 was adopted solely to prevent the Court to rule for violations in cases concerning prison disciplinary sanctions. In sum, the applicants invited the Court to reject the Governments’ plea of inadmissibility on the ground of non-exhaustion of domestic remedies.

The Court reiterates that the purpose of the exhaustion rule, contained in Article 35 § 1 of the Convention, is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court. Accordingly, this rule requires applicants first to use the remedies provided by the national legal system, thus dispensing States from answering before the European Court for their acts. Yet, the rule is based on the assumption that the domestic system provides an effective remedy in respect of the alleged breach (İçyer v. Turkey (dec.), no. 18888/02, 12 January 2006; Latak v. Poland (dec.), no. 52070/08, § 75, 12 October 2010).

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 Baumann v. France, no. 33592/96, § 47, 22 May 2001, and İçyer, cited above). In particular, the Court has previously departed from this general rule in cases against Italy, Croatia, Slovakia and Poland concerning remedies in respect of the excessive length of proceedings (see, Brusco v. Italy (dec.), no. 69789/01, ECHR 2001 IX; Nogolica v. Croatia (dec.), no. 77784/01, ECHR 2002 VIII; Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60226/00, 60237/00, 60242/00, 60679/00, 60680/00 and 68563/01, ECHR 2002 IX; Charzyński v. Poland, no. 15212/03, and Tadeusz Michalak v. Poland, no. 24549/03, decisions of 1 March 2005). The Court takes the view that the exception should be applied in the present case.

The Court recalls that in its Gülmez v. Turkey judgment (no. 16330/02, §§ 32-39, 20 May 2008), it examined the legal problem at issue and ruled that there had been a violation of Article 6 § 1 of the Convention in respect of the fairness of prison disciplinary proceedings. In the same judgment, the Court, under Article 46 of the Convention, requested the Government to amend its legislation to ensure the effective protection of the right to a fair hearing in accordance with the guarantees set forth in Article 6 of the Convention (Gülmez, cited above, §§ 60-63).

The Court must now confine its examination to the new remedy introduced by Law no. 6008 of 22 July 2010 and must determine whether the Government’s objection that the applicants have failed to exhaust this particular domestic remedy is well-founded.

The Court observes that following the adoption of Law no. 6008, Section 6 of the Law on Enforcement Judges was amended so as to allow prisoners charged with disciplinary offences to defend themselves in person or through legal assistance. It further notes that the new law also provides a remedy for all those prisoners who had previously been charged with disciplinary offences to file a fresh objection with the Enforcement Judge concerning their previous sentences within six months following the adoption of this law. Such requests would be examined by the Enforcement Judge in the light of the new procedure.

The Court further reiterates that the existence of the domestic remedy in question must be sufficiently certain not only in theory but in practice, failing which it will lack the requisite accessibility and effectiveness. In the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and practice at the relevant time, that is to say, that it was accessible, was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden has been satisfied it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (Latak, cited above, § 76).

As explained in the Government’s observations, the Enforcement Judges have already started examining such objections, by hearing in person those prisoners who file such requests. It is also clear from the sample decisions, referred to above, that during these new proceedings the judges re-evaluated the evidence in the case file. In both cases, the Enforcement Judges decided to annul the disciplinary sanctions in dispute, clearing the prisoners of all consequences of the offence.

Having regard to the foregoing, the Court welcomes the steps taken by the Government in an effort to bring its legislation into line with Article 6 of the Convention with regard to prison disciplinary proceedings. Based on the sample decisions submitted by the Government, the Court is convinced that the new remedy provided in Law no. 6008 is effective and that the applicants have now a possibility under domestic law to file a fresh objection. It therefore concludes that in the instant cases, the applicants should make use of this remedy in order to seek redress for their Convention complaints.

In the light of the above, the Court holds that the present applications must be declared inadmissible for non-exhaustion of domestic remedies pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Declares the applications inadmissible.

Françoise Elens-Passos Françoise Tulkens Deputy Registrar President

APPENDIX

Application no. and name of Applicant	Introduction date of the application	Date of birth	Present Address	Name of Representative
9097/05 Gültekin Aydemir	24 February 2005	1973	Bolu F-type Prison	-
9491/05 Ilhan Çomak	16 February 2005	1973	Ümraniye E-type Prison	-
9498/05 Atilla Aydın	23 February 2005	1978	Izmir Buca F-type Prison	-
9500/05 Barış Akay	18 February 2005	1977	Bolu F-type Prison	-
9505/05 Mehmet Emin Elüstü	21 February 2005	1972	Izmir Buca F-type Prison	Mr Mustafa Rollas, Izmir
9509/05 Ali Çimen	21 May 2005	1969	Izmir Urla Prison	-