European Court of Human Rights

SECOND SECTION

CASE OF ÇETİN AND GEDİK v. TURKEY

(Applications nos. 29899/07and 33333/08)

JUDGMENT

STRASBOURG

4 September 2018

This judgment is final but it may be subject to editorial revision.

In the cases of Çetin and Gedik v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

Ledi Bianku, 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 two applications (nos. 29899/07and 33333/08) 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 two Turkish nationals, Mr Fermani Çetin, and Mr Soncan Gedik (-�the applicants-�), on 13 June 2007 and 10 June 2008 respectively.

2. The Turkish Government (-�the Government-�) were represented by their Agent.

3. On 22 August 2007 and 10 October 2008 the applications were communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicants are Turkish nationals and at the time of lodging their applications they were serving their prison sentences in various establishments.

5. The names and dates of birth of the applicants, as well as the names of their representatives appear in the appendix.

6. The 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' solitary confinement on the orders of the respective Prison Disciplinary Boards (referred hereafter as -�the board-�).

7. Their 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.

II. RELEVANT DOMESTIC LAW

8. A description of the relevant domestic law may be found in Gülmez v. Turkey (no. 16330/02, §§ 13-15, 20 May 2008); Aydemir and others v. Turkey ((dec.), nos. 9097/05, 9491/05, 9498/05, 9500/05, 9505/05and 9509/05, 9 November 2010); Yalçınkaya and Others v. Turkey (nos. 25764/09and 18 others, §§ 12-13, 1 October 2013); Çetin v. Turkey ((dec.), no. 47768/09, §§ 7-15, 14 June 2016); and Güngör v. Turkey ((dec.), no. 14486/09, §§ 12-�16, 4 July 2017).

THE LAW

I. JOINDER OF THE APPLICATIONS

9. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION

10. The applicants complained that the disciplinary punishment imposed on them for using the honorific -�sayın-� (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 9 of the Convention. The Court has examined these complaints solely under Article 10 of the Convention.

11. The Government contested that argument.

12. The Court notes that the applications are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible.

13. The 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.

14. The Court has already examined a similar complaint in the case of Yalçınkaya and Others v. Turkey (nos. 25764/09and 18 others, §§ 26-38, 1 October 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.

15. In view of the foregoing, the Court holds that there has been a violation of Article 10 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

16. The 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 applicant also invoked Articles 7 and 14 of the Convention. The Court has examined these complaints solely under Article 6 of the Convention.

17. Referring to the amendment in domestic law, the Government asked the Court to reject this part of the applications for non-exhaustion of domestic remedies.

18. 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.

19. 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 (dec.), nos. 9097/05, 9491/05, 9498/05, 9500/05, 9505/05and 9509/05, 9 November 2010; Aksoy v.Turkey (dec.), no. 8498/05and 158 others, 11 January 2011; Arslan v. Turkey (dec.), no. 9486/05and 59 others, 25 January 2011; Güler v. Turkey (dec.), no. 14377/05and 49 others, 25 January 2011; and Çetin v. Turkey (dec.), no. 47768/09, 14 June 2016).

20. Considering 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.

21. This part of the applications must therefore be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

22. Relying 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 5 of the Convention. The Court has examined these complaints solely under Article 3 of the Convention.

23. The Government contested that argument.

24. The Court recalls that in the case of Güngör v. Turkey ((dec.), no. 14486/09, §§ 12 -�16, 4 July 2017), which raised similar issues to those in the present case, it concluded that the 12 days' 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 3 of the Convention.

25. In the present applications, the impugned solitary confinement sanctions were between eleven and twelve days. Having examined the cases, the Court sees no reason to depart from its conclusions in the case of Güngör , cited above.

26. Accordingly, 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 §§ 3 (a) and 4 of the Convention.

V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION IN RESPECT OF APPLICATION NO. 33333/08

27. In application no. 33333/08, the applicant further complained of the fact that the Board's decision had violated his right under Article 8 of the Convention.

28. 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.

29. 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.

30. 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.

31. 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.

32. 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.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

33. The first applicant, Fermani Çetin, claimed 7,000 euros (EUR) and the second applicant, Soncan Gedik, claimed EUR 2,000 in respect of non-�pecuniary damage.

34. The Government contested those claims.

35. The Court accepts that the applicants both 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 3,250 and the second applicant EUR 2,000 under this head (see Yalçınkaya and Others , cited above, § 53).

B. Default interest

36. 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. Decides to join the applications;

2. Declares the complaint under Article 10 of the Convention admissible and the remainder of the applications inadmissible;

3. Holds that there has been a violation of Article 10 of the Convention;

4. Holds

(a) that 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:

(i) in respect of non-pecuniary damage:

- to the first applicant, Mr Fermani Çetin, EUR 3,250 (three thousand two hundred and fifty euros);

- to the second applicant, Mr Soncan Gedik, EUR 2,000 (two thousand euros);

(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;

5. Dismisses the remainder of the applicants' 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 Ledi Bianku
Deputy Registrar President