European Court of Human Rights

 

 

SECOND SECTION

CASE OF SUBAŞI AND OTHERS v. TÜRKİYE

(Applications nos. 3468/20and 18 others)

 

 

 

JUDGMENT
 

Art 8 • Family life • Correspondence • Prisoners denied permission to receive visits from their school-age children and to make telephone calls at weekends • Failure by domestic courts to conduct Convention-compliant proportionality assessment, resulting in insufficient protection against arbitrary interference

 

STRASBOURG

6 December 2022

 

 

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Subaşı and Others v. Türkiye,

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

  Arnfinn Bårdsen , President ,
  Egidijus Kūris,
  Jovan Ilievski,
  Saadet Yüksel,
  Frédéric Krenc,
  Diana Sârcu,
  Davor Derenčinović , judges ,
and Hasan Bakırcı, Section Registrar,

Having regard to:

the applications (nos. 3468/20, 5898/20, 7270/20, 10808/20, 12513/20, 14941/20, 16557/20, 16917/20, 18751/20, 20789/20, 20790/20, 29109/20, 30745/20, 34247/20, 34348/20, 39479/20, 41256/20, 42014/20and 49598/20) against the Republic of Türkiye lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by nineteen Turkish nationals ("the applicants"), on the various dates indicated in the appended table;

the decision to give notice to the Turkish Government ("the Government") of the complaints under Articles 6 and 8 of the Convention and to declare the remainder of the applications inadmissible;

the decision to grant the applicants Barış Yaslan, Mustafa Burgaç, Erhan Akbaba and Ahmet Şanlı leave to represent themselves in the proceedings before the Court (Rule 36 § 2 of the Rules of Court);

the parties' observations;

Having deliberated in private on 15 November 2022,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1.     The applications concern the refusal of the domestic authorities to grant the applicants, who were detained at the time of the events, permission to receive visits from their school-age children during the weekends. Some applications also concern the authorities' decision to prohibit telephone calls during the weekends and the failure to notify the applicants of the public prosecutor's opinion during proceedings concerning those restrictions.

THE FACTS

2.     A list of the applications is set out in Appendix I.

3.     The Government were represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye.

4.     The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.

1. Facts common to all applıcatıons

5.     At the time of the events giving rise to the present applications, the applicants were detained either awaiting trial or appeal or had been convicted of terrorism-related offences in connection with the attempted coup of 15   July 2016. The respective detention facilities where they were held, the distance from their family residence, the overall period of the applicants' detention and the period to be taken into consideration in respect of the prohibition of weekend visits or telephone calls, according to the Government, are indicated in Appendix I.

6.     The Government further submitted the total number of visits the applicants had received during the entire time they were detained and the number of times their children had attended those visits. Those details are provided in Appendix II.

7.     On 14 September 2018 the Directorate General of Prisons of the Ministry of Justice issued an opinion addressed to prisons concerning weekend visits. It noted that, although in its previous opinions it had taken a favourable view of prison administrations making the necessary arrangements to facilitate visits by the school-age children of convicted and remand prisoners, each prison administration board could determine whether to hold the weekly visits on weekdays or at weekends, having regard to the actual prison population and whether there was overcrowding, the frequency of visits from defence lawyers, the number and needs of staff, the criminal profile of the prisoners and the maintenance of order and security in the prison.

8.     On various dates in 2018 the respective prison administrations where some of the applicants were held issued general decisions not to allow visits during weekends. Relying on reasons such as overcrowding in the prison, shortage of staff during the weekends, security concerns and the legal framework providing for visits only during working hours, the administrations decided that they could not accommodate requests to switch the weekday visits to weekend visits. In prisons where no general decision was taken regarding weekend visits, the applicants concerned submitted individual requests for their visiting rights with their families to be exercised at weekends. The respective prison administrations rejected those requests on similar grounds.

9.     Following those decisions, the applicants each brought individual proceedings on various dates before the respective enforcement judges, requesting them to order the prison administration to allow weekend visits. Given the considerable distance between their respective places of detention and their family homes, they argued that it was very difficult for their children, who had a duty to attend school, to visit them during weekdays. They argued that both the right to family reunion and the children's right to education were fundamental human rights and that they should not be forced to choose between them. The applicants also argued that the journey to and from the prison was always long and time-consuming, given the considerable distance between the prison and their homes, and that when the children did come to visit them on weekdays, this always resulted in them being very tired the next day, inevitably affecting their performance at school. Lastly, when the children did come to visit them on weekdays, their absence from school provoked questions from teachers and classmates and their reason for being absent stigmatised them.

10.     Save for the applicant Barış Yaslan, whose objection was allowed (see paragraph 14 below), on various dates the respective enforcement judges dismissed the applicants' requests, finding the decisions of the prison administrations to be in accordance with the law and the security needs of the prisons.

11.     The applicants lodged individual appeals before the Constitutional Court. On various dates, that court dismissed the appeals as inadmissible, referring to its case-law (see paragraphs 41-42 below).

2. addıtıonal facts specıfıc to some applıcants

12.     In addition to the facts described above, additional noteworthy facts relevant to certain individual applicants are listed below.

1. Application no. 5898/20(Barış Yaslan)

13 .     Following the dismissal by the prison administration and trial courts of the applicant's requests for family visits and telephone calls to be allowed at weekends, but before the Constitutional Court examined his individual appeal, the Akhisar prison administration, by a general decision of 7   May 2019, decided that telephone calls would be allowed at weekends.

14 .     Furthermore, while the Constitutional Court's examination of his individual appeal was ongoing, the applicant submitted another request to the prison administration for family visits to take place at weekends. Following the dismissal of his request, the applicant challenged that decision before an enforcement judge. On 2 October 2019 the enforcement judge granted the applicant's request, referring to the case-law of the Court of Cassation (see paragraph 39 below).

15 .     Following those developments, the prison administration decided that as of 10 November 2019 the applicant could have monthly contact visits with his family on Sundays. In the meantime, on 4 November 2019 the Constitutional Court declared the applicant's individual appeal regarding weekend visits and telephone calls inadmissible as manifestly ill-founded, referring to its case-law (see paragraphs 41-42 below).

2. Application no. 7270/20(Seyfettin Açıkgöz)

16.     In a petition of 23 November 2018 addressed to the Manisa enforcement judge, the applicant complained that all of the available means of face-to-face and voice communication were scheduled on weekdays and during working hours, conflicting with the times when his wife was at work and his two children were at school, and therefore resulting in the loss of his family life. He therefore requested that the visits and telephone calls be allowed at weekends, and if this was not possible, that he be allowed the use at least one of those modes of communication at weekends.

17.     The Manisa enforcement judge and subsequently the Manisa Assize Court dismissed the applicant's requests by way of a summary decision, finding that the decision of the prison administration had been lawful.

18.     On 2 August 2019 the Constitutional Court declared the applicant's individual appeal inadmissible as manifestly ill-founded, referring to its findings in the case of Müjdat Gürbüz (see paragraph 40 below).

3. Applications nos. 10808/20, 20790/20and 34247/20(Coşkun Halitoğlu, İsmail Kurt and Kutlay Telli)

19 .     In a general decision of 3 October 2018, the Silivri prison administration, in response to many requests by prisoners to have their visiting time moved to the weekends, noted, inter alia , that out of the 2,509 prisoners who were accommodated in the prison at that time, about 900 of them had school-age children. In order for those prisoners to have weekend visits, the prison administration would have to hold six sessions of one-hour visits spread out across Saturday and Sunday, with each session accommodating fifty prisoners. According to its calculation, such an arrangement would only provide visits for 600 prisoners (falling short of the potential demand) and in any event would necessitate recruiting a workforce of thirty-five extra staff and providing overtime for seventy staff, which was not feasible. Therefore, it decided that the visits would continue to be held on weekdays.

20.     Following separate objections to that decision by the applicants Coşkun Halitoğlu and Kutlay Telli, the Silivri enforcement judge set aside the prison administration's decision on 14 November 2018. Subsequently, the Silivri Assize Court held, in final decisions of 18 December 2018 and 7   January 2019, respectively, on an objection lodged by the public prosecutor, that the prison administration's decision of 3 October 2018 had not contravened the applicants' right to respect for their private and family life, given that the balancing of conflicting interests, namely the right to family reunion and the children's right to education on the one hand and the actual reasons put forward by the prison administration, such as the prison population, staffing, the criminal profiles of the prisoners and prison security on the other hand, had not been unreasonable inasmuch as the possibility of carrying out visits on weekdays had not been restricted.

21.     An objection lodged by the applicant İsmail Kurt to the prison administration's general decision of 3 October 2018 was dismissed by the enforcement judge and the Assize Court for similar reasons.

22 .     The applicant Kutlay Telli was notified of the final decision of the Silivri Assize Court on 7 February 2019. On 8 May 2020 the Constitutional Court declared an individual appeal lodged by the applicant against that decision inadmissible as being out of time. Whereas the applicant argued that he had filled out and given his application form to the prison administration on 6   March 2019, that is to say, within the thirty-day time-limit for lodging an application with the Constitutional Court, the Government submitted that his appeal to the prison administration had been registered on 13 March 2019. The Government relied on the date of the cover letter of the prison administration which had forwarded his appeal form to the public prosecutor, who was entrusted with responsibility for lodging the application.

23.     Individual appeals lodged with the Constitutional Court by the applicants Coşkun Halitoğlu and İsmail Kurt were declared inadmissible as being manifestly ill-founded on the basis of that court's case-law (see paragraph 41 below).

4. Applications nos. 12513/20and 16917/20(Mustafa Burgaç and Mehmet Tuskan)

24.     In the course of the examination by the Osmaniye Assize Court of applicants' requests to have visits from their children during the weekends, the Osmaniye chief public prosecutor's office submitted an opinion briefly noting that the prison administration's general decision not to allow visits during the weekends had been in conformity with law and procedure. That opinion was not forwarded to the applicants for their comments.

5. Application no. 16557/20(Abdülkadir Civan)

25 .     Following the dismissal by the prison administration and trial courts of a request by the applicant, dated 28 September 2018, to have family visits allowed at weekends, but before the Constitutional Court examined his individual appeal, the İzmir prison administration, by a general decision of 1   November 2019, decided that family contact visits could be held on Sundays.

26.     In the meantime, on 5 December 2019, the Constitutional Court declared the applicant's individual appeal regarding weekend visits inadmissible as being manifestly ill-founded, referring to its case-law (see paragraphs 41-42 below).

6. Application no. 49598/20(Serkan Sarıyüz)

27.     It appears that while the applicant was in Bolu Prison, he submitted two separate requests to have visits from his children at weekends. His first request dated 16 October 2017, during the state of emergency, was dismissed by the enforcement judge on the basis of the general decision of the prison administration prohibiting weekend visits. The enforcement judge found that the reasons advanced by the prison administration had been necessary and reasonable, given the increase in the prison population and the fact that the number of staff, who worked on an on-call basis during weekends, was not sufficient to organise visits at weekends in the light of the security arrangements that had to be conformed to during the visits. The enforcement judge's decision was upheld by the Bolu Assize Court on 25   December 2017. The Government submitted that the applicant had not lodged an individual appeal with the Constitutional Court regarding those proceedings.

28.     After the state of emergency was lifted, the applicant submitted a fresh request to the enforcement judge on 18 September 2018 to have visits from his children at weekends. The Bolu enforcement judge dismissed the request on 27   September 2018, referring to the margin of appreciation enjoyed by the prison administration in organising the days and hours of weekly and monthly visits in the light of the prison population, the status of the staff and security concerns. Following the dismissal by the Assize Court of an objection by the applicant to the above-mentioned decision, the applicant lodged an individual appeal with the Constitutional Court, which dismissed the application as manifestly ill-founded on the basis of its case-law (see paragraphs   41-42 below) on 18 December 2019. The Government argued that the applicant had not lodged an application with the Court regarding the second set of proceedings.

29.     On 23 September 2018 the Bolu Prison administration issued a general decision regarding requests to switch weekday visits to weekend visits for those prisoners who had school-age children. On the basis of reasons similar to those given by other prisons, it noted that it could not grant prisoners any weekend visits. The applicant lodged unsuccessful objections against that general decision, first with the Bolu enforcement judge, and then with the Bolu Assize Court. On 29 May 2020 the Constitutional Court dismissed his application as manifestly ill-founded on the basis of its case-law (see paragraphs 41-42 below).

RELEVANT LEGAL FRAMEWORK AND PRACTICE

1. Domestıc law
   1. Relevant provisions of the Constitution

30.     Article 41 of the Constitution, in so far as relevant, provides as follows:

"Family is the foundation of Turkish society.

...

Every child has the right to protection and care and the right to have and maintain a personal and direct relationship with his or her mother and father, unless it is contrary to his or her best interests."

31.     Article 42, in so far as relevant, provides as follows:

"No one shall be deprived of the right of education ...

...

Primary education shall be compulsory for all citizens of both sexes ...

...

Training, education, research and study are the only activities that shall be pursued at institutions of education. These activities shall not be obstructed in any way ..."

2. Law no. 222 on primary education

32.     In accordance with section 52 of Law no. 222, attendance in primary school is compulsory and parents or guardians are under an obligation to ensure that attendance is observed.

3. Law no. 5275 on the enforcement of sentences and preventive measures

33.     The relevant provisions of Law no. 5275, as worded at the time of the events, read as follows:

Section 66

"(1) Convicted prisoners in closed facilities may make telephone calls using paid telephones controlled by the prison administration in accordance with the principles and procedures set out in the regulations ... This right may be restricted in respect of dangerous prisoners and those convicted of organised crime.

..."

Section 83

"(1) A convicted prisoner may be visited by his or her spouse [and] relatives of up to the third degree ... once a week during working hours, for a minimum duration of half an hour and a maximum of one hour.

...

(3) Visits shall be of one of two types, non-contact or contact, with the conditions and duration set out in the regulations issued by the Ministry of Justice."

Section 114

"...

(2) Remand prisoners may have visits in accordance with the general order of the detention institution. At the investigation stage, the public prosecutor - and at the prosecution stage, the judge or the court - may prohibit a remand prisoner from having visitors or may restrict his or her rights in that respect for the proper administration of justice.

(3) Remand prisoners' written communications and telephone conversations may be restricted by a public prosecutor at the investigation stage and by a judge or a court at the prosecution stage."

Section 116

"The provisions of sections ... 66-76 [and] 78-83 ... of this Law may also be applicable to remand prisoners in so far as they are compatible with their status."

4. Regulation no. 28458 on prisoners' right to visits, published in the Official Gazette of 17 June 2005

34.     Under Regulation no. 28458 ("the Regulation on Visits"), remand and convicted prisoners are entitled to have visits once a week from their relatives and other persons, as set out in the Law. The Regulation on Visits provides for one contact visit per month, the day of which is to be determined by the prison administration, and the remaining weekly visits during the month are to be non-contact visits (section 5(d)). Contact visits may be allowed only once every two months by a decision of the prison administration for those charged with or convicted of terrorism-related offences or offences against the security of the State (section 5(e)).

35.     The visiting days and hours and the number of visitors a remand or convicted prisoner may receive at the same time is determined by the prison administration, having regard to the capacity of the institution (sections 10 and 14).

36.     A new provision was added to the Regulation on Visits on 14   September 2021, published in the Official Gazette on the same day, providing prison administrations with the possibility of allowing visits during weekends for those remand and convicted prisoners who have children attending school, taking into account the prison population and its security and staffing capacity (section 5(p)).

5. Regulation no. 26131 on the management of prisons and the execution of sentences and preventive measures, published in the Official Gazette of 6 April 2006

37.     In accordance with Regulation no. 26131, each prison has an administration and observation board ("the prison administration"), which is composed of the prison governor, deputy governor, administration officer, in-house doctor, psychologist, social worker, teacher, enforcement officer and a technician chosen by the prison governor (section 34(1)). The prison administration has the authority to restrict telephone conversations, as well as the use of radio, the Internet and television, by those prisoners who are convicted of terrorism-related offences or those whom it considers dangerous (section 40(1)). The latter provision is also applicable, mutatis mutandis , to remand prisoners.

38.     Section 88 of the Regulation, as in force at the relevant time, set out the rules governing telephone conversations in prisons. Accordingly, the dates and times of telephone calls were determined by the administration, which was to take into account the number of telephones in the institution, the order of the telephone requests and the level of security of the institution. The right to a telephone conversation was limited to once a week for a duration of ten minutes to a single telephone number. Prisoners did not have a right to receive incoming calls.

6. Relevant case-law
   1. Court of Cassation's decision of 1 July 2019 (case no.   E. 2019/1773, K.   2019/3469)

39 .     This case concerned the Bandırma Prison administration's decision to dismiss a request by a convicted prisoner to exercise his right to have visits from his school-age children at weekends. The First Division of the Court of Cassation in Criminal Matters found the decision to be unlawful, noting that the essence of the constitutional right to family reunion had been interfered with by the prison administration, which had used its discretion to determine the days of the visits without giving any concrete reasons. The Court of Cassation noted that the prison administration could not use its discretion in a manner which made it impossible for the applicant to exercise his right to meet with his children, given that they went to school on weekdays.

2. Constitutional Court decisions in the context of individual appeal proceedings

(a)    Inadmissibility decision of 23 May 2018 in the case of Müjdat Gürbüz

40 .     In this case, in which an individual appeal lodged by a detained individual under different Articles of the Convention regarding, inter alia , the prohibition by the prison administration of weekend visits and the alleged violation of the applicant's right to respect for his family life, the Constitutional Court declared the relevant part of the complaint inadmissible, as the applicant did not have any children.

(b)    Inadmissibility decision of 20 September 2018 in the case of Orhan Alagöz

41 .     In this case, an individual appeal lodged by a remand prisoner under Article   8 of the Convention regarding the decision of a prison administration to restrict prisoners' visits from their school-age children, hitherto conducted at weekends, to weekdays during the state of emergency was declared inadmissible as manifestly ill-founded by the Constitutional Court. In its examination, it noted that the restriction in question had constituted an interference with the applicant's right to respect for his family life, given the difficulty he had experienced over a period of seven months in meeting with his children on weekdays while they were at school. It then found that the interference had a basis in Law no. 5275, as well as in the Regulation on Visits, which provided that visits could be restricted by a decision of the prison administration and further restrictions could be put in place for detainees charged with terrorism-related offences. Having regard to the nature of the terrorism-related offence with which the applicant had been charged, the ongoing nature of the state of emergency, and the constraints faced by the prison in terms of prison population and staff shortages, it found that the impugned measure, which had been put in place to maintain security and order in the prison, had a legitimate aim. As regards proportionality, it noted that the prison administration's decision had contained concrete reasons which appeared reasonable. It then noted that the restriction had been limited to the state of emergency and applied to all prisoners. Lastly, noting that visits had not been altogether suspended but rather restricted to weekdays and only for the duration of the state of emergency, the Constitutional Court found that the restriction had not been disproportionate.

(c)    Inadmissibility decision of 3 July 2018 in the case of Bayram Sivri

42 .     This case concerned an individual appeal by a detained individual regarding a prison administration's decision to limit telephone rights to fifteen days during the state of emergency for those charged with terrorism-related offences or offences against the security of the State on the basis of section 6(1)(e) of Emergency Decree no. 667. Examining the case from the standpoint of Articles 8, 14 and 15 of the Convention, the Constitutional Court found that the measure, which had been introduced during the state of emergency and had been limited to that period and only for certain categories of offenders, was in accordance with the law, pursued the legitimate aim of preserving security and order in the institution and was not disproportionate, given that the applicant had not been completely prevented from making telephone calls and the permissible duration of a call had remained the same as before the restriction had been put in place (that is to say ten minutes). The Constitutional Court further considered that the measure had not been discriminatory, given that certain categories of offences could be subject to different types of correctional regimes depending on the gravity of the offence and the security concerns of the prisons. Considering the correlation between the attempted coup and the offences falling within the scope of that measure, the Constitutional Court further concluded that there had been no violation of the applicant's right to respect for his family life and correspondence.

(d)    Decision on the merits of 29 May 2019 in the case of Ümit Balaban (no. 3)

43.     This case concerned a convicted prisoner's individual appeal under Article   8 of the Convention regarding a decision by the domestic authorities refusing to allow him to exercise his right to telephone calls with his daughter at weekends. The events giving rise to that application predated the attempted coup and the ensuing state of emergency. The applicant had been convicted of a non-terrorism-related offence and was serving his sentence in the Tekirdağ F-type prison, approximately 500 km away from İzmir, where the applicant's daughter lived with her mother and studied at a high school. The applicant did not have custody of his daughter and had limited visiting rights during certain weekends, religious holidays and part of the summer vacation period. In his requests to the domestic authorities, he explained that because of his incarceration, it was his family who looked after his daughter during certain weekends, which was the only time he could talk to her on the telephone; however, the prison administration only allowed prisoners to make calls on weekdays between the hours of 9 a.m. and 5 p.m. He further added that his divorce made it difficult for him to call his ex-wife's house to talk to his daughter on the telephone on weekdays. In any event his daughter was at school between 9 a.m. and 3 p.m. and the remaining two-hour window was not always sufficient to coordinate the calls. The applicant further argued that the prison where he had previously served part of his sentence had allowed him to exercise his right to have telephone conversations at weekends.

In its examination, the Constitutional Court noted that the prison administration had dismissed the applicant's request on the grounds of security and shortage of staff during weekends. In the Constitutional Court's view, the reasons put forward by the domestic authorities had been too general and the courts reviewing those decisions had not taken into account the applicant's individual circumstances, specifically the substantial difficulty he had had in maintaining his relationship with his daughter. Moreover, there had been no discussion of the fact that the applicant's request had been granted by a prison where he had previously served his sentence, nor had the authorities fulfilled their positive obligation to put in place measures to secure the applicant's right to maintain contact with his daughter.

(e)    Decision on the merits of 11 March 2021 in the case of Yeliz Erten

44 .     This case concerned a prison administration's refusal of the applicant's request to have the time slot of her weekly telephone call to be determined in such a way as to enable her to talk to her school-aged children. Similar to the events in the cases of the present applications, in that applicant's case, the prison administration by way of its general decision of 28   January 2019 had decided that all telephone calls would be held on the weekdays. In the case of the applicant, the time slot determined for telephone calls was between 9 a.m. to 11 a.m. on Wednesdays. The applicant's individual request to be able to make a telephone call either on a weekday between 4 p.m. to 5 p.m. or at weekends given that her children attended pre-school was refused on the basis of similar reasons as the ones given by the enforcement judges in the present applications.

The Constitutional Court found a violation of the applicant's right to respect for her family right, noting that the authorities had not justified their decision to restrict the telephone calls to weekdays other than referring to some general security concerns. The high court underlined that the primary consideration that the child's best interests be taken into account in all actions or decisions relating to children had been disregarded in the proceedings and that the applicant's request to have her time slot be arranged to a later time of the day so as to enable her to make a telephone call had not been considered at all neither by the prison administration nor during the judicial review proceedings.

2. council of europe ınstruments

45 .     The relevant parts of Recommendation CM/Rec(2018)5 of the Committee of Ministers to member States concerning children with imprisoned parents, adopted on 4 April 2018, states as follows:

"II. Basic principles

...

3. Whenever a parent is detained, particular consideration shall be given to allocating them to a facility close to their children.

...

IV. Conditions of imprisonment

...

Allocation, communication, contact and visits

16. Apart from considerations regarding requirements of administration of justice, safety and security, the allocation of an imprisoned parent to a particular prison, shall, where appropriate, and in the best interests of their child, be done such as to facilitate maintaining child-parent contact, relations and visits without undue burden either financially or geographically.

17. Children should normally be allowed to visit an imprisoned parent within a week following the parent's detention and, on a regular and frequent basis, from then on. Child-friendly visits should be authorised in principle once a week, with shorter, more frequent visits allowed for very young children, as appropriate.

18. Visits shall be organised so as not to interfere with other elements of the child's life, such as school attendance. If weekly visits are not feasible, proportionately longer, less frequent visits allowing for greater child-parent interaction should be facilitated.

...

22. When a child's parent is imprisoned far away from home, visits shall be arranged in a flexible manner, which may include allowing prisoners to combine their visit entitlements.

...

26. Rules for making and receiving telephone calls and other forms of communication with children shall be applied flexibly to maximise communication between imprisoned parents and their children. When feasible, children should be authorised to initiate telephone communications with their imprisoned parents.

...

30. Special measures shall be taken to encourage and enable imprisoned parents to maintain regular and meaningful contact and relations with their children, thus safeguarding their development. Restrictions imposed on contact between prisoners and their children shall be implemented only exceptionally, for the shortest period possible, in order to alleviate the negative impact the restriction might have on children and to protect their right to an emotional and continuing bond with their imprisoned parent.

...

Policy development

45. Any new policies or measures designed by or for the prison administration which may impact child-parent contact and relations shall be developed with due regard to children's rights and needs.

..."

46 .     Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules, adopted on 11   January 2006, and revised and amended by the Committee of Ministers on 1 July 2020, reads as follows:

Part II

"...

Contact with the outside world

24.1 Prisoners shall be allowed to communicate as often as possible - by letter, telephone or other forms of communication - with their families, other persons and representatives of outside organisations, and to receive visits from these persons.

24.2 Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offences and protection of victims of crime, but such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact.

...

24.4 The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible.

24.5 Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so.

..."

THE LAW

1.         JOINDER OF THE APPLICATIONS

47.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly.

2. ALLEGED VIOLATIONs OF ARTICLE 8 OF THE CONVENTION

48.     All the applicants complained that their right to respect for their private and family life had been violated as a result of the decisions of the national authorities to restrict their visiting rights with their children at weekends. The applicants in application nos. 5898/20and 7270/20further complained about the restriction on making telephone calls at weekends. They relied on Article 8 of the Convention, which reads as follows:

"1.     Everyone has the right to respect for his private and family life ... and his correspondence.

2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

49.     With respect to the period to be taken into consideration for the examination of the applications, the Government argued that the starting-point should be the date when the applicants had raised their complaints before the competent authorities - be it the prison administration where that administration had not issued any prior general decisions or the enforcement judge where there had been a prior general decision - and not on the date when the applicants had first been admitted to the respective prisons. The Government also noted that the relevant period should be considered to have ended when the Constitutional Court had examined the individual complaints, unless the applicants had been released prior to that court's decision or unless the prisons had meanwhile started allowing visits or telephone calls. They provided the Court with a date range for each application following this approach (see appendices I and II).

50.     Some applicants disagreed with the Government's assessment. In their view, the complaint should instead be assessed from the date on which the prison administration had put in place the restrictions regarding weekend visits until the date on which those restrictions had been terminated.

51.     The Court finds that the relevant period to be taken into consideration with respect to the alleged interference with the applicants' rights under Article   8 of the Convention began on the date on which the restrictions were introduced and ended on the date when the applicants were no longer affected by them, that is to say, when the restrictions were lifted or when the applicants were released or when they were transferred to a different detention facility. However, as it is not possible to identify from the case file the exact point in time when the restrictions were put into practice by each prison administration, the Court will take as the starting-point of the relevant period the date of the general decision by the prison administration for the applicants who were affected by such a decision and, for the remainder of the applicants, the date when they first submitted a request to have their weekly visits or telephone calls at the weekends, should that request have been submitted prior to the general decision of the administration or where no general decision was issued. The date range for each applicant in accordance with the Court's approach is indicated in column 7 of Appendix II.

1. Complaint concerning restrictions on weekend visits
   1. Admissibility

(a)    No significant disadvantage in respect of all applicants

(i)       The parties' arguments

52.     The Government submitted that none of the applicants had suffered a significant disadvantage, given that they had been able to receive visits from their children on weekdays and they had not been deprived of the possibility of using other means of communicating with their children, such as by telephone or correspondence. Referring to the table in which they listed the total number of visits the applicants had actually had from their children and noting the absence of an allegation that the complaints pointed to a legislative or structural problem, the Government argued that respect for human rights did not require the examination of the applications on the merits.

53.     The applicant Mehmet Subaşı argued that during the relevant period, because his children had only been able to visit him either by not going to school or during the summer vacation, he had suffered a significant disadvantage as a result of not seeing his children regularly.

54.     The applicant Barış Yaslan disputed that he had suffered no significant disadvantage on account of the restriction on weekend visits. He submitted that he had not been able to see his children on all the occasions when visits were allowed. Referring to the number of visits received by him (see Appendix II), he noted that his children had only been able to attend fewer than half of the visits and some of those had been during the summer vacation periods. He further argued that when his children had come to visit him on weekdays, the fact that they had not only had to sacrifice their schooling, but had also suffered from fatigue as a result of the 550 km journey, had created stress and suffering for him and his family.

55.     The applicant Abdülkadir Civan submitted that the fact that his family had been required to choose between visiting him on weekdays and his children going to school - considering that their presence in any event was obligatory in secondary schools in Türkiye, and that a student who was absent for more than ten days automatically failed the semester - had in itself entailed a significant disadvantage.

56.     The applicant Uğur Eldemir submitted that he had not been able to see his children on a weekly basis solely on account of the fact that the prison administration had decided to hold visits on weekdays. The fact that he had not been able to maintain regular face-to-face contact with his children had in itself entailed a significant disadvantage, going to the core of his right to respect for family life.

57.     The applicant Ahmet Şanlı argued that the information submitted by the Government regarding the total number of visits made by his children was misleading inasmuch as it did not differentiate between the times when both of his children had visited him. He submitted that whereas his son, who had been too young to attend school at the time, had come to visit him on weekdays, his daughter, who had been going to school, had rarely visited him on account of conflicting schedules.

58.     The applicant İbrahim Karaca, while not contesting the information submitted by the Government regarding the total number of visits he had received, likewise pointed out that the figures did not reflect the fact that all three of his children had rarely been able to visit him together on account of school constraints. He argued that for this reason he had suffered a significant disadvantage on account of not being able to reunite as a family during those visits.

59.     Furthermore, all of the above-mentioned applicants submitted that other modes of communication could not replace the importance of face-to-face communication with their children.

60.     The remaining applicants did not specifically comment on this point.

(ii)     The Court's assessment

61.     The Court notes that, following the entry of the entry into force of Protocol No. 15 on 1 August 2021, it has considered the rule contained in Article   35 §   3   (b) of the Convention to consist of two criteria: firstly, whether the applicant has suffered a "significant disadvantage"; and secondly, whether respect for human rights compels the Court to examine the case (see Bartolo v. Malta (dec.), no. 40761/19, § 22, 7 September 2019).

62.     The first question, whether the applicant has suffered any "significant disadvantage", represents the main element. Inspired by the general principle de minimis non curat praetor , this first criterion of the rule rests on the premise that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed taking into account both the applicant's subjective perceptions and what is objectively at stake in a particular case (see, among other authorities, Biržietis v.   Lithuania , no.   49304/09, §   36, 14 June 2016). In other words, the absence of any "significant disadvantage" can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant. However, the applicant's subjective perception cannot alone suffice to conclude that he or she has suffered a significant disadvantage. The subjective perception must be justified on objective grounds (see   C.P. v.   the   United   Kingdom (dec.), no. 300/11, § 42, 6 September 2016, with further references).

63.     Turning to the facts of the present cases, the Court does not agree that, in the circumstances, the prolonged periods during which the applicants were unable to see their school-age children on a weekly basis as provided for by domestic law could constitute an "insignificant" disadvantage. Neither does it consider it a trivial disadvantage that the applicants maintained contact with their children to a less frequent extent than would have had been the case had weekend visits been available to them. The Court reiterates in that connection that mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life, and that domestic measures hindering such enjoyment amount to an interference with the right protected by Article   8 (see Strand Lobben and Others v. Norway [GC], no.   37283/13, §   202, 10 September 2019). It cannot therefore be said that the prohibition on weekend visits did not result in a significant disadvantage for the applicants as regards their enjoyment of family life. Consequently, this objection must be dismissed.

(b)    Victim status of the applicants in respect of applications nos. 5898/20and 16557/20

64.     The Government submitted that the applicants Barış Yaslan and Abdülkadir Civan had lost their victim status, given that the impugned decision of the prison administration had been set aside by the domestic court in the case of Barış Yaslan and the practice of prohibiting weekend visits had been reversed by the prison administration itself in the case of Abdülkadir Civan (see paragraphs 14-15 and 25 above respectively), with the result that the applicants had been able to receive visits from their school-age children from that moment on.

65.     The applicant Barış Yaslan submitted that he had maintained his victim status because the favourable decisions of the domestic courts had taken effect from November 2019 and he had only been able to receive visits from his children until March 2020, when the COVID-19 pandemic had broken out and new restrictions had been put in place.

66.     The applicant Abdülkadir Civan disagreed with the Government, arguing that the decisions of the domestic courts and the changing practice of the prison administration had only applied to the period after 2019 and that those decisions had not contained any acknowledgment of a violation for the earlier periods in respect of which the applicant had made his complaint.

67.     The Court reiterates that the adoption of a measure favourable to the applicant by the domestic authorities will deprive the applicant of victim status only if the violation is acknowledged expressly, or at least in substance, and is subsequently redressed (see Scordino v. Italy (no.   1)   [GC], no.   36813/97, §§ 178 et seq. and 193, ECHR 2006-V, and Brumărescu v.   Romania [GC], no. 28342/95, § 50, ECHR 1999-VII).

68.     The Court observes that following the reversal of the prison administrations' impugned decisions, the applicants were allowed to receive weekend visits from that moment on. At the same time, the Court notes that the applicants' complaints concerned the one-year period before the favourable decisions of the domestic authorities, during which the applicants had been unable to receive visits on the weekends. The decisions of the domestic courts, including the Constitutional Court, did not contain any acknowledgment of a violation in respect of the period in question, nor has any redress been provided to the applicants. In these circumstances the Court concludes that the applicants could be considered victims for the period in question (see column 7 of Appendix II).

(c)    Non-exhaustion of domestic remedies in respect of application no.   34247/20

69.     The Government argued that the applicant Kutlay Telli's application should be dismissed for failure to comply with the requirement to exhaust domestic remedies, given that his individual appeal before the Constitutional Court had been rejected as being lodged out of time (see paragraph 22 above).

70.     In response, the applicant submitted that he had filled out his application form and given it to the prison administration within the thirty - day time-limit and that it had been the prison administration's fault that his appeal had not been lodged immediately. He submitted in that connection that prisoners could only lodge an individual appeal through the prison administration and that delays on the part of the latter should not imputed to the applicants. The applicant argued that in any event the Constitutional Court had dismissed all similar applications as inadmissible, even if they had been lodged within the time-limit, and that therefore it would not have been an effective remedy in respect of his complaint.

71.     The Court observes that the parties disputed the actual date on which the applicant's individual appeal was lodged with the Constitutional Court. Whereas the Government argued that the appeal had been registered through the prison administration on 13 March 2018, the applicant disputed that date, arguing that he had given his application form to the prison administration on 6   March 2018 but that it had been forwarded to the Constitutional Court one week later.

72.     The general principles concerning exhaustion of domestic remedies are outlined in Vučković and Others v. Serbia ((preliminary objection)   [GC], nos.   17153/11and 29 others, §§ 69-77, 25 March 2014). The Court reiterates, in particular, that under Article 35 of the Convention, the only remedies that must be exhausted are those that are effective and capable of redressing the alleged violation (see, among many other authorities, Paksas v.   Lithuania   [GC], no.   34932/04, §   75, ECHR 2011 (extracts)). More specifically, the only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient; the existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness. It falls to the respondent State to establish that these various conditions are satisfied (see Karácsony and Others v.   Hungary [GC], nos. 42461/13and 44357/13, §   76, 17 May 2016).

73.     Turning to the circumstances of the applicant's case, the Court notes that none of the parties submitted proof of the date of receipt of the applicant's application form by the prison administration. That being so, the Court considers that it is not necessary for it to come to a conclusion on this point because even assuming that the applicant did not lodge his appeal with the Constitutional Court through the prison administration on time, his application cannot be declared inadmissible for non-exhaustion of domestic remedies. In that connection, the Court is aware of the essential role played by this high court at the national level for the protection of human rights and notes that the Constitutional Court has recently delivered a decision finding a violation of a petitioner's right to respect for her family life on account of a prison administration's refusal to consider the prisoner's request to make use of her telephone rights in a manner so as to be able to talk to her children (see paragraph 44 above). However, in view of the Constitutional Court's approach to the matter during the relevant period (see paragraphs 40- 42 above) and the identical decisions it delivered in respect of other applicants, the Court is not convinced that the individual application to the Constitutional Court referred to by the Government would have had a chance of success in the applicant's case . Accordingly, in the circumstances of the present case, the Government's argument in this regard must be rejected.

(d)    Conclusion as to admissibility

74.     Having rejected the Government's submissions on inadmissibility, the Court concludes that the complaint with respect to restrictions on family visits is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention and must therefore be declared admissible.

2. Merits

(a)    The parties' arguments

75.     The applicants reiterated their arguments. They argued that there had been no pressing need to prohibit visits at weekends, that the reasons furnished by the prison administrations had been abstract and too general and that none of the courts had examined their Article 8 complaints.

76.     The Government submitted that there had been no blanket ban on the prisoners' receiving visits from their families. With reference to the actual number of visits enjoyed by the applicants (see Appendix II), they further argued that there had been no interference with the applicants' right to respect for their private and family life. The Government contended that the applicants had had an acceptable and reasonably good level of contact with their families in view of the fact that they had benefited from their visiting rights on weekdays together with opportunities for other means of communication with their families. In any event, the Government argued that under domestic law, notably section 83(3) of Law no. 5275 and section   10 of the Regulation on Visits, the prison administrations were granted discretion as to the days on which they could conduct the weekly visits. The decision of the prison administrations to use their discretion in the manner complained of had been motivated by the legitimate aims of maintaining security and order in the prisons, given the influx of prisoners in the aftermath of the attempted coup of 15 July 2016, the shortage of staff together with the difficulty of assigning staff to work outside working hours and at weekends, and the corresponding increase in visits which had created a considerable workload for the prison staff. The Government explained that visiting days required serious and detailed organisation on the part of the prison administration as visiting rooms had to be searched by guards before and after the visits; convicted and remand prisoners had to be searched at separate locations and by different officers when leaving and returning to their rooms; and in addition, those who entered the detention facility, regardless of their title and duty, including prison officers and security guards, had to undergo security searches. Also, during the visits, more than the usual number of security officers had to be present to ensure order and security. In the light of those circumstances and the way in which the visits were organised in practice, the Government asserted that the measures had been entirely proportionate.

(b)    The Court's assessment

(i)       The existence of an interference

77.     As is well established in the Court's case-law, on imprisonment a person forfeits the right to liberty but continues to enjoy all other fundamental rights and freedoms, including the right to respect for family life, so that any restriction on those rights must be justified in each individual case. Detention entails inherent limitations on his or her family life, and some measure of control of the detainee's contacts with the outside world is called for and is not of itself incompatible with the Convention. However, it is an essential part of a prisoner's right to respect for family life that the authorities enable or, if need be, assist him or her to maintain contact with his or her close family (see Khoroshenko v. Russia [GC], no. 41418/04, §§ 116-17, ECHR 2015).

78.     An interference with a prisoner's right to respect for his or her family life does not need to amount to an outright ban on family visits, but can consist in various other measures taken by the prison authorities. The Court has thus found that limitations on the frequency and duration of family visits, supervision of those visits and the subjection of a detainee to special visiting arrangements constitute an interference with the applicants' rights under Article   8 of the Convention (see Resin v. Russia , no. 9348/14, §   23, 18   December 2018, with further references to Van der Ven v.   the   Netherlands , no.   50901/99, § 69, ECHR 2003-II; Klamecki v.   Poland (no.   2) , no.   31583/96, §   144, 3 April 2003; Kučera v. Slovakia , no.   48666/99, §   127, 17 July 2007; Ferla v. Poland , no. 55470/00, § 38, 20 May 2008; and Vidish v.   Russia , no.   53120/08, § 36, 15 March 2016).

79.     The applicants complained that as a result of the prison administrations' refusals to allow visits at weekends, they had been deprived of or seriously limited in their ability to maintain contact with their school - age children. The Court observes that, while it is true that the applicants were able to receive some visits from their children on weekdays as demonstrated by the information submitted by the Government, they were not able to make full use of their entitlement to weekly visits from their children owing to conflicts with school schedules.

The Court therefore considers that the circumstances of the case amount to an interference with the right to respect for family life (see Messina v.   Italy (no.   2) , no. 25498/94, § 61, ECHR 2000-X; Moiseyev v.   Russia , no.   62936/00, § 247, 9 October 2008; and Andrey Smirnov v.   Russia , no.   43149/10, § 38, 13 February 2018). It remains to be seen whether the impugned restriction was applied "in accordance with the law", pursued one or more of the legitimate aims listed in paragraph 2 of Article 8 and, in addition, was "necessary in a democratic society".

(ii)     Justification for the interference

80.     The expression "in accordance with the law" in Article 8 § 2 of the Convention, in essence, refers back to national law and states the obligation to conform to the substantive and procedural rules thereof (see Akopyan v.   Ukraine , no. 12317/06, § 109, 5 June 2014). The expression "in accordance with the law" also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must, moreover, be able to foresee its consequences for him or her, and compatible with the rule of law. The phrase thus implies, inter alia , that domestic law must be sufficiently foreseeable in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which the authorities are entitled to resort to measures affecting their rights under the Convention (see Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR   2014 (extracts), with further references).

81.     The parties agreed that the restrictions on family visits had a statutory basis, namely section 83 of Law no. 5275 and section 31 of the Regulation on Visits, which in turn gave the prison administrations the discretion to determine the days of the visits, provided that they were held once a week. Some applicants argued that the fact that prison administrations had used their discretion to prohibit weekend visits had been an abuse of authority and indicative of their bad faith. Those arguments may be understood as being also directed against the "quality" of the relevant domestic law. That being so, the Court considers that they should be examined below as part of the analysis regarding justification and safeguards against the arbitrary use of discretion. It will therefore proceed on the basis that the interference complained of was "in accordance with the law" (see, for a similar approach, mutatis mutandis , Naumenko and SIA Rix Shipping v. Latvia , no.   50805/14, §   48, 23 June 2022).

82.     The Court further accepts that the impugned restrictions pursued the legitimate aim of prevention of disorder.

83.     It remains for the Court to ascertain whether the authorities struck a fair balance between the needs emanating from the legitimate aim pursued and the applicants' right to respect for their family life while they were in detention.

84.     The Court reiterates that when assessing the obligations imposed on the Contracting States by Article 8 in this area, regard must be had to the ordinary and reasonable requirements of imprisonment and to the resultant degree of discretion which the national authorities must be allowed in regulating a prisoner's contact with his or her family (see Lavents v.   Latvia , no.   58442/00, § 141, 28 November 2002). It is the duty of the State to demonstrate that the inherent restrictions on a prisoner's rights and freedoms are nonetheless necessary in a democratic society and that they are based on a pressing social need (see Płoski v. Poland , no. 26761/95, §   35, 12   November 2002).

85.     The Court notes at the outset that there is no dispute between the parties regarding the fact that the domestic legal framework gave remand and convicted prisoners the right to be visited once a week subject to the conditions determined by the prison administration. It must accordingly be established whether the scope of the discretion of the prison administration in the determination of visiting arrangements and the manner of its exercise were defined with sufficient clarity (having regard to the legitimate aim of the measure in question) so as to give the individual applicants adequate protection against arbitrary interference with their right to respect for family life. In making this assessment, the Court will examine the reasons referred to by the domestic authorities in restricting the weekly visits to weekdays and the manner in which the domestic courts addressed those reasons in the light of the applicants' arguments.

86.     The Court notes that in their requests to the prison administrations, all the applicants pointed out the practical difficulties for their school-age children in visiting them on weekdays in the light of the fact that the children had an obligation to go to school. Moreover, they brought to the attention of the authorities the long journey those visits entailed, given that the detention facilities were a considerable distance from their homes. Lastly, all the applicants relied on their right to family reunion and complained of the negative effects of a prolonged lack of communication with their children on their family life.

87.     In their decisions to refuse weekend visits, all the prison administrations, except for Silivri Prison (see paragraph 19 above with respect to the latter), refused the requests in the same manner, by pointing to prison overcrowding, staff shortages and security concerns. It does not appear that the prison administrations in question made a concrete assessment of how many prisoners had those specific needs or whether any alternative means of facilitating communication between imprisoned parents and their children were possible. Furthermore, the economic burden on the prison administrations of conducting the visits at weekends was described in vague terms and no consideration was paid to the fact that permitting visits only on weekdays and during working hours was very restrictive and burdensome in terms of maintaining the relationships between imprisoned parents and their children.

88.     The Court reiterates that on the issue of family visits Article 8 requires States to take into account the interests of the prisoner and his or her family members and to evaluate them not in terms of broad generalities but in application to the specific situation. The regulation of such issues may not amount to the one-size-fits-all approach, and States are expected to develop their proportionality assessment technique, enabling the authorities to balance the competing individual and public interests and to take into account the peculiarities of a case, such as those in the present applications, namely the distance of detainee's home from the prison, whether or not the detainee has school-age children and conflicts with school schedules when organising visits (see, mutatis mutandis , Andrey Smirnov , cited above, § 48, and Voynov v.   Russia , no. 39747/10, § 49, 3 July 2018).

89.     The Court further notes that it has previously drawn the attention of the national authorities to the importance of the recommendations set out in the European Prison Rules of 2006 as applicable at the relevant time (see paragraph   46 above; see, among other authorities, Nusret Kaya and Others v.   Turkey , nos. 43750/06and 4 others, §   55, ECHR 2014 (extracts)). It reiterates in that connection that the States have a positive obligation to help prisoners maintain contact with their families (see Khoroshenko , cited above, §   123). In the case of imprisoned parents, Recommendation CM/Rec(2018)5 of the Committee of Ministers (see paragraph 45 above) also encourages authorities to facilitate communication between imprisoned parents and their children. Notably, if the imprisoned parent is detained far from home, the authorities are advised to arrange visits in a flexible manner with a view to maximising the quality and duration of the communication and preventing the interruption of the children's educational activities.

90.     The Court observes that in using their discretionary power to determine the days of the weekly visits, the prison administrations made their decisions solely on the basis of considerations relating to the capacity of the prisons rather than the prisoners and their relationships with their children. It seems that the restriction of visits to weekdays and to working hours was intended to decrease the number of visitors so that it would be easier for the authorities to manage the visits.

91.     With respect to the trial courts' examination of the applicants' complaints, and in particular the manner in which those courts verified that the discretion enjoyed by the prison administration had not amounted to an arbitrary interference, the Court observes that the trial courts accepted the impugned restriction solely on the basis of the reasons stated in the prison administrations' decisions, by verifying whether the restriction had a legal basis without a concrete, Convention-compliant assessment. In that connection, it does not appear from the decisions of the trial courts that they weighed up the competing interests or carefully considered the applicants' arguments.

92.     Lastly, with respect to the Constitutional Court's assessment of the case, the Court notes that that court dismissed the individual appeals by the applicants in a summary fashion with reference to its case-law which was pertinent to the restrictions introduced during the state of emergency following the attempted coup of 15 July 2016. However, the Court observes that the applicants' complaints concerned a period post 18 July 2018, that being the date when the state of emergency had been lifted, thus calling for a fresh examination by the Constitutional Court.

93.     The Court therefore concludes that the domestic legal framework as applied in the current case did not provide the applicants with sufficient protection against arbitrary interference with their right to respect for family life, as required by the Convention . It therefore finds that there has been a violation of Article 8.

2. Complaint concerning restrictions on weekend telephone calls in respect of application nos. 5898/20and 7270/20
   1. Admissibility

(a)    The parties' arguments

94.     The Government disputed the victim status of the applicants and in any event submitted that they had not suffered a significant disadvantage in respect of the telephone call restrictions in question. With reference to the actual number of telephone calls the applicants had been able to make during the relevant period, the Government argued that the applicants had never been prohibited from using their right to make telephone calls and that, moreover, a significant number of the actual calls they had made had taken place at weekends.

95.     The Government submitted in that connection that Barış Yaslan had made twenty-eight telephone calls in 2018, all of them on weekdays and, with the exception of one telephone call, they had been with his wife and/or his children. Moreover, following the decision of 7 May 2019, the applicant had had no difficulty whatsoever in using his right to make telephone calls at weekends. According to the Government, the only period during which the applicant had not been able to make a telephone call at weekends had been the eight-month window between the applicant's admission into the prison on 26   September 2018 and the prison administration's decision of 7   May 2019 to allow telephone calls at weekends (see paragraph 13 above). To further illustrate this point, the Government submitted that the applicant had made nineteen calls on weekdays and thirty-four calls at weekends in 2019. With the exception of four of those calls, they had all been with his family.

96.     In respect of the applicant Seyfettin Açıkgöz, the Government noted that the applicant had exercised his right to telephone calls with his wife and/or his children only and they submitted the following figures: in 2017 the applicant had made three calls on weekdays and eighteen calls at weekends; in 2018 he had made thirty-six calls on weekdays and no calls at weekends; in 2019 he had made thirteen calls on weekdays and thirty-nine calls at weekends; in 2020 he had made forty-one calls on weekdays and eleven calls at weekends; and in 2021 he had made thirty-three calls on weekdays and no calls at weekends.

97.     Although the applicants did not contest the figures submitted by the Government regarding the number of telephone calls they had actually made, they maintained that they had been unable to talk with their school-age children when telephone hours conflicted with school days and hours. They argued in that connection that the figures submitted by the Government did not specify whether the applicants had been able to converse with their children in the course of those calls.

98.     The applicant Barış Yaslan did not dispute that his complaint concerned a period of eight months during which he had been unable to make telephone calls at weekends. He submitted that he had had very little communication with his family during that time on account of the fact that weekend visits had also been prohibited. He maintained that the period in question had not been negligible and that he had suffered the effects of not being able to bond with his children. He further argued that neither the prison administration nor the courts reviewing the decision not to allow telephone calls at weekends had put forward concrete reasons to justify that policy. According to the applicant, there had been no pressing need to deny telephone calls at weekends, as was attested by the reversal of that decision by the prison administration on 7 May 2019, despite the fact that there had been no change in circumstances at the prison.

99.     The applicant Seyfettin Açıkgöz submitted that the restrictions on making telephone calls coupled with the prohibition of visits at weekends had prevented him from maintaining regular contact with his children. Lastly, he submitted that he had not seen or heard from his children for months at a stretch, which had led to the loss of his family life while he was in detention.

(b)    The Court's assessment

100.     The Court reiterates that, in respect of telephone access, Article 8 of the Convention cannot be interpreted as guaranteeing prisoners the right to make telephone calls, in particular where the facilities for contact by way of correspondence are available and adequate (see A.B. v.   the   Netherlands , no.   37328/97, § 92, 29 January 2002; Davison v. the United Kingdom (dec.), no.   52990/08, 2 March 2010; Nusret Kaya and Others , cited above, §   36; and Lebois v. Bulgaria , no. 67482/14, § 61, 19 October 2017). Where, however, domestic law allows prisoners to conduct telephone conversations with their relatives, any restriction imposed thereon may be regarded as an interference with the exercise of a prisoner's right to respect for his or her relevant rights secured by Article 8 of the Convention, and so must meet the requirements of the second paragraph of that Article (see Nusret Kaya and Others , §§   36-37, and Lebois , § 62, both cited above).

101.     In the context of the applicants' complaint concerning the restrictions on their maintaining regular and meaningful contact with their children, and the importance for prisoners of maintaining contact with the outside world, the Court dismisses the Government's objections as to the applicants' lack of victim status and the lack of significant disadvantage suffered by them.

102.     The Court further notes that the complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention and it must therefore be declared admissible.

2. Merits

(a)    The parties' arguments

103.     The applicants maintained their grievances.

104.     The Government submitted that the restrictions on weekend telephone calls had fulfilled the requirements of Article 8 § 2 of the Convention. They explained that the restrictions had had a basis in law, namely section 66 of Law no. 5275 and section 88 of Regulation no.   26131. They had pursued the legitimate aim of preventing disorder and maintaining security in prisons. Furthermore, they had been necessary in the wake of the increased number of prisoners following the attempted coup and the decrease in prison staff. The Government explained that arranging telephone calls for hundreds of detainees had created a serious and significant workload for the prison staff and that they had therefore had to organise fixed days and time slots for the calls. Lastly, the Government argued that the impugned restrictions had been reviewed by the domestic courts, which had not found that Article 8 had been infringed in the applicants' cases.

(b)    The Court's assessment

105.     The Court reiterates that even though Article 8 cannot be interpreted as imposing a general obligation to ensure prisoners' access to telephones, since under Turkish law the applicants had the right to make telephone calls, any limitations on the use of that right at weekends for calls with their children must be seen as an interference with their "private and family life" and "correspondence" (see, mutatis mutandis , Lebois , cited above, §   64, and Ciupercescu v. Romania (no. 3) , nos. 41995/14and 50276/15, §§   107-08, 7   January 2020).

106.     To comply with Article 8, such interference must be "in accordance with the law", pursue one or more of the legitimate aims set out in its second paragraph, and be "necessary in a democratic society" to attain those aims.

107.     Similarly to its findings above with respect to the restrictions on weekend visits, the Court is prepared to accept that the restriction on making telephone calls at weekends had a basis in law, namely section 66 of Law no.   5275 and section 88 of Regulation no. 26131, and pursued the legitimate aim of prevention of disorder.

108.     As regards the necessity of those restrictions, the Court notes that the prison administrations' decisions to prohibit telephone calls at weekends were formulated in very general terms, without any concrete assessment of the needs of the prisoners or consideration of the positive obligations of the State in facilitating the prisoners' contact with their children. Therefore, its above findings with respect to weekend visits are likewise applicable in relation to the restrictions on telephone calls. In particular, in the case of the applicant Seyfettin Açıkgöz, even though he explicitly drew the authorities' attention to the fact that both his visiting and telephone rights had been restricted to weekdays, his request to be granted at least one of those rights at weekends was not entertained at all. The Constitutional Court, when dealing with his individual appeal, dismissed that complaint, referring to its decision in a previous case which had been dismissed because that applicant had no children whereas the Court observes from the documents submitted in the case-file of Seyfettin Açıkgöz that he has three children. The Court therefore notes that the domestic authorities engaged with the applicants' Convention complaints in a superficial manner, depriving them of the procedural guarantees inherent in Article 8 of the Convention with respect to their family life and correspondence.

109.     There has accordingly been a violation of Article 8 of the Convention on account of the restrictions on telephone calls at weekends.

3. ALLEGED VIOLATION OF artıcle 6 of THE CONVENTION In respect of Applications N os . 12513/20and 16917/20

110.     Lastly, the applicants Mustafa Burgaç and Mehmet Tuskan complained that in the course of the proceedings before the Osmaniye Assize Court concerning their visiting rights, the opinion of the public prosecutor had not been forwarded to them, which had infringed their right to a fair trial. They relied on Article 6 § 1 of the Convention, the relevant part of which provides:

"In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ..."

111.     The Government firstly raised an objection of failure to exhaust domestic remedies in respect of the applicant Mehmet Tuskan. They pointed out that, to the extent that the applicant complained that he had not been notified of the prosecutor's observations in respect of his appeal, he had failed to raise that issue in his appeal on points of law.

The Government also raised an objection under Article 35 § 3 (b) of the Convention, being of the view that the fact that the applicants had not been notified of the prosecutor's opinions had not given rise to any significant disadvantage for the applicants. They maintained that those opinions had not contained any new arguments and had merely called for the rejection of the applicants' appeals. In that connection, the Government referred to the Court's decision in Kılıç and Others v. Turkey ((dec.), no. 33162/10, §   34, 3   December 2013).

112.     The Court notes that complaints similar to those in the present case have been examined and declared inadmissible in the past under Article   35 §   3   (b) of the Convention when the prosecutor's opinion of which the applicant had not been notified contained no new elements in the case (see Kılıç and Others , cited above, § 34; Günana and Others v.   Turkey , nos.   70934/10and 4   others, § 79, 20 November 2018; and, Nuh Uzun and Others v.   Turkey, nos. 49341/18and 13 others, § 107, 29 March 2022).

113.     Having regard to the content of the written opinions submitted by the public prosecutor in the proceedings in issue, the Court finds no particular reasons in the present applications which would require it to depart from its findings in the above-mentioned cases.

114.     In the light of the foregoing, this complaint is inadmissible and must be rejected pursuant to Article 35 §§ 3 (b) and 4 of the Convention.

4. APPLICATION OF ARTICLE   41 OF THE CONVENTION

115.     Article   41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

1. Damage

116.     The applicant Mehmet Subaşı claimed 10,000 euros (EUR) in respect of non-pecuniary damage.

117.     The applicant Barış Yaslan claimed EUR 15,000 in respect of non-pecuniary damage.

118.     The applicant Seyfettin Açıkgöz asked the Court to make him an award in pecuniary damage without specifying an amount or substantiating his claim, and claimed EUR 70,000 in respect of non-pecuniary damage.

119.     The applicant Coşkun Halitoğlu claimed EUR 100,000 in respect of non-pecuniary damage.

120.     The applicant Mustafa Burgaç claimed EUR 40,000 in respect of non-pecuniary damage.

121.     The applicant Hacı Serhat Karslı claimed EUR 10,000 in respect of non-pecuniary damage.

122.     The applicant Abdülkadir Civan claimed EUR 20,000 in respect of non-pecuniary damage.

123.     The applicant Mehmet Tuskan claimed EUR 2,000,000 in respect of non-pecuniary damage.

124.     The applicant Uğur Eldemir claimed EUR 5,000 in respect of pecuniary damage for the travel expenses his family had incurred for visiting him and EUR 20,000 in respect of non-pecuniary damage.

125.     The applicant İsmail Kurt claimed EUR 20,000 in respect of non-pecuniary damage.

126.     The applicant Mustafa İpek claimed EUR 200,000 in respect of non-pecuniary damage.

127.     The applicant Ahmet Şanlı claimed an award in respect of non-pecuniary damage but left the amount to the Court's discretion.

128.     The applicant Erhan Akbaba claimed EUR 100,000 in respect of non-pecuniary damage.

129.     The applicant İbrahim Karaca claimed EUR 30,000 in respect of non-pecuniary damage.

130.     The applicant Seydihan Güz claimed EUR 50,000 in respect of pecuniary damage, without substantiating his claim, and EUR   50,000 in respect of non-pecuniary damage.

131.     The applicant Serkan Sarıyüz claimed EUR 30,000 in respect of pecuniary damage, without substantiating his claim, and EUR   100,000 in respect of non-pecuniary damage.

132.     The remaining applicants did not make a claim for just satisfaction within the time-limit set under Rule 60 § 2 of the Rules of Court.

133.     The Government contested those amounts, finding them excessive and unjustified.

134.     The Court does not discern any causal link between the violation found and the pecuniary damage alleged by those applicants who have made a specific claim under that head; it therefore rejects the claims in respect of pecuniary damage. However, it awards each of the applicants who made a claim in respect of non-pecuniary damage EUR 1,500 under that head (see , Ferla v. Poland , no. 55470/00, § 53, 20 May 2008), plus any tax that may be chargeable.

2. Costs and expenses

135.     The applicant Mehmet Subaşı claimed EUR 900 in respect of the work carried out by his representative, submitting a contract, and EUR   34 in respect of costs and expenses incurred before the Court.

136.     The applicant Barış Yaslan claimed EUR 30 in respect of postal costs and expenses incurred before the Court.

137.     The applicant Coşkun Halitoğlu claimed 364 Turkish liras (TRY) [1] in respect of costs and fees incurred before the Constitutional Court in the context of his individual appeal.

138.     The applicant Hacı Serhat Karslı claimed TRY 20,000 in respect of the work carried out by his representative before the Court, submitting a contract.

139.     The applicant Abdülkadir Civan claimed TRY 30,168 in respect of the work carried out by his representative before the Court, referring to the İzmir Bar Association's scale of fees.

140.     The applicant Mehmet Tuskan claimed TRY 4,854 in respect of the work carried out by his representative before the Court and in respect of postal expenses, submitting receipts.

141.     The applicant Uğur Eldemir claimed EUR 2,500 in respect of the work carried out by his representative before the Court but did not submit any supporting documents.

142.     The applicant İsmail Kurt claimed EUR 4,516 in respect of the work carried out by his representative before the Court, submitting a contract.

143.     The applicant İbrahim Karaca claimed TRY 30,000 in respect of the work carried out by his representative before the Court, submitting a contract.

144.     The applicant Seydihan Güz claimed EUR 2,500 in respect of the work carried out by his representative and other costs and expenses incurred before the Court. As supporting documents, he submitted a contract signed with his representative and a receipt for a payment of TRY 15,000.

145.     The Government contested those claims.

146.     According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the amount of legal work necessary, the Court considers it reasonable to award EUR 500 plus any tax that may be chargeable to those applicants (Mehmet Subaşı, Hacı Serhat Karslı, Abdülkadir Civan, Mehmet Tuskan, İsmail Kurt, İbrahim Karaca, and Seydihan Güz) who claimed reimbursement in respect of the work carried out by their representatives before the Court, plus any tax that may be chargeable to these applicants. Lastly, the Court awards EUR 30 each to the applicants Barış Yaslan and Coşkun Halitoğlu, plus any tax that may be chargeable to them.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;
2. Declares the complaints under Article   8 of the Convention admissible and the remainder of the applications inadmissible;
3. Holds that there has been a violation of Article 8 of the Convention on account of the restrictions on visits in respect of all applicants;
4. Holds that there has been a violation of Article 8 of the Convention on account of the restrictions on telephone calls in respect of the applicants Barış Yaslan (application no. 5898/20) and Seyfettin Açıkgöz (application no.   7270/20);
5. Holds

(a)   that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article   44   §   2 of the Convention, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i)   EUR 1,500 (one thousand five hundred euros) each to Mr Mehmet Subaşı, Mr   Barış Yaslan, Mr Seyfettin Açıkgöz, Mr Coşkun Halitoğlu, Mr   Mustafa Burgaç, Mr Hacı Serhat Karslı, Mr   Abdülkadir Civan, Mr   Mehmet Tuskan, Mr Uğur Eldemir, Mr   İsmail Kurt, Mr   Mustafa İpek, Mr Ahmet Şanlı, Mr Erhan Akbaba, Mr İbrahim Karaca, Mr Seydihan Güz and Mr Serkan Sarıyüz, plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii)   EUR 500 (five hundred euros) each to Mr Mehmet Subaşı, Mr   Hacı Serhat Karslı, Mr Abdülkadir Civan, Mr Mehmet Tuskan, Mr   İsmail Kurt, Mr İbrahim Karaca and Mr Seydihan Güz and EUR   30 (thirty euros) each to Mr Barış Yaslan and Mr Coşkun Halitoğlu, plus any tax that may be chargeable to them, in respect of costs and expenses;

(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;

6. Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 6 December 2022, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.

 

  Hasan Bakırcı   Arnfinn Bårdsen
  Registrar   President

 

 

APPENDIX

Appendix I - List of cases:

 

 

 

 

 

Appendix II - Information on the number of visits received by the applicants:

 

 

 

[1] TRY 1 was worth approximately EUR 0.0091 at the time of the submission of the applicants' observations.

[*] *   The term "ongoing" in both appendices indicates the situation communicated to the Court at the time of the observations of the parties (end of year 2021).