European Court of Human Rights

SECOND SECTION

CASE OF ÇAYLI AND SERLİ v. TÜRKİYE

(Applications nos. 49535/18and 10419/20)

JUDGMENT
 

STRASBOURG

9 May 2023

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

In the case of Çaylı and Serli v. Türkiye,

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

  Egidijus Kūris , President ,
  Pauliine Koskelo,
  Frédéric Krenc , judges ,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the applications 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 the applicants listed in the appended table ("the applicants"), on the various dates indicated therein;

the decision to give notice of the complaint concerning Article 8 of the Convention to the Turkish Government ("the Government") 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, and to declare inadmissible the remainder of the applications;

the parties' observations;

the decision to reject the Government's objection to the examination of the applications by a Committee;

Having deliberated in private on 11 April 2023,

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

SUBJECT MATTER OF THE CASE

1.     The applications concerned the monitoring and interception of the applicants' correspondence with their lawyers by the prison authorities.

1. Application no. 49535/18

2.     At the material time the applicant was detained pending trial in the Kocaeli Second T-Type Closed Penal Institution on charges of membership of the organisation described by the Turkish authorities as FETÖ/PDY (the "Fetullahist Terror Organisation/Parallel State Structure").

3.     On 23 December 2016 the applicant applied to the Kocaeli enforcement judge, complaining that a letter sent to him by his lawyer had been delivered only after it had been opened and inspected by the prison authorities.

4.     The Kocaeli enforcement judge dismissed the complaint on 22   February 2017 on the grounds that letters sent by lawyers were not within the scope of the protection provided under section 68 § 4 of the Law on the Execution of Penalties and Security Measures ("Law no. 5275") and that only letters sent by prisoners to their lawyers were protected; this was because it was not possible to determine whether such letters really had been sent by a detainee's lawyer.

5.     On 8 March 2017 the applicant appealed against that decision to the Kocaeli Second Assize Court, which rejected his appeal on 17 March 2017.

6.     On 14 April 2017 the applicant lodged an individual application with the Constitutional Court. The Constitutional Court dismissed the application as being manifestly ill-founded on 27 July 2018.

2. Application no. 10419/20

7.     At the material time the applicant was detained in the Denizli T-Type Closed Penal Institution, having been convicted of membership of the FETÖ/PDY.

8.     On 12 December 2018 the prison disciplinary board decided to confiscate the annexes of the letter sent to the applicant by his lawyer containing a judgment of the Second Chamber of the Antalya District Court. In its decision, the disciplinary board stated that the judgment in question had not been issued in respect of the applicant and that the document could not be considered as a letter within the meaning of Law No. 5275.

9.     On 14 December 2018 the applicant submitted an objection against the confiscation decision to the Denizli enforcement judge. On 17 December 2018 the Denizli enforcement judge decided to dismiss that objection.

10.     An appeal by the applicant dated 20 December 2018 was rejected by the Denizli First Assize Court on 21 December 2018.

11.     The applicant then filed an individual application with the Constitutional Court on 31 December 2018, complaining, inter alia , that his right to correspondence with his lawyer had been violated. The Constitutional Court examined this allegation in the context of the applicant's right to have the necessary facilities for the preparation of his defence, and declared it inadmissible for non-exhaustion of legal remedies on 10 January 2020.

THE COURT'S ASSESSMENT

1. JOINDER OF THE APPLICATIONS

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

2. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

13.     The applicants complained under Article 8 of the Convention about the monitoring and interception by prison authorities of their correspondence with their lawyers.

14.     The Government argued that the applicant in application no. 10419/20had failed to exhaust domestic remedies on the grounds - which had been outlined by the Constitutional Court in its decision - that he had applied to the Constitutional Court relying on the right to have adequate time and facilities for the preparation of his defence when in fact the relevant criminal proceedings had not yet been concluded at the time of the application.

15.     The Court observes that the applicant also raised before the Constitutional Court his claim that there had been, in substance, a violation of Article   8 of the Convention due to the monitoring of his correspondence with his lawyer. It therefore dismisses the Government's objection on this point.

16.     The Government further invited the Court to declare the complaints in both applications inadmissible on account of a lack of a significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention. In the light of the Court's well-established case-law (see Campbell v. the United Kingdom , 25   March 1992, §§ 32-54, Series A no. 233; Ekinci and Akalın v.   Turkey , no.   77097/01, § 47, 30 January 2007; and Eylem Kaya v. Turkey , no.   26623/07 , §§ 41 et seq. , 13 December 2016) on this matter, which stresses the privileged nature of the lawyer-client relationship and the importance to respect lawyer-client confidentiality, the Court considers that that objection should also be rejected.

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

18.     The general principles concerning the right to respect for a person's correspondence with his/her lawyer have been summarised in Campbell (cited above, §§ 32-54), Ekinci and Akalın (cited above, § 47) and Eylem Kaya (cited above, § 41).

19.     As regards the existence of an interference with the right to respect for correspondence with a lawyer in the present case, in application no.   49535/18the Government argued that there had been no indication on the envelope of the letter that its sender, C.Ç., was the applicant's lawyer. The applicant disputed that allegation and submitted records of the penal institution showing that the person named C.Ç. had previously visited him in the prison as his lawyer. The Court observes that the Government have submitted no document or argument to refute the applicant's submission. The Court also notes that the Government did not allege that the envelope in question had not borne the name of its sender, C.Ç.

20.     As regards application no. 10419/20, the fact that the attachment to the letter sent to the applicant by his lawyer was confiscated is not disputed by the parties.

21.     In the light of the foregoing, having regard to the domestic courts' acceptance that the letters sent to the applicants by their lawyers were subject to monitoring or interception, the Court concludes that such a practice by the prison authorities constituted an interference with the applicants' right to respect for their correspondence with their lawyers within the meaning of Article 8 § 1 of the Convention.

22.     As regards the lawfulness and in particular the foreseeability of that interference, the Court considers that it is not necessary to rule on those issues, having regard to its conclusion as to the necessity of the interference below (for a similar approach in relation to the right to respect for correspondence with a lawyer, see Ekinci and Akalın , cited above, § 42).

23.     As regards legitimate aims, the Court reiterates that the monitoring of a detainee's correspondence may pursue legitimate aims, in particular the safeguarding of "national security" and/or "the prevention of disorder or crime" under Article 8 § 2 of the Convention (see, mutatis mutandis , Erdem v. Germany , no. 38321/97, § 60, ECHR 2001-VII (excerpts), and Eylem Kaya, cited above, § 39).

24.     Having regard to the absence of any findings to the contrary in the present case, the Court accepts that the interference in question pursued the legitimate aims of preventing disorder and crime.

25.     The Court reiterates that, as regards the necessity of the measure in dispute, a privileged regime under Article 8 of the Convention must be applied to correspondence between a lawyer and a detainee, whatever its purpose (see Eylem Kaya , cited above, § 41, and the case-law cited therein). The confidentiality of correspondence between detainees and their lawyers constitutes a fundamental right of the individuals and directly affects their right to mount a defence. A limitation of this right is therefore permissible only in exceptional circumstances and must be surrounded by adequate and effective safeguards against abuse (ibid., § 44), such as entrusting any necessary control of correspondence to independent judges and not to the prison authorities themselves (ibid., § 45).

26.     The Court considers that it has not been demonstrated in the present case that the monitoring and interception by the prison authorities of the correspondence between the applicants and their lawyers had been carried out in such exceptional circumstances and had been surrounded by the necessary safeguards against abuse. Accordingly, this interference was not "necessary in a democratic society" within the meaning of Article 8 § 2.

27.     There has accordingly been a violation of Article 8 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

28.     The applicant in application no. 49535/18claimed 15,000 euros (EUR) in respect of non-pecuniary damage and EUR 5,080 in respect of costs and expenses. The applicant submitted a contract prepared by his representative, but not signed by the parties, and a detailed explanation of the relevant lawyers' costs. The applicant did not submit any document in support of further costs he claimed.

29.     The applicant in application no. 10419/20claimed EUR 50,000 in respect of non-pecuniary damage and EUR 2,165 in respect of costs and expenses incurred before the Court without submitting any supporting documents.

30.     The Government disputed those claims.

31.     The Court awards each of the applicants EUR 300 in respect of non-pecuniary damage (compare Eylem Kaya , cited above, § 61), plus any tax that may be chargeable.

32.     As for the applicants' claims in respect of costs and expenses, the Court observes that the applicants have failed to show by any supporting documents that they actually incurred the alleged costs and expenses. The Court therefore dismisses the remainder of the claims.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Decides to join the applications;
2. Declares the applications admissible;
3. Holds that there has been a violation of Article 8 of the Convention;
4. Holds

(a)   that the respondent State is to pay each applicant, within three months, EUR 300 (three hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(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 9 May 2023, pursuant to Rule  
77   §§   2 and 3 of the Rules of Court.

  Dorothee von Arnim   Egidijus Kūris
  Deputy Registrar   President

APPENDIX