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SECOND
SECTION
CASE OF USLU v. TURKEY (no. 2)
(Application
no. 23815/04)
JUDGMENT
STRASBOURG
20 January
2009
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 Uslu v. Turkey (no.
2),
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
Nona Tsotsoria,
Işıl Karakaş,
judges,
and Sally Dollé,
Section Registrar,
Having
deliberated in private on 16 December 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 23815/04) against the Republic
of Turkey lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Turkish national, Mr Abdülkadir
Uslu (“the applicant”), on 13 May 2004.
- The
applicant was represented by Ms Ö. Uslu, a lawyer practising in
Istanbul. The Turkish Government (“the Government”) were
represented by their Agent.
- On
29 November 2007 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in Istanbul. He was detained at
the Inebolu prison at the time of the events.
- Upon
the applicant's request he was examined by a doctor at the prison
clinic on 14 January 2004.
- According
to the prison clinic's registry provided by the Government, the
applicant was examined by the prison doctor who considered that he
was suffering from a tension headache. The doctor decided to transfer
the applicant to a neurology department of a hospital. The Government
submitted that, since there was no neurology department at Inebolu
State Hospital, the applicant was transferred to Kastamonu State
Hospital where he was examined by a doctor at the Neurology
Department on 25 March 2004.
- In
the meantime, on 19 January 2004 the applicant filed a petition with
the Inebolu Judge for the Execution of Sentences, after an oral
refusal by the prison authorities, requesting copies of the doctor's
report issued after his medical examination of 14 January 2004 and
the relevant pages of the prison clinic's registry.
- On
21 January 2004 the Inebolu Judge of Execution ordered the prison
authorities to provide the applicant with copies of the requested
documents. The applicant was so provided.
- On
26 January 2004 the Inebolu public prosecutor filed an objection
against the above decision. Referring to the spirit and purpose of a
circular dated 5 December 1990, he claimed, inter alia, that
the delivery of the originals or copies of any official prison
documents to detainees or convicted persons was not permitted, in
practice, on grounds of security and public order.
- On
27 January 2004 the Inebolu Assize Court accepted the prosecutor's
objection on these grounds.
- On
30 January 2004 the documents in question were reclaimed by the
prison authorities.
- On
29 March 2004, the applicant requested the prison authorities to
provide him with a copy of the medical report and prescription issued
at the Kastamonu State Hospital following his medical examination on
25 March 2004. On the same day he received them.
- The
applicant's further request from the Ministry of Justice to quash the
Assize Court's judgment by a written order (yazılı emir)
was also rejected on 4 May 2004.
- On
26 November 2004 the applicant was released from prison.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
circular of the General Directorate of Prisons and Detention Places
of the Ministry of Justice, dated 5 December 1990, referring to
various security breaches in prisons at that time, prohibits, inter
alia, the delivery of documents or copies sent by the Ministry to
a prisoner in reply to his/her inquiry. In such circumstances the
prisoner should be briefly informed, in writing, of the outcome of
his/her inquiry.
THE LAW
I. PRELIMINARY
REMARKS
- The
Court observes that the applicant's first letter to the Court was
dated 13 May 2004. However, the applicant's complaints regarding the
incidents above were raised for the first time in his application
form sent by post on 26 July 2004. The Court therefore considers that
the date of introduction of the application was 26 July 2004.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the refusal of the authorities to provide
him with a copy of the results of his medical examination infringed
his right to respect for his private life as provided in Article 8 of
the Convention, which, in so far as relevant, reads as follows:
“1. Everyone has the right to respect
for his private ... life,
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.”
A. Admissibility
- At
the outset, the Court considers that, although the respondent
Government have not raised any objection as to the Court's competence
ratione personae, this issue requires its consideration, since
the Court has to satisfy itself that it has jurisdiction in any case
brought before it, and it is therefore obliged to examine the
question of its jurisdiction at each stage of the proceedings (see,
Odièvre v. France [GC], no. 42326/98, § 22,
ECHR 2003-III, and Blečić v. Croatia [GC], no.
59532/00, § 67, ECHR 2006-...). In the instant case, the
Court observes that the applicant received the copy of the requested
documents on 21 January 2004 (see paragraph 8). However,
following the court's decision of 27 January 2004, they were
reclaimed by the authorities on 30 January 2004 (see paragraph 11).
The applicant therefore had the possibility to examine the impugned
documents for a limited period of time. However, in the Court's view,
this situation does not alter the fact that the applicant was
eventually refused a copy of these documents by a court decision and
therefore his victim status for the purposes of Article 34 of
the Convention is not open to doubt.
- Moreover,
the Court notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
B. Merits
1. The parties' submissions
- The
Government submitted that there had been no interference with the
applicant's right to receive information concerning him since he had
been provided with the documents he had requested, namely the copies
of the medical report of 25 March 2004 and the prescription issued on
that date by the Kastamonu State Hospital.
- The
applicant maintained his allegations. In particular, he submitted
that his complaint did not concern the medical reports issued by the
Kastamonu State Hospital but that concerning his examination by the
prison doctor on 14 January 2004. In this connection, the applicant
complained that, until his examination at the Kastamonu State
Hospital, he had had no knowledge regarding his medical condition
and, in the absence of such information, was prevented from seeking
further medical assistance. This situation had adverse effects on his
health.
2. The Court's assessment
- The
Court considers that personal information relating to a patient
undoubtedly belongs to his or her private life and, as such, the
question of that individual's access thereto falls within the ambit
of Article 8 (see, mutatis mutandis, I.
v. Finland, no. 20511/03, § 35,
17 July 2008). Indeed, this has not been
contested by the parties.
- The
Court reiterates that the essential object of
Article 8
is to protect the individual against arbitrary action by public
authorities. There may in addition be positive
obligations
inherent in ensuring effective “respect” for private or
family life. However, the boundaries between the State's
positive and negative obligations under this provision do not lend
themselves to precise definition. The applicable principles are
nonetheless similar. In both contexts regard must be had to the fair
balance that has to be struck between the competing interests of the
individual and of the community as a whole; in both contexts the
State enjoys a certain margin of appreciation (see Odièvre
c. France [GC], cited above, § 40).
- In
the instant case the Court does not consider it necessary to decide
whether it would be more appropriate to analyse the case as one
concerning a positive or a negative obligation since it is of the
view that the core issue in the present case is whether a fair
balance was struck between the competing public and private interests
involved.
- The
Court accepts that the applicant had an interest in obtaining a copy
of the report issued by the prison doctor following his visit, as
well as the relevant registry page regarding his admission to the
prison clinic so that he could be properly involved in the choice of
the medical care to be provided.
- The
Court observes that the applicant - a detainee - was refused a copy
of the doctor's report issued after his medical examination at the
prison clinic on 14 January 2004 and the relevant registry page
regarding his admission there. It appears that this decision was
taken on the basis of a practice - with reference to a Ministry of
Justice circular - whereby no copies of official prison documents
were to be given to detainees on grounds of security and public
order. The Government have not submitted any observations on the
legal basis and the manner in which this practice of restricting
access to documents to detainees/prisoners was applied so as to
enable the Court to weigh the relevant competing individual and
public interests, or assess the proportionality of the restriction at
issue. Nor have they submitted any particular justification for such
a measure.
- In
these circumstances and taking into account, particularly, the nature
of the documents requested by the applicant, the Court cannot find
any security or public order considerations that would justify
overriding the applicant's interest in having a copy of them.
- Having
regard to the above considerations, the Court is of the view that a
fair balance
was not
struck between the competing
general and individual interests. There has, accordingly, been a
violation of Article 8 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- In
the application form, the applicant further complained that the
refusal to give him information and documents regarding his health
constituted a breach of Article 2 of the Convention. In addition, the
applicant claimed under Article 13 of the Convention that the
recovery by the prison authorities of these documents from him, and
the non notification of the prosecutor's objection or the Assize
Court's decision to him, had hindered some of the applications he
would have made on the basis of those documents.
- Prior
to the application form, the applicant submitted letters, dated
7 June 2002, 13 May 2004, 31 May 2004 and 11 June 2004, briefly
complaining about various events relating to some criminal
proceedings. The applicant did not pursue these complaints in his
subsequent application.
- In the light of all the material in its possession,
the Court finds that the applicant's above submissions do not
disclose any
appearance
of a violation
of the rights
and freedoms set out in the Convention or its Protocols. It
follows that this part of the application must be declared
inadmissible as being manifestly ill-founded, pursuant to Article 35
§§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- 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.”
A. Damage
- The
applicant claimed a total of 3,000 euros (EUR) in respect of
pecuniary and non-pecuniary damages. He requested the reimbursement
of his medical expenses incurred due to the belated treatment he had
received.
- The
Government contested the amounts.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
- The
Court further considers that the finding of a violation of Article 8
of the Convention constitutes in itself sufficient just satisfaction
for the non pecuniary damage sustained by the applicant.
B. Costs and expenses
- The
applicant also claimed a total of 2,800 new Turkish liras
(approximately 1,457 EUR) for the costs and expenses incurred before
the Court. In support of his claim, the applicant submitted a fee
agreement concluded between him and his legal representative and
receipts of translation costs.
- The
Government contested the amount.
- 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 have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the documents in its possession and the above criteria, the Court
considers it reasonable to award the sum of EUR 1,300 for the
proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the alleged
interference with the applicant's right to respect for private life
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds that the finding of a violation of Article
8 in itself constitutes sufficient just satisfaction for the
non pecuniary damage sustained by the applicant;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,300 (one
thousand three hundred euros), plus any tax that may be chargeable to
the applicant, in respect of costs and expenses, to be converted into
the national 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 amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 20 January 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
