European Court of Human Rights

SECOND SECTION

CASE OF İNCEDERE AND ALTAY v. TÜRKİYE

(Applications nos. 58778/19 and 2 others - see appended list)

JUDGMENT
 

STRASBOURG

12 December 2023

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

In the case of İncedere and Altay 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 (nos. 58778/19, 58787/19 and 62966/19) 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") on the various dates indicated in the appended table by two Turkish nationals, Mr Suat İncedere ("the first applicant") and Mr Mehmet Aytunç Altay ("the second applicant") (together "the applicants"), who were detained in Edirne Prison and were represented by Ms Gülizar Tuncer, a lawyer practising in Istanbul;

the decision to give notice of the complaint concerning Article 10 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 21 November 2023,

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

SUBJECT MATTER OF THE CASE

1.  The applications concern the refusal of the administration of the prison in which the applicants were detained to hand over to them copies of several issues of a weekly newspaper which had been sent to them by post.

2.  At the material time the applicants were serving sentences of life imprisonment in the Edirne F-type Prison for attempting to change the constitutional order.

3.  By a decision of 14 December 2017, relying on section 62 (3) of the Law on the Execution of Sentences and Preventive Measures (Law no. 5275), section 8 (3) of the Regulation on materials and items which may be possessed in prisons and sections 11 (b) and 12 of the Directive on Prison Libraries and Bookcases, the Education Board of the Edirne Prison (the Board) decided not to deliver to the applicants issues 300 - 302 of the weekly newspaper "Atılım", which had been sent to them by post, but instead to withhold them. In addition, on the same legal basis, by a decision of 13 April 2018 the Board decided not to deliver to the first applicant issues 315 - 319 of the same newspaper, which again had been sent to him by post.

4.  The Board considered that certain pages of these issues contained articles which were not newsworthy but were in the nature of written and visual propaganda for an illegal terrorist organisation, glorifying crime and criminals, defending the actions of illegal terrorist organisations, and encouraging detainees and convicts in prison who were affiliated with the organisation to hold anti-state views. They further included statements aimed at building solidarity among the detainees and convicts in prison involving calls for resistance, insurrection and violence, encouraging readers to hatred, rebellion and violence and to join the organisation and contained comments supporting violence for separatist purposes. In that connection, the Board concluded that delivering those issues to the applicants could have led to indiscipline and endangered the security of the prison.

5.  The applicants took their objections to the above-mentioned decisions of the Board to the Edirne enforcement judge and subsequently to the Edirne Assize Court. The domestic courts dismissed their objections, holding that the Board's decisions were in line with law and procedure.

6.  In summary judgments, the Constitutional Court declared the individual applications lodged by the applicants inadmissible as manifestly ill-founded. Those judgments were notified to the first applicant on 22 April 2019 and to the second applicant on 22 May 2019.

THE COURT'S ASSESSMENT

1. JOINDER OF THE APPLICATIONS

7.  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 10 OF THE CONVENTION

8.  The applicants complained of a violation of their right to freedom of expression under Article 10 of the Convention on account of the Board's decisions not to hand over to them certain issues of the weekly newspaper "Atılım" which had been sent to them by post.

9.  The Government raised three inadmissibility objections alleging that the applicants had not suffered a significant disadvantage, that they did not have victim status and that their complaints were manifestly ill-founded. The Court observes that the Government raised similar objections in Mehmet Çiftci v. Turkey (no. 53208/19, §§ 20-23, 16 November 2021). The Court notes that it dismissed the Government's objections in relation to the significant disadvantage and victim status of the applicant in that case and considered that the arguments put forward as regards the objection that the application was manifestly ill-founded required an examination of the merits of the complaint under Article 10 of the Convention (ibid., §§ 25-26). The Courts sees no reason to depart from those findings in relation to the objections raised in the present applications.

10.  The Court therefore considers that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

11.  As to the merits of the applications, the Court notes that it examined a similar complaint in the leading case of Mehmet Çiftci (cited above,
§§ 32-46) and found a violation of Article 10 of the Convention because of the national courts' failure to provide sufficient reasons for their decisions which could convincingly establish the necessity of the interference with the applicant's right to freedom of expression.

12.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to depart from its conclusion in Mehmet Çiftci (cited above) in the present applications.

13.  There has accordingly been a violation of Article 10 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

14.  The applicants claimed 10,000 euros (EUR) each in respect of non-pecuniary damage. They further invited to the Court to award them an appropriate amount in respect of costs and expenses incurred before the Court, including the lawyer's fees. They did not submit any further explanation or any documents in this regard.

15.  The Government contested those claims.

16.  As regards non-pecuniary damage, noting that the applicants presented no evidence or argument that would make it possible to assess the damage they had allegedly suffered as a result of the measure at issue, the Court considers that, having regard to the circumstances of the present case, the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage alleged (see, mutatis mutandis, Murat Türk v. Turkey [Committee], no. 20686/19, § 19, 5 April 2022).

17.  The applicants' claims in respect of costs and expenses must be rejected, regard being had to the terms of Rule 60 § 2 of the Rules of Court and the applicants' failure to provide the Court with any documents in support of their 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 10 of the Convention;
4. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;
5. Dismisses the remainder of the applicants' claims for just satisfaction.

Done in English, and notified in writing on 12 December 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Dorothee von Arnim Egidijus Kūris
 Deputy Registrar President

APPENDIX

List of cases: