BOZOĞLU proti Turecku

SECOND SECTION

DECISION

Application no. 29055/19
Ömer BOZOĞLU
against Türkiye

The European Court of Human Rights (Second Section), sitting on 6 June 2023 as a Committee composed of:

Jovan Ilievski, President,
Lorraine Schembri Orland,
Diana Sârcu, judges,
and Dorothee von Arnim, Deputy Section Registrar,

Having regard to:

the application (no. 29055/19) 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 14 May 2019 by a Turkish national, Mr Ömer Bozoğlu (“the applicant”), who was born in 1980, lives in İzmir and was represented by Mr M. Çavdar, a lawyer practising in Istanbul;

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 the remainder of the application inadmissible;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the ban imposed on the applicant on sending and receiving letters while he was in prison.

1. Circumstances of the case

2. On 28 July 2016, during the state of emergency declared after the attempted military coup of 15 July 2016, the Ninth Division of the Istanbul Magistrate’s Court ordered the applicant’s pre-trial detention for membership of the FETÖ/PDY (an organisation described by the Turkish authorities as FETÖ/PDY – “Fetullahist Terror Organisation/Parallel State Structure”). On the same day he was placed in Silivri Prison.

3. On 30 November 2016 the Administration and Monitoring Board of Silivri Prison (“the Board”) decided not to pass on any letters, faxes or telegrams received from outside the prison to anyone placed in pre-trial detention for being member of the FETÖ/PDY and simultaneously not to send any post intended for the outside world during the state of emergency. In adopting its decision, the Board took into account a letter of 12 August 2016 from the Terror and Organised Crimes Bureau of the Istanbul Chief Public Prosecutor’s Office, who had notified the Board that in view of the investigation into the attempted coup of 15 July 2016 mounted by the members of the FETÖ/PDY, and on the basis of section 114 of the Law on the Execution of Sentences and Preventive Measures (Law no. 5275; see paragraph 8 below), it had decided to ban, for the duration of the state of emergency, the use of means of communication such as letters and faxes by those in pre-trial detention for membership of that organisation.

4. The Silivri enforcement judge dismissed the applicant’s objection against the Board’s decision, holding that it was in compliance with the law and procedure.

5. Upon the applicant’s objection, the Silivri Assize Court held that the enforcement judge should have dismissed the case on procedural grounds, as the court lacked jurisdiction to examine the public prosecutor’s decision on the merits. Nevertheless the Assize Court dismissed the applicant’s objection, finding that the outcome was in compliance with the law and procedure.

6. On 27 September 2017, at the end of the first hearing, the trial court released the applicant from pre-trial detention.

7. Following an application lodged by the applicant, in its decision of 14 January 2019 the Constitutional Court declared his complaint concerning his freedom of communication inadmissible on account of his failure to exhaust domestic remedies. Referring to its case-law in the cases of M.Y. (no. 2014/7149, 22 November 2017; see paragraph 11 below) and H.Ö. (no. 2017/34332, 12 December 2018; see paragraph 12 below), the Constitutional Court held that Article 141 § 3 of the Code of Criminal Procedure (see paragraph 9 below) provided for a compensatory remedy by virtue of which those who believed that they had sustained damage due to decisions and acts of prosecutors or judges could bring an action against the State. The Constitutional Court pointed out that the applicant had failed to make use of this remedy.

2. Relevant domestic law and practice
   1. Domestic law

8. Section 114(3) of the Law on the Execution of Sentences and Preventive Measures (Law no. 5275) provides:

“Detainees’ written correspondence and telephone calls may be restricted by the public prosecutor during the investigation stage or by the judge or the relevant court during the trial stage.”

9. Article 141 § 3 of the Code of Criminal Procedure (Law no. 5271) provides:

“Except in the cases mentioned in paragraph 1, proceedings for compensation may be brought only against the State in relation to acts or decisions of judges and public prosecutors, including for personal fault, in tort or in relation to other responsibilities during an investigation or a trial concerning a criminal offence.”

2. Relevant case-law

(a) Case-law of the Court of Cassation

10. The Government submitted eleven different judgments of the Court of Cassation, adopted on various dates between 2018 and 2021, all of which essentially held that claims for compensation in respect of decisions or acts of judges and public prosecutors could be brought against the State in the assize courts under Article 141 § 3 of the Code of Criminal Procedure. In particular, in a judgment of 8 March 2021 (E.2019/13827, K.2021/1802), the Twelfth Criminal Division of the Court of Cassation examined on appeal the relevant Regional Court of Justice’s decision granting the claimant 6,945 Turkish liras (TRY) in damages in respect of pecuniary damage and TRY 10,000 in damages in respect of non-pecuniary damage on account of his house arrest for a certain period of time despite the relevant decision for that judicial measure having already been revoked. The Twelfth Division upheld the decision, noting that although the judicial measure of house arrest was not explicitly provided for as grounds for compensation under Article 141 §§ 1 and 2 of the Code of Criminal Procedure, those who believed that they had sustained damage as a result of the decisions or acts of prosecutors or judges could claim compensation from the State under paragraph 3 of the same Article.

(b) Case-law of the Constitutional Court

11. In its judgment in the case of M.Y. (application no. 2014/7149, 22 November 2017), the Constitutional Court examined the applicant’s complaint that his right to respect for his private life had been infringed on the grounds that in the context of an investigation, in which he held the status of victim, the prosecutor had included certain degrading allegations as to his private life in the indictment. The Constitutional Court declared his application inadmissible for failure to bring proceedings for compensation under Article 141 § 3 of the Code of Criminal Procedure. The Constitutional Court held that where a violation of the applicant’s right to respect for his private life had been found as a result of the action or decision of public prosecutors, the relevant court could award compensation under Article 141 § 3 of the Code of Criminal Procedure. While adopting its decision, the Constitutional Court took note of the Court of Cassation’s judgment of 11 November 2015 (E.2015/13049, K.2015/17584), which concerned a request for compensation under Article 141 § 3 initiated by a third party who, as a victim, was also party to the same proceedings as M.Y. The Court of Cassation held in that judgment that the prosecutors and judges were under an obligation to show diligence in their work to avoid acts damaging respect for a person’s private life, reputation and honour. In its conclusion the Court of Cassation noted that the inclusion of the claimant’s profiling records in the indictment without any prior assessment as to their content and necessity in relation to the proper conduct of proceedings called for compensation under Article 141 § 3 of the Code of Criminal Procedure.

12. In its judgment in the case of H.Ö. (application no. 2017/34332, 12 December 2018), the Constitutional Court examined a complaint of an alleged violation of the right to freedom of communication on account of the ban on the use of any means of written communication, such as letters and faxes, in the detention facility where the applicant was being held as a detainee for being a member of the FETÖ/PDY. The ban had been ordered by the prosecutor within the context of an investigation and on the basis of section 114(3) of Law no. 5275. The Constitutional Court declared the applicant’s complaint inadmissible on account of his failure to avail himself of the remedy of bringing proceedings for compensation under Article 141 § 3 of the Code of Criminal Procedure. In its reasoning the Constitutional Court held that in cases where the alleged interference with the right to communication had ceased, as in the case at hand, since a revocation of the measure would no longer be possible, compensatory remedies capable of providing redress for the damage sustained would be sufficient. Accordingly, the Constitutional Court noted that Article 141 § 3 of the Code of Criminal Procedure provided for a compensatory remedy that could be brought against the State on account of acts or decisions of judges and public prosecutors, including for personal fault, in tort or in relation to other responsibilities during an investigation or trial concerning a criminal offence.

THE COURT’S ASSESSMENT

13. The applicant complained that the ban on his being able to send and receive letters, faxes and telegrams in prison had violated his right to respect for his private and family life under Article 8 of the Convention.

14. The Government submitted that the applicant had not exhausted domestic remedies on account of his failure to make use of the compensatory remedy provided for in Article 141 § 3 of the Code of Criminal Procedure. The Government noted that the measure restricting the applicant’s written correspondence was based on the decision of the public prosecutor and that, as established by the case-law of the Constitutional Court and the Court of Cassation, that Article provided for a mechanism for victims who complained of damage on account of acts of public prosecutors.

15. The applicant contested the Government’s objection. He argued that it had been the Board which had decided on the ban on the means of communication in prison, not the public prosecutor. The applicant asserted that he had exhausted domestic remedies by lodging an objection with the enforcement judge and with the assize court. According to him, he had not been required to use another remedy which essentially served the same purpose.

16. The general principles concerning the exhaustion of domestic remedies have been summarised in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).

17. The Court observes in the present case that the Constitutional Court dismissed the applicant’s complaint for failing to avail himself of the compensatory remedy under Article 141 § 3 of the Code of Criminal Procedure. In reaching its conclusion, the Constitutional Court referred to its judgments in the cases of M.Y. and H.Ö. (see paragraphs 11 and 12 above), in which it had established that the action for compensation under Article 141 § 3 of that Code constituted an effective and sufficient remedy once the restriction on the right in question had come to an end.

18. The Court observes at the outset that the very wording of Article 141 § 3 of the Code of Criminal Procedure, in which a remedy is provided for, expressly refers to the assumption of responsibility by the State for damage sustained as a result of a prosecutor’s decision. In the instant case, the Court notes that when adopting their decisions, all domestic authorities emphasised that the ban on the applicant’s correspondence had been ordered by the public prosecutor on the basis of section 114(3) of Law no. 5275.

19. As to the question of the availability of this remedy in practice, the Court notes that the applicant did not raise any doubts as to whether the remedy was accessible, was capable of providing redress and offered reasonable prospects of success. He submitted, however, that he had not been required to use another remedy which had essentially the same purpose as raising his objection against the decision of the Board before the enforcement judge. Nevertheless, the Court observes that the remedies in question did not have the same purpose; while the objection before the enforcement judge was aimed at lifting the existing restriction on the right to correspondence, the action for compensation under Article 141 § 3 of the Code of Criminal Procedure provides for the possibility of redress by way of compensation for the damage sustained as a result of the decision of a prosecutor.

20. The Court takes note of the applicant’s argument that the case-law of the domestic courts provided by the Government concerned cases which were not identical to his own. It accepts that the case-law relating to the application of Article 141 § 3 of the Code of Criminal Procedure is not extensive. It reiterates, however, that the existence of mere doubts as to the prospects of success of a particular remedy cannot dispense an applicant from making use of that remedy (see Vučković and Others, cited above, §§ 74 and 84). In this connection, the Court notes that the Court of Cassation established on different occasions that those who believed they had sustained damage as a result of the decision of prosecutors and judges could bring an action against the State under Article 141 § 3 even if the subject of the case did not concern the grounds for compensation listed in Article 141 §§ 1 and 2. As such, the Court is of the opinion that there is nothing to indicate that the review carried out by the domestic courts in connection with the above-mentioned remedy would be limited in any way. In the light of the above-mentioned case-law of the domestic courts, the Court considers that the remedy in question is capable of leading to an acknowledgment of the alleged violation and an award of compensation (see, mutatis mutandis, Harizanov v. Bulgaria (dec.), no. 53626/14, §§ 93-97, 5 December 2017). The Court sees no reason to doubt the effectiveness of this remedy or to find that it was clearly doomed to fail (see, mutatis mutandis, Mustafa Avci v. Turkey, no. 39322/12, § 64, 23 May 2017).

21. The Court notes that the ban on the applicant’s right to use any written means of communication de facto came to an end on 27 September 2017 when he was released from detention, not too long after he had lodged his application with the Constitutional Court on 25 April 2017 and before he lodged the present application with this Court. Despite the change in his personal situation and the possibility of his obtaining compensation, the applicant did not avail himself of the remedy under Article 141 § 3 of the Code of Criminal Procedure. Therefore, the Court is of the opinion that the applicant did not do everything that could reasonably be expected of him to exhaust domestic remedies (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 116, ECHR 2007‑IV).

22. The Court points out, however, that this conclusion in no way prejudices any subsequent review of the question of the effectiveness of the remedy concerned, and in particular of the domestic courts’ ability to develop a uniform, Convention-compliant approach to the application of Article 141 § 3 (compare also Mehmet Hasan Altan v. Turkey, no. 13237/17, § 102, 20 March 2018).

23. In view of the foregoing, the Court allows the Government’s objection and rejects the application on grounds of failure to exhaust domestic remedies, pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 29 June 2023.

Dorothee von Arnim Jovan Ilievski
Deputy Registrar President