Hamza GULER and 49 other applications v Turkey - 14377/05 [2011] ECHR 277 (25 January 2011)

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European Court of Human Rights

You are here: BAILII >> Databases >> European Court of Human Rights >> Hamza GULER and 49 other applications v Turkey - 14377/05 [2011] ECHR 277 (25 January 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/277.html
Cite as: [2011] ECHR 277

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SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14377/05 by Hamza GÜLER and 49 other applications
against Turkey

The European Court of Human Rights (Second Section), sitting on 25 January 2011 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Danutė Jočienė,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş,
Kristina Pardalos, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

Having regard to the above applications introduced on the dates indicated in the appendix,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by some of the applicants,

Having deliberated, decides as follows:

THE FACTS

The applicants are Turkish nationals^¹ and at the time of their applications were either serving prison sentences or being held in detention pending trial in various establishments. The names and dates of birth of the applicants, as well as the names of their representatives, appear in the appendix.

A. The circumstances of the case

The facts of the cases, as submitted by the applicants, may be summarised as follows.

The applicants were found guilty of breaching prison order by decisions of the respective prison disciplinary boards (“the board”). Pursuant to the Regulations on the administration of penitentiary institutions and the execution of sentences, they were all sentenced to various types of disciplinary sanctions. Their appeal requests were rejected by the Enforcement Judges and the Assize Courts respectively, on the basis of the case file, without hearing the applicants or their lawyers, pursuant to Law no. 4675 on Enforcement Judges, dated 16 May 2001.

The details of the applications as well as the complaints raised by the applicants appear in the table below.

Application no. and case name	Disciplinary breach committed	Type of sanction imposed on the applicant	Date of Board’s decision	Date of final decision delivered by the Assize Court	Intro-duction date of the application	Complaints raised by the applicant
14377/05 Güler v. Turkey	breaching prison order by disturbing other inmates in the prison	ban on receiving visitors for 1 month	31/08/2004	4/10/2004	05/04/2005	Articles 3, 6 and 8
14530/05 Gümüş v. Turkey	pressing emergency buttons in the cell and refusing to participate in social activities, vocational workshops in the prison	ban on correspondence for 15 days	29/12/2004	26/01/2005	18/02/2005	Article 6
36458/06 Tanış v. Turkey	supporting fellow prisoners on hunger strike	ban on correspondence and communication for 3 months	17/02/2006	23/3/2006	03/08/2006	Article 8
11493/07 Danış v. Turkey (no. 4)	writing petition to the public prosecutor in support of Öcalan	ban on receiving visitors for 1 month	05/10/2006	13/12/ 2006	08/02/2007	Articles 1, 3, 6, 7, 10, 13 and 14
14393/07 Çelebi v. Turkey (no. 3)	writing petition to the public prosecutor in support of Öcalan	ban on correspondence and communication for 1 month	05/10/2006	13/12/2006	08/02/2007	Articles 1, 3, 6, 7, 8, 10, 13 and 14
51629/07 Özbil v. Turkey (no.2)	a) banging on the doors of the cells and chanting slogans b) writing petition to the Ministry of Justice and public prosecutor, concerning unfounded allegations against the prison staff	a) ban on correspondence for 1 month b) ban on certain activities for 45 days	a) 25/05/2007 b) 03/09/2007	a) 03/07/2007 b) 09/10/2007	a) 02/11/2007 b) 02/11/2007	Articles 6, 8, 10 and 13
15614/08 Maho v. Turkey (No.1)	writing petition to the Ministry of Justice to protest against the detention conditions of Öcalan	ban on correspondence for 1 month	13/12/2007	15/01/2008	12/03/2008	Article 8
39323/08 Şorli v. Turkey	launching a hunger strike to protest against the detention conditions of Öcalan	ban on certain activities for 3 months	31/03/2008	27/05/2008	23/07/2008	Articles 6, 8, 9, 10 and 13
39406/08 Koçuk v. Turkey	launching a hunger strike	ban on correspondence and communication for 1 month	06/12/2007	29/01/2008	28/07/2008	Articles 6 and 13
39446/08 Taç v. Turkey	launching a hunger strike and writing petition to the Ministry of Justice in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed	11 days’ cellular confinement	14/12/2007	31/01/2008	28/07/2008	Articles 6 and 13
42109/08 Uçar and others v. Turkey	launching a hunger strike to protest against the detention conditions of Öcalan	deprivation of any paid work for 3 months	28/11/2007	14/02/2008	13/08/2008	Articles 6 and 13
42597/08 Kortak and Öztürk v. Turkey	writing petition to the CPT in which they praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed	13 days’ cellular confinement	25/12/2007	31/01/2008	29/07/2008	Articles 6, 8, 9, 10, 13, 17 and 18
43047/08 Kızıldemir and Taç v. Turkey	launching a hunger strike	ban on correspondence and communication for 45 days	15/01/2008	29/02/2008	29/08/2008	Articles 6, 8, 13 and 14
43600/08 Karakoç v. Turkey	writing petition to the Ministry of Justice in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed	13 days’ cellular confinement	14/01/2008	25/02/2008	25/08/2008	Articles 6, 8, 9, 10, 13 and 14
43872/08 Doğan and Ulusan v. Turkey	launching a hunger strike and writing petition to the Ministry of Justice in which they praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed	13 days’ cellular confinement	28/12/2007	25/02/2008	25/08/2008	Articles 6, 8, 9, 10, 13 and 14
44646/08 Çetin v. Turkey (no.12)	launching a hunger strike	ban on receiving visitors for 15 days	31/05/2005	01/07/2005	09/11/2005	Articles 6 and 8
44647/08 Çetin v. Turkey (no.13)	launching a hunger strike	ban on prison workshops and sports activities for 1 month	20/02/2006	03/04/2006	19/06/2006	Article 6
44648/08 Çetin v. Turkey (no.14)	chanting slogans	ban on correspondence for 1 month	01/03/2006	03/04/2006	15/06/2006	Article 8
44649/08 Çetin v. Turkey (no.15)	writing petition to the prison administration protesting the detention conditions	ban on correspondence for 1 month	15/03/2006	27/04/2006	22/06/2006	Articles 6 and 8
44650/08 Çetin v. Turkey (no.16)	launching a hunger strike	ban on prison workshops and sports activities for 1 month	24/03/2006	27/04/2006	26/06/2006	Article 6
44651/08 Çetin v. Turkey (no.17)	writing petition to the public prosecutor in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed	ban on prison workshops and sports activities for 45 days	09/05/2006	08/06/2006	19/07/2006	Article 6
47204/08 Bozçalı v. Turkey (no.3)	writing petition to the Ministry of Justice in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed	ban on certain activities for 3 months	05/06/2008	25/07/2008	15/09/2008	Articles 1, 3, 6, 7 and 8
51490/08 Rüzgar v. Turkey	launching a hunger strike and writing petition to the Ministry of Justice in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed	13 days’ cellular confinement	26/02/2008	09/04/2008	08/10/2008	Articles 6, 8, 9, 10, 13 and 14
53325/08 Sarı v. Turkey (no.2)	launching a hunger strike and writing petition to the Ministry of Justice in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed	ban on certain activities for 3 months	05/06/2008	11/07/2008	21/10/2008	Articles 9, 10 and 14
53414/08 Kartal v. Turkey	writing petition to the CPT in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed	11 days’ cellular confinement	25/12/2007	04/03/2008	03/09/2008	Articles 6, 8, 9, 10, 13, 17 and 18
53417/08 Kılınç and others v. Turkey	a) R. Kortak launching a hunger strike and writing petition to the Ministry of Justice in which they praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed b) N. Adanmış launching a hunger strike c) C. Cengiz, H. Yünaçtı, M. Ulusan, Ö. Bitirgeç, D. Kılınç, F. Taç, A. Kaçmaz, R. Kortak launching a hunger strike and writing petition to the Ministry of Justice in which they praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed	a) 15 days’ cellular confinement b) ban on correspondence and communication for 50 days c) 15 days’ cellular confinement	a) 17/03/2008 b) 17/03/2008 c) 05/06/2008	a) 23/04/2008 b) 13/05/2008 c) 28/08/2008	a) 22/10/2008 b) 22/10/2008 c) 22/10/2008	Articles 6, 8, 9, 10, 13, 17 and 18
60918/08 Özen v. Turkey (no.9)	launching a hunger strike and writing petition to the Ministry of Justice in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed	ban on certain activities for 3 months	05/06/2008	25/07/2008	24/11/2008	Articles 6, 7, 9, 10, 13
4353/09 Ersayan v. Turkey (no.1)	launching a hunger strike to protest against the detention conditions of Öcalan	ban on certain activities for 2 months	20/05/2008	14/10/2008	09/01/2009	Articles 6, 8, 9, 10 and 13
6887/09 Koyuncu (no.9)	launching a hunger strike	ban on certain activities for 2 months	13/10/2008	28/11/2008	22/01/2009	Articles 6, 7 and 9
10088/09 Yiğit v. Turkey (no.9)	a) launching a hunger strike b) launching a hunger strike	a) ban on correspondence and communication for 1 month b) ban on correspondence and communication for 2 months	a) 22/09/2008 b) 30/10/2008	a) 31/10/2008 b) 12/11/2008	b) 20/01/2009 b) 20/01/2009	Article 10
10867/09 Taşdemir v. Turkey (no.2)	chanting slogans	ban on correspondence and communication for 1 month	06/11/2008	24/12/2008	09/02/2009	Articles 6, 9 and 10
13784/09 Kızıldağ and others v. Turkey	chanting slogans	ban on correspondence and communication for 1 month	06/11/2008	24/12/2008	13/02/2009	Articles 6, 9 and 10
14980/09 Tekin v. Turkey	chanting slogans	ban on correspondence and communication for 1 month	06/11/2008	24/12/2008	20/02/2009	Articles 6, 9 and 10
16412/09 Dünder v. Turkey (no.2)	a) launching a hunger strike b) launching a hunger strike	a) ban on prison workshops and sports activities for 2 months b) ban on correspondence and communication for 45 days	a) 22/09/2008 b) 17/10/2008	a) 27/10/2008 b) 31/10/2008	a) 10/02/2009 b) 10/02/2009	Articles 6, 7 and 10
16930/09 Osman v. Turkey (no.2)	chanting slogans	ban on correspondence and communication for 1 month	06/11/2008	24/12/2008	12/02/2009	Articles 6, 9 and 10
16932/09 Bahadır v. Turkey (no.3)	chanting slogans	ban on correspondence and communication for 1 month	06/11/2008	24/12/2008	12/02/2009	Articles 6, 9 and 10
17113/09 Yeşilmen and Others v. Turkey (no.1)	a) S. Yeşilmen supporting fellow prisoners on hunger strike b) E. Baysal launching a hunger strike c) C. Yaşar launching a hunger strike	a) ban on certain activities for 2 months b) ban on certain activities for 3 months c) deprivation of any paid work for 3 months	a) 12/06/2008 b) 12/06/2008 c) 12/06/2008	a) 19/09/2008 b) 19/09/2008 c) 19/09/2008	a) 19/03/2009 b) 19/03/2009 c) 19/03/2009	Articles 6, 8, 10, 13 and 14
19769/09 Şorli and Others	launching a hunger strike	For the applicant R. Öz: ban on certain activities for 3 months For the applicants M. Şorli, M. Aladağ and M. Uğur: deprivation of any paid work for 3 months	12/06/2008	19/09/2008	21/01/2009	Articles 6, 8, 9, 10, 13
20911/09 Gedik v. Turkey (no.15)	insulting the prison authorities and prison guards	ban on correspondence and communication for 1 month	02/01/2009	10/02/2009	23/02/2009	Articles 6, 7, 8, 9, 10 and 14
22673/09 Tuncer v. Turkey	launching a hunger strike	ban on correspondence and communication for 1 month	24/12/2008	07/03/2009	23/03/2009	Articles 3, 6, 7, 8, 9, 10, 13, 17 and 18
22689/09 Ersayan v. Turkey (no.2)	a) launching a hunger strike b) writing petition to the public prosecutor in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed	a) ban on certain activities for 2 months b) 11 days’ cellular confinement	a) 26/06/2008 b) 17/07/2008	a) 14/10/2008 b) 21/11/2008	a) 11/04/2009 b) 11/04/2009	Articles 6, 8, 9, 10, 13
23560/09 Yaman v. Turkey	avoiding telephone calls to protest against the prison administration	ban on receiving visitors for 2 months	20/06/2008	08/10/2008	08/04/2009	Articles 6, 7, 10, 13, 14, 17 and 18
24109/09 Taşar v. Turkey (no.2)	chanting slogans	ban on correspondence and communication for 1 month	06/11/2008	24/12/2008	13/02/2009	Articles 6, 9 and 10
24115/09 Mustafa v. Turkey (no.2)	chanting slogans	ban on correspondence and communication for 1 month	06/11/2008	24/12/2008	13/02/2009	Articles 6, 9 and 10
24117/09 Kudat v. Turkey (no.2)	chanting slogans	ban on correspondence and communication for 1 month	06/11/2008	24/12/2008	13/02/2009	Articles 6, 9 and 10
25034/09 Tekmenüray v. Turkey (no.12)	Illegal correspondence	Ban on prison workshops and sports activities for 1 month	14/01/2009	12/02/2009	11/03/2009	Articles 8 and 10
25650/09 İnan v. Turkey	chanting slogans	ban on correspondence and communication for 2 months	18/08/2008	21/10/2008	16/12/2008	Articles 6, 8 and 13
25659/09 Yıldırım v. Turkey	chanting slogans	ban on correspondence and communication for 2 months	18/08/2008	21/10/2008	16/12/2008	Articles 6, 8 and 13
25667/09 Karaaslan v. Turkey (no.3)	launching a hunger strike and writing petition to the Ministry of Justice in which he praised the imprisoned leader of the PKK, by using the honorific “sayın”, meaning esteemed	11days’ cellular confinement	01/02/2008	05/03/2008	14/05/2008	Articles 6, 7, 9, 10 and 13
25952/09 Taşgir And Others v. Turkey	launching a hunger strike	ban on correspondence and communication for 2 months	17/09/2008	30/10/2008	21/04/2009	Articles 6, 8, 13 and 14

B. Relevant domestic law and practice

A description of the relevant domestic law may be found in Gülmez v. Turkey (no. 16330/02, §§ 13-15, 20 May 2008) and Aydemir and Others ((dec.), nos. 9097/05, 9491/05, 9498/05, 9500/05, 9505/05 and 9509/05, 9 November 2010).

THE LAW

Given the similarity of the applications, as regards both fact and law, the Court deems it appropriate to join them.

The applicants mainly argued that they did not have a fair hearing during the disciplinary proceedings in question as the domestic courts had delivered their decisions on the basis of the case files and that they had been deprived of their right to defend themselves in person or through the assistance of a lawyer. In this respect, most of the applicants relied on Article 6 of the Convention. The remaining applicants based on the same facts and raising the same complaint, merely cited Articles 2, 3, 5, 7, 9, 13, 14, 17 and 18. The Court notes that although the applicants referred to different Articles of the Convention, they all complained about the unfairness of the disciplinary proceedings in dispute. It will thus examine these complaints under Article 6 of the Convention.

Furthermore, some of the applicants (as indicated in the table above), alleged a violation of Article 8 in respect of the ban on their right to correspondence and/or visiting rights, or a violation of Article 10, stating that the disciplinary sanctions imposed on them had violated their right to freedom of expression.

The Court notes that by Law no. 6008 of 22 July 2010, Section 6 of the Law on Enforcement Judges was amended so as to allow prisoners charged with disciplinary offences to defend themselves in person or through legal assistance. It further observes that the new law also provides a remedy for all those prisoners who had previously been charged with disciplinary offences to file a fresh objection with the Enforcement Judge concerning their previous sentences within six months following the adoption of this law. Such requests would be examined by the Enforcement Judge in the light of the new procedure.

The Court has already examined that remedy and found it effective in respect of complaints for applications concerning prison disciplinary sanctions. In particular, it considered that the new remedy was accessible and provided reasonable prospects of success (see Aydemir and Others, cited above). In assessing the effectiveness of the new remedy, the Court had regard to sample decisions submitted by the Government, according to which upon fresh objections, the Enforcement Judges had re-evaluated the evidence in the case file and annulled the disciplinary sanctions in dispute, clearing the respective prisoners of all consequences of the offence.

Considering that there are no exceptional circumstances capable of exempting the present applicants from the obligation to exhaust domestic remedies, the Court concludes that they should have avail themselves of the new remedy offered by Law no. 6008 of 22 July 2010.

Therefore, the applications must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court unanimously

Decides to join the applications;

Declares the applications inadmissible.

Françoise Elens-Passos Françoise Tulkens
Deputy Registrar President

APPENDIX

Application No.	Name of Applicant	Date of Birth
14377/05	Hamza Güler	1974
14530/05	Şahin Gümüş	1973
36458/06	Mehmet Nuri Tanış	1975
11493/07	Mehmet Veysi Danış	1976
14393/07	Mehmet Nur Çelebi	1974
51629/07	Sami Özbil	1977
15614/08	Tevfik Maho	1968
39323/08	Muhammed Şorli	1987
39406/08	Alaheddin Koçuk	1987
39446/08	Faik Taç	1972
42109/08	a) Abdülkadir Uçar b) Abdullah Günay c) Cengiz Atsız d) Fesih Nardan	1983 1979 1982 1964
42597/08	a) Remazan Kortak b) Nevzat Öztürk	1966 1966
43047/08	a) Tahir Kızıldemir b) Faik Taç	1971 1972
43600/08	Fikret Karakoç	1975
43872/08	a) Tuncay Doğan b) Mahmut Ulusan	1970 1970
44646/08	Fermani Çetin	1972
44647/08	Fermani Çetin	1972
44648/08	Fermani Çetin	1972
44649/08	Fermani Çetin	1972
44650/08	Fermani Çetin	1972
44651/08	Fermani Çetin	1972
47204/08	Mehmet Şirin Bozçalı	1966
51490/08	Abdullah Rüzgar	1969
53325/08	Hüseyin Sarı	1958
53414/08	Sedat Kartal	1989
53417/08	a) Derviş Kılınç b) Hamza Yünaçtı c) Abdülcelil Kaçmaz d) Cafer Cengiz e) Nurettin Adanmış f) Faik Taç g) Remazan Kortak h) Mahmut Ulusan i) Önder Bitirgiç j) Tuncay Doğan	1967 1976 1967 1956 1971 1972 1966 1970 1984 1970
60918/08	Mehmet Nuri Özen	1976
4353/09	Halis Ersayan	1989
6887/09	Turgut Koyuncu	1974
10088/09	Kemal Yiğit	1982
10867/09	Mehmet Şirin Taşdemir	1969
13784/09	a) Ramazan Kızıldağ b) Abdullah Çelik c) Hikmet Kara d) Barış Kılıç	1974 1972 1970 1976
14980/09	Cemal Tekin	1968
16412/09	Barış Dünder	1986
16930/09	Abdulmenaf Osman	1965
16932/09	Nevzat Bahadır	1978
17113/09	a)Şabeddin Yeşilmen b) Enver Baysal c) Cahit Yaşar	1971 1975 1979
19769/09	a) Muhammed Şorli b) Mehmet Aladağ c) Medeni Uğur d) Resul Öz	1987 1974 1988 1987
20911/09	Soncan Gedik	1967
22673/09	Mete Tuncer	1969
22689/09	Halis Ersayan	1989
23560/09	Mahmut Yaman	1974
24109/09	İsmail Taşar	1976
24115/09	Ahmet Mustafa	1975
24117/09	Aydın Kudat	1969
25034/09	Mehmet Şirin Tekmenüray	1970
25650/09	Barış İnan	1973
25659/09	Süleyman Yıldırım	1987
25667/09	Kenan Karaaslan	1966
25952/09	a) Zeynep Taşgir b) Azime Işık c) Aslı Doğan d) Sibel Kurt	1985 1977 1979 1984

11. With the exception of Mr Maho, who is a Syrian citizen.

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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Hamza GULER and 49 other applications v Turkey - 14377/05 [2011] ECHR 277 (25 January 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/277.html Cite as: [2011] ECHR 277