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Individual Application Türkçe

(Mehmet Koray Eryaşa, B. No: 2013/6693, 16/4/2015, § …)
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REPUBLIC OF TURKEY

CONSTITUTIONAL COURT

 

SECOND SECTION

 

JUDGMENT

 

MEHMET KORAY ERYAŞA

(Application no. 2013/6693)

 

 

 

 

SECOND SECTION

JUDGMENT

 

President

:

Alparslan ALTAN

Justices

:

Recep KÖMÜRCÜ

 

 

Engin YILDIRIM

 

 

Celal Mümtaz AKINCI

 

 

Muammer TOPAL

Rapporteur

:

Murat ŞEN

Applicant

:

Mehmet Koray ERYAŞA

 

I. SUBJECT-MATTER OF THE APPLICATION

1.         Alleging that his rights to a fair trial, respect to private life and freedom of communication have been violated when his time with visiting family and counsel was restricted and monitored, and his access to Internet, which he deemed necessary in order to prepare his defense, was restricted at the Military Prison where he was detained, the applicant requested the revocation of the articles concerned in the regulation where such issues have been provided for, and compensation.

II. APPLICATION PROCESS

2.         The application was lodged on 22/8/2013 with the 13th Civil Court of First Instance of Istanbul. The deficiencies detected as a result of the preliminary administrative examination of the petition and its annexes were made to be completed and it was determined that no deficiency preventing their submission to the Commission existed.

3.         The Commissions Rapporteur-in-Chief ruled for the administrative rejection of the individual application on 30/1/2014, on grounds that the shortcomings identified were not remedied in due granted time.

4.         The applicant's objection to the administrative rejection decision was admitted by the Second Commission of the Second Section on 17/9/2014 and it was decided that the examination of the admissibility of the application be conducted by the Section and the file be sent to the Section.

5.         It was decided by the President of the Section on 30/10/2014 that the examinations for admissibility and merits of the application be jointly carried out and a copy be sent to the Ministry of Justice (Ministry) for its opinion.

6.         The facts which are the subject matter of the application were notified to the Ministry on 30/10/2014. The Ministry submitted its opinion to the Constitutional Court on 30/12/2014 at the end of the additional period that was granted.

7.      The opinion of the Ministry was notified to the applicant on 17/1/2015. The applicant submitted to the Constitutional Court his counter-opinion on 27/1/2015.

III. THE FACTS

A.    The Circumstances of the Case

8.      As expressed in the application form and the annexes thereof and the opinion of the Ministry, the circumstances of the case are summarized as follows:

9.      Pursuant to the allegation that he committed the crimes of overthrowing the government by force and preventing the performance of the duties thereof as per the (annulled) Article 147 of the Turkish Criminal Code No. 765 of 1/3/1926, the applicant was under de jure detention on the date of the application at the Special Military Prison and Detention House of the 3rd Army Corps.

10.  The applicant petitioned the 3rd Army Corps Command (the Command) for the allowance of a phone call to his counsel concerning the ongoing trial process regarding himself. In the petitioned request, it was acknowledged that it was not possible for the said counsel to frequently come for he was located in İzmir, hence the importance of phone conversations with him/her.

11.  The command, in the letter of response, indicated that the office of the legal advisor had specified the issues below in its examination of the matter:

"In the examination that was carried out, it was seen that a phone call to the counsel was not arranged for although the Law No. 5275 on the Execution of the Penal and Security Measures provides for the interception and recording of the phone calls between the detainee and the relatives thereof, which is interpreted as an intentional silence of the legislator on this matter. As a requirement of the rule that the counsel-client conversations cannot be tapped into, nor be recorded, it is seen that the Law does not grant any rights regarding a phone call between the counsel and the client.

As the Presidency of the Third Chamber of the High Military Administrative Court indicated in its ruling (File No. E.2011/821, K.2011/472  of 27/1/2011), as long as a regulation concerning the detainee's phone conversation with his counsel is non-existent in line with the provisions of the Regulation on the Management of Military Prisons and Detention Facilities and the Execution of Penalties as well as in line with those of the Law No. 5275 and the By-Law on the Execution of Penalties and Security Measures, it is considered that there is no contrariety to the law in not allowing a phone call with his counsel to the petitioner for such a right is not granted. 

12.  With his petition of 30/1/2012, the applicant informed the Command that his right to receive visitors was restricted, and requested that the visits are freed from limited duration, turned into open visits and furthermore the restrictions on the number of visitors, the duration and days of phone calls as well as the limitations on access to Internet be removed and that he was given the opportunity to write his defense.

13.  The said request was dismissed by the Executive Officer as per Article 70 of the Regulation on the Management of Military Prisons and Detention Facilities and the Execution of Penalties (Regulation).

14.  With his petition on 31/8/2012, the applicant requested a phone call with his counsel regarding the ongoing trial and a news piece in a newspaper. This request was also dismissed by the Executive Officer as per Article 66/A of the Regulation.

15.  Upon such rejection of his requests, the applicant lodged a case with the High Military Administrative Court with a request for the annulment of the rejection rulings of the Command and the Executive Officer, and Articles 66/A and 70 of the said Regulation.

16.  The court, with its judgment No. E.2013/177, K.2013/1006 of 11/7/2013, ruled for the dismissal of the request for revocation.  The relevant part of the reasoning of the court is as follows:

“… the format of the meeting of the convict with the counsel has been provided in Article 59 of Law No. 5275; in Article 66, the coverage of the right to telephone call and in Article 83, the principles of visiting the convict have been specified. In Article 114 of the Law No. 5275, the rights of the detainee have been listed and in Article 116, it has been specified that those which purport a quality of compliance with the detention status can also be applied for the detainees. The right to meet with the counsel has been granted in Article 59 of the Law No. 5275, without mentioning the right to a telephone call with the counsel, and the right to call the counsel has not been regulated in Article 66 where the right to a telephone call has been regulated. The administration was allowed to regulate the day and the hour of the telephone call with a consideration for the number of telephones available at the facility and the order of applications for a call as well as the security of the facility. No limitations whatsoever shall apply for the face-to-face meeting of the detainee and the counsel. The detainee can meet his/her counsel anytime. There are no limitations on the detainee's communication with his/her counsel apart from the phone call, and no limitations shall be imposed to this effect. The detainee can request from the management of the penitentiary that his/her counsel is informed so that a face-to-face meeting with him/her can be arranged for so that s/he can prepare his/her defense. Management is also required to satisfy such a request. The claimant requests that telephone call with his counsel be allowed anytime he so wishes without being bound by any restrictions whatsoever. Meetings with the counsel cannot be tapped, nor be recorded and no limitations on meeting with the counsel within the scope of defense can be imposed. It is, for this reason that meeting with the counsel has not been regulated by the lawmaker. The absence of an authority not allowed by Law from the administrative regulation is legal. In Article 83 of the Law No. 5275 are provisions concerning issues such as a visit by blood relatives up to the third degree and of relatives by marriage and visits by a maximum of three non-relatives. Furthermore, principles of the convicts' use of Internet have been specified in article 67/3 of the Law No. 5275, providing that Internet can also be availed of, under supervision, if required by education and rehabilitation programs where in this Article are no further regulations concerning the use of the Internet apart from education and rehabilitation programs. Regulations similar to those in Law No. 5275 have also been included in the By-Law on the Management of Penal Institutions and the Execution of Sentences and Security Measures. All limitations and restrictions have been introduced by Law. Therefore, the regulations of the Regulation on the Management of Military Prisons and Detention Facilities and the Execution of Penalties, the revocation of which are being requested, are not considered as being contrary to higher norms, nor the limitations on the use of Internet and meetings with visitors and phone calls are seen to contradict the law."

17.  The judgment was notified to the applicant on 26/7/2013.

18.  The applicant lodged an individual application on 22/8/2013.

19.  At the end of the individual application of the applicant concerning the file in relation to his detainment de jure, and upon the judgment of the Constitutional Court No. 2013/7800 of 18/6/2014, the Ministry stated that the right of the applicant to a fair trial as guaranteed in Article 36 of the Constitution was violated and that a judgment for a re-trial was delivered so as to remedy such violation. Then, in line with the additional judgment (File No: E.2010/427, K.2012/427 of 19/6/2014) of the 4th Assize Court of İstanbul Anadolu, which tried the applicant, the court ruled that the applicant is tried as a detainee and that the trial which was over be renewed. Within this framework, the execution of the ruling concerning the applicant was suspended and the applicant was released.

B. Relevant Law

20.  Article 2 of the Law No. 1721 on Governing Penitentiaries and Detention Houses of 14/6/1930 is as follows:

“…

E) Instructions shall be prepared...

...concerning how the convicts' letters and their conversations with those who come to visit them and their communication with the outside world will be regulated and controlled.

…”

21.  Article 66 of the Law No. 5275 on the Execution of Penalties and Security Measures of 13/12/2004 is as follows:

(1) Convicts in closed penitentiaries can make phone calls using the paid phones which are under the control of the management, as per principles and procedures specified in the by-law. The phone conversation is tapped and recorded by the management. This right can be limited for dangerous convicts and for those that are members of organizations.

2) Convicts in open penitentiaries and those in education homes for children can make phone calls freely.

(3) Immediate avail of convicts in open and closed penitentiaries of telephones and faxes which belong to the institution in the event of death, severe illness of their descendants, ascendants, spouses, and siblings as well as in the event of natural disasters shall be ensured. Such communication and correspondence shall be documented in the form of minutes, which shall be safeguarded in a special file.

(4) Convicts in open and closed penitentiaries and in education homes for children cannot keep car-phones, wireless phones or mobile phones and similar communication devices, nor use them.

22.  Article 68 of the Law No. 5275 is as follows:

(1) Apart from the limitations specified in this Article, the convict shall have the right to receive letters, faxes, and telegrams which have been sent to him/her as well as the right to send these under the condition that s/he shall bear the costs thereof.

(2) Letters, faxes, and telegrams which have been sent by the convict and which s/he receives shall be examined by the 'letter perusal' commission wherever such commission is available and, in institutions where the latter is not found, by the highest office. 

(3) Letters, faxes and telegrams that endanger the order and security of the institution, that target its staff, that cause communication between the members of interest-driven criminal organizations or other criminal organizations and that include lies, wrong information, threats and slandering which may cause individuals and other organizations to panic shall not be given to the convict. If these are written by the convict, they shall not be sent.

(4) Letters, faxes, and telegrams which are sent by the convict to official authorities or to his/her counsel for his/her defense shall not be subject to examination."

23.  Relevant paragraphs of Article 114 of the Law No. 5275 are as follows:

“…

 (2) Convicts in phases of investigation and prosecution can accept visitors under the condition that the general order of the institution on such matters is adhered to. However, the Public Prosecutor during the investigation phase, the judge or the court in the prosecution phase can prohibit the convicts' reception of visitors for the soundness of the investigation or the case or can impose restrictions in this regard.

(3) Written correspondence and phone calls of convicts can be restricted by the Public Prosecutor during the investigation phase and by the judge or the court in the prosecution phase.

...

(5)Convict's communication with the counsel and their contact and meetings within the framework of the institutional order shall in no way be hampered, nor can such restrictions be imposed.

(6) Provisions included in the special law are reserved."

24.  Article 115 of the Law No. 5275 is as follows:

(1) Measures below can be imposed on convicts who are dangerous, who pose a threat to tamper with the evidence, who endanger the purpose or the security of the penitentiary or who exhibits behavior that can prepare the grounds to allow recidivism, by the Public Prosecutor during the investigation phase and by the judge or the court during the prosecution phase:

.

b) Restriction of his/her connection to the outside world, his/her reception of visitors and phone calls for a certain amount of time.

…”

25.  Article 116 (1) of the Law No. 5275 is as follows:

(1) Of the provisions on issues ... of this Law which has been regulated in Articles 9, 16, 21, 22, 26 to 28, 34 to 53, 55 to 62, 66 to 76, and 78 to 88, those that are of congruent quality with the detention status can be applied regarding convicts.

26.  Article 244 (1) and the final paragraph of Article 244 of the Law on the Establishment and Trial Procedures of Military Courts No. 353 of 25/10/1963 is as follows:

"Penal judgments made by military courts shall not be carried out unless they are final. If a provision otherwise is not found in this Law and in the Military Penal Law, respective provisions of the Law on the Execution of Penalties and Security Measures No. 5275 of 13/12/2004 shall apply concerning the execution of penalties and security measures.

...

The modality of execution of penalties at military penal and detention houses shall be indicated in a regulation which shall be issued by the Ministry of National Defense..."

27.  Respective articles of the  Regulation on the Management of Military Prisons and Detention Facilities and the Execution of Penalties (Regulation) are as follows:

"Control of Communication:

Article 66 - Letters which are sent to and sent by all convicts and detainees shall be examined by the management of the military prison and detention house.

Letters which have been written by convicts and detainees shall be delivered to the management of the prison and detention house whereby the envelopes shall not be closed. Envelopes of the letters in the delivery of which no harm has been found shall be closed by the management of the military prison and detention house and delivered to the post office.

The letters, which have been sent to convicts and detainees, has been opened and examined and no harm has been found in the delivery thereof to the convict, shall be delivered to their recipients after marked 'SEEN.'

Letters which will be sent by all convicts in the military prison and detention house shall be processed as those of the enlisted.

(Amended Paragraph Five: Article 6 of the Regulation Concerning the Amendment of the Regulation on the Management of Military Prisons and Detention Facilities and the Execution of Penalties of 22.11.2010) Issue concerning how to benefit from tools of communication other than letters shall be regulated by way of instructions which shall be prepared by the management of the military prison and detention house. However, communication which is possible via mobile phones, radios, computers and similar devices shall be prohibited.

(Additional Paragraph Six: Article 6 of the Regulation Concerning the Amendment of the Regulation on the Management of Military Prisons and Detention Facilities and the Execution of Penalties of 22.11.2010) Communication by way of fax and telegram using the PTT facilities is possible under the condition that the cost thereof is covered by the convict and the detainee. Letters, faxes, and telegrams sent and received by the convict shall be examined by the highest authority of the institution.

Phone call

Article 66/A - Convicts and detainees in the military prison and detention house can make phone calls to their spouses, blood and in-law relatives until the third degree and their custodian under the condition that this is documented.

...

Phone calls by convicts and detainees with affinities specified in this article shall be tapped by the staff tasked accordingly by the warden of the military prison and detention house and if possible, recorded via electronic devices.

Visiting Convicts and Detainees

Article 70 - Convicts and detainees can be visited within the scope of principles established by the management of the prison and detention house. There shall be four visits per month whereby there shall be one visit each week, one of which shall be open and three closed.

A panel demonstrating the days and hours of visitation of convicts and the rules that shall be observed by the visitors shall be hung at the gate of the military prison and detention house in a way visible by the visitors. It is possible for the warden of the military prison and detention house to arrange the visitation of convicts and detainees who constitute a significant danger at the military prison and detention house, those who are suspected to escape and of those who are inclined to forming groups for days other than the rest.

Days and hours of visits shall be planned by the warden of the military prison and detention house and implemented by the company commander or the superior of the institution, in the organization of which a military court has been established. Duration of the visit cannot be arranged in such a way as to be less than half an hour and be in excess of one hour. Duration of the visit shall commence from the moment when the visit actually starts.

...

Meeting with the counsel and the notary

Article 70/A - The detainee shall meet with the counsel, without requiring a letter of proxy and as per the open visit procedure, and at all times and in an environment where the dialogue cannot be heard by others but also where the visits can be observed by the staff. Correspondence of such persons with the counsel shall not be subject to examination. In the investigation phase, three counsels at most can simultaneously meet with the detainee.

The convict and his/her counsel shall be allowed to meet as per the open visit procedure upon production of the professional identification, not on holidays but within working hours and at places provided for such visits where the dialogues cannot be heard but can be seen for reasons of security.

The records of the counsels' documents concerning the defense, files and of their dialogues with their clients shall not be subject to examination. However, in terms of the relation of the convicts who have been convicted as a result of offenses specified in Article 220 of the Law No. 5237, book two, chapter four, sections four and five with their counsels, upon the request of the military prosecutor and upon the judgment of a judge-class member of the military court staff, an official can accompany the counsel and the convict in such a visit in cases where the latter has committed acts which constitute a criminal offense, or endangers the security of the military prison and detention house, or in cases where findings and information that the convict acts as the intermediary to facilitate the communication of the members of terrorist or other criminal organizations are obtained; or the documents which have been given to these persons by the counsels thereof can be examined by the military court. The military court decides whether or not to give the document in whole or in part.

The convict shall have the right to meet his/her convicts who do not hold a letter of proxy at most three times within the scope of the performance of the profession of counseling.

Convicts and detainees can meet with the notary, on days other than holidays and during working hours, under the supervision of the administration and as per the open visit procedure under the condition that the professional identification is produced and that the visit concerns the profession.

 International Documents

28.  The part of the Recommendation REC (2006) No. 2 of the Council of Ministers of the European Council to the Member States Concerning the European Prison Rules, which relates to the relations of the convicts and detainees with their counsels and the outside world is as follows:

"Legal Advice

23.1. All prisoners are entitled to legal advice.  The prison authorities shall provide them with reasonable facilities for gaining access to such advice.

23.2. Prisoners may consult on any legal matter with a legal adviser of their own choice and at their own expense.

23.3. Where there is a recognized scheme of free legal aid the authorities shall bring it to the attention of all prisoners.

23.4. Consultations and other communications including correspondence about legal matters between prisoners and their legal advisers shall be confidential.

23.5. A judicial authority may in exceptional circumstances authorize restrictions on such confidentiality to prevent a serious crime or major breaches of prison safety and security.

23.6. Prisoners shall have access to, or be allowed to keep in their possession, documents relating to their legal proceedings.

Contact with the outside world

24.1 Prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organizations and to receive visits from these persons.

24.2 Communication and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations, maintenance of good order, safety and security, prevention of criminal offenses and protection of victims of crime.  But such restrictions, including specific restrictions ordered by a judicial authority, shall nevertheless allow an acceptable minimum level of contact.

24.3 National law shall specify national and international bodies and officials with whom communication by prisoners shall not be restricted.

24.4. The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible.

24.5. Prison authorities shall assist prisoners in maintaining adequate contact with the outside world and provide them with the appropriate welfare support to do so.

…”

IV. EXAMINATION AND GROUNDS

29.  The individual application of the applicant (App. No: 2013/6693 of 22/8/2013)  was examined during the session held by the court on 16/4/2015 and the following was ordered and adjudged:

A.   The Applicant's Allegations

30.  Indicating that he was detained de jure at the Military Prison within the scope of the trial the appeal examination of which was ongoing at the Court of Cassation; that his defense, as well as his requests concerning following up a news piece about himself on the Internet and a phone call to his counsel, had been rejected as such regulations were absent from the Execution Regulation; that, on the other hand, his open visits or phone call conversations with his family and other persons whenever he wanted were restricted despite various arrangements in Law No. 5275 and the Execution Regulation concerning the status of the detainees in prison; and that his phone calls and other communication capabilities were recorded or followed to the detriment of the privacy thereof and, moreover, he could not follow broadcasts/publications about himself for he was denied access to the Internet, hence failed to accede the information that he needed to prepare his defense and that such restrictions were imposed without reliance on any law or without a decision of a Public Prosecutor or a judgment of a court; the applicant alleged that his fundamental rights regulated in Articles 13, 19, 20, 22, 36 and 41 of the Constitution were violated and requested that the respective articles of the Regulation be revoked and he be compensated. 

B.    The Constitutional Court’s Assessement

31.  The Constitutional Court is not bound by the legal qualification of the facts made by the applicant. When the annexes of the application form are examined, it is seen that although the Applicant claimed that his fundamental rights regulated in Articles 13, 19, 20, 22, 36 and 41 of the Constitution had been violated, the application, for reasons stated here below, was perused within the framework of respect to family and private life, and the right to communication.

1. Admissibility

a. The Allegations Concerning the Violation of the Right to Communication

32.  Indicating that he was detained de jure at the Military Prison within the scope of the trial, the appeal examination of which was ongoing at the Court of Cassation; that his defense, as well as his requests concerning following up a news piece about himself on the Internet and a phone call to his counsel to discuss such matters, were rejected as such regulations were absent from the Execution Regulation, the Applicant claimed that his right to a fair trial was violated. Also, the Applicant claimed that his communication with his family and other persons had been recorded or controlled in a way to violate privacy.

33.  Regarding the applicant's claims concerning the phone call with his counsel and access to the Internet, the Ministry, in its letter of opinion, indicated that the trials regarding the applicant were still ongoing, hence legal remedies remained yet to be exhausted. Apart from that, no evaluations as to the admissibility of the application concerning the freedom of communication were made. The Ministry has stated that requesting the opinion of the Ministry of National Defense regarding the material facts would be appropriate.

34.  In his statement in objection to the opinion of the Ministry, the Applicant indicated that he had no applications regarding the trial file which was the material basis for his detention and that he made his application, in general, for prevention of detainees' communication with their counsels constituted a violation of the right to a fair trial. Concerning the following of his communication with his family and other persons, he reiterated what he had already indicated in the application form.

35.  It is clear that the Applicant's claims that he could not have a phone call with the attorney are not to prepare his defense against the trial which was the basis of his detention on the date of the application. Being de jure detained, the Applicant alleged that prevention of the phone call with his counsel, in general, was in violation of his right to a fair trial. There are no reservations that such issues as ensuring adequate facilitation for the preparation of a defense against an ongoing trial and regarding the avail of attorney services fall within the scope of the right to a fair trial. However, with the judgment of the 4th Assize Court of İstanbul Anadolu concerning the re-trial, it was recognized that the procedure was ongoing and that the claims of the applicant stood the chance of a scrutiny at the Court, hence it was not deemed necessary to examine his claims separately within the framework of the right to a fair trial (Concerning the commencement of a re-trial upon the judgment to renew the trial being an effective way of application, see Aziz Yıldırım, App. No: 2014/1957, 23/7/2014, § 57). Applicant's claims that he was not allowed to use the Internet media so as to enable the preparation of his defense were also considered to remain within the said scope of the right to a fair trial, hence not perused. 

36.  When the application form and its annexes are examined, the essence of the claims of the applicant concerns the facts that his communication with his counsel via a phone call was restricted and his communication with his family and other persons were controlled. The Constitutional Court is not bound by the legal qualification of the facts made by the applicant. For this reason, the applicant's claims that he was prevented from calling his counsel and that the privacy of his communication with his family and other persons was violated have been considered within the framework of the freedom of communication, which has been defined in Article 22 of the Constitution.

37.  The recommendation to request the opinion of the Ministry of National Defense has been found illegitimate considering that information on the facts and circumstances in addition or different from what is within the scope of the existing file were not needed.

38.  Applicant's application concerning the violation of his right to communicate defined in Article 22 of the Constitution as he was not allowed to make a phone call to his counsel as he was under de jure detention and that his communication with his family and other persons were controlled is not manifestly ill-founded and for no other reasons to require a ruling of inadmissibility are visible, it has to be ruled that it is admissible.

b. The Allegations Concerning the Violation of the Right to Respect for Private and Family Life

39.   The Applicant claimed that his phone contact and open and closed visits with his visitors and his family whenever he wanted to do so were restricted and incoming phone calls were also prevented although this had no legal basis as a result of different arrangements made in the Law No. 5275 and the Regulation concerning the status of detainees in prisons, and although this did not rely on any decision by the Public Prosecutor, judge or court.

40.  No assessment was made in the Ministry's opinion concerning the admissibility of the individual application. On the other hand, the Ministry considered that it would be appropriate to seek the opinion of the Ministry of National Defense concerning the claims that the applicant was denied phone contact or open visits with his family or that his visits were restricted.

41.  For the applicant's claims in general were pertaining to the restriction of his meeting his family and other affinities and surveillance of such meetings and since he did not mention any practices other than the implementation of the provisions of the legislation concerning his meeting with his family and other affinities, requesting additional information and documents from the Ministry of National Defense was not considered to be a necessity.

42.  As the applicant's application regarding the violation of his right to respect for his family and private life, which has been defined in Article 20 of the Constitution, was neither manifestly ill-founded nor any other reasons that require a decision in the direction of its inadmissibility were found, a decision as to its admissibility has to be made.

2. Merits

a. The Allegations Concerning the Violation of the Right to Communication

43.  Indicating that Article 114 (3) of the Law No. 5275 provides that the Public Prosecutor or the Judge or the Court could impose restrictions on the detainees' correspondence and phone calls and that as per the paragraph (5) of the same Article it is essential not to prevent detainee's communication with the counsel and their meeting in respect of institutional rules, the applicant claimed that preventing his phone calls to his counsel were bereft of any legal basis. Furthermore, the applicant claimed that reading of his mail and interception and recording of his phone conversations despite the absence of a ruling of the court or of the judge concerning the restriction judgment in line with his detention as well as the absence of any legal grounds concerning such restriction of his communication via mail and phone was a violation of the privacy of communication.

44.  In its opinion, the Ministry assessed the applicant's inability to meet with his counsel within the scope of the right to a fair trial. In the evaluation carried out under the light of the case law of the ECtHR (European Court of Human Rights) and the right to a fair trial, the requirement to offer adequate facilitation so as to enable the preparation of the defense was emphasized and the importance of the right to access to a lawyer was touched upon. On the other hand, in its evaluation concerning the violation of the privacy of private life, it reminded of Article (8) of the European Convention on Human Rights (Convention) as being inclusive of the right to respect to communication. However, in general, it assessed the claims concerning the applicant not being able to meet with his family and other affinities. The Ministry made no other assessments concerning control and surveillance of communication.

45.  In his declaration against the opinion of the Ministry, the Applicant stated that the Ministry has misunderstood his claims as his complaint in general concerned the prevention of detainees' communication with their counsels.

46.   Article 8 of the Convention with the side heading ''Right to respect for private and family life'' is as follows:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. No interventions on the exercise of such rights can be imposed by public authorities other than those which are legitimate and needed in a democratic society with the aim to protect national security, public security, national welfare, to prevent crime and disorder as well as to protect the general morals and the rights and freedoms of others."

47.  The ECtHR examines grievances concerning the right to communication within the framework of Article 8 of the Convention. Also, not a single Article in the Constitution to reciprocate Article 8 of the Convention is present. The right to communication, which is the basis of the claims of the Applicant, is regulated in Article 22 of the Constitution.

48.  Article 22 of the Constitution with the side heading of ''Freedom of the press'' is as follows:

"Everyone has the freedom of communication. Privacy of communication is fundamental.

Unless there exists a decision duly given by a judge on one or several of the grounds of national security, public order, prevention of crime, protection of public health and public morals, or protection of the rights and freedoms of others, or unless there exists a written order of an agency authorized by law in cases where delay is prejudicial, again on the above-mentioned grounds, communication shall not be impeded nor its privacy be violated.  The decision of the competent authority shall be submitted for the approval of the judge having jurisdiction within twenty-four hours.  The judge shall announce his decision within forty-eight hours from the time of seizure; otherwise, seizure shall be automatically lifted.

Public institutions and agencies where exceptions may be applied are prescribed in law.

49.  In Article 22 of the Constitution, it is provided that everybody has the freedom of communication and that the privacy of communication is fundamental. Article 8 of the Convention provides that everybody has the right to request that his or her correspondence is respected. The joint sphere of protection of the Constitution and the Convention provides protection also for the privacy of correspondence in addition to the freedom thereto, regardless of its content and form. Within the scope of communication, the security of the expressions of individuals which constitute the subject matter of their collective and mutual verbal, written and visual communications shall also be ensured. Communication activities which are performed via mail, electronic mail, telephone, fax, and Internet have to be considered within the scope of the right to correspondence and the privacy of communication (Yasemin Çongar and Others [GK], App. No: 2013/7054, 6/1/2015, §§ 48-50).

50.  Preventing public authorities' arbitrary intervention in individual's right to communication and the privacy of the correspondence thereof comes within the scope of the securities the Constitution and the Convention offers. Control of the content of correspondence constitutes a gross intervention on the privacy of communication, hence the freedom of correspondence. Freedom of communication, on the other hand, is not absolute and comes with certain legitimate limitations. The specific criteria for such limitation within this scope have been listed in Article 22 (2) of the Constitution and Article 8 (2) of the Convention. Furthermore, in Article 22 (3), it is indicated that the public bodies and institutions which have been provided with exceptions shall be specified in the Law.  So, the presence of legality and any circumstance that requires intervention in the scrutiny of the alleged interventions on the freedom to communicate shall be assessed with a consideration for the circumstances of each case.

51.  Also, the convicts and detainees, with the exception of the right to individual freedom and security that can be considered as detention in legal terms in Article 19 of the Constitution (see İbrahim Uysal, B.No: 2014/1711, 23/7/2014, §§ 29-33) enjoy all fundamental rights and freedoms, generally, that fall under the joint sphere of protection of the Constitution and the Convention (For a similar judgment see Hirst v. the United Kingdom (No. 2), App.No. 74025/01, 6/10/2005, § 69). . Also, these rights can be restricted in cases where reasonable necessities such as prevention of recidivism and ensuring discipline to ensure order and security in the penitentiary are present as an inevitable consequence of being confined in such an institution. However, restriction concerning the rights of the convicts even under such circumstances must satisfy, in line with the Law specified in Article 13 of the Constitution the conditions for being suitable for a democratic society and proportionate as well as law-based and legitimate (for a similar judgment, see Silver and Others v. the United Kingdom, App. No. 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75, 7136/75, 25/3/1983, §§ 99-105).

52.  In the incident which is the subject of the application are allegations concerning the two dimensions of the freedom to communicate. The first concerns not allowing the applicant's phone call to his counsel.  Whereas the other concerns reading mail and recording of phone calls within the scope of his relations with the outer world. These issues have been elaborated further, under separate headings, here below:

i. Prevention of Contacting His Counsel

53.  Indicating that the detainee's correspondence with his counsel and their meeting within the scope of the institutional order is essential as per Article 114 (5) of the Law No. 5275 are essential, the applicant claimed that the prevention of his phone call with his counsel has no legal basis.

54.  The Constitution and the Convention indicate that everybody has the freedom to communication. Within this context, there is no doubt that persons detained in prisons have the right to communication. However, the tools with which communication shall be made has not been explicitly provided in the Constitution and the Convention. Muteness of the Constitution and the Convention regarding the determination of tools of communication can be said to give rise to the consequence that all sorts of communication can be considered within this scope. Also, the larger margin of discretion that public authorities have regarding the determination of the freedom to communicate within prisons is a circumstance which is understandable in line with the quality and purpose of a prison. Within this context, it is obvious that the scope of the freedom to communicate is not inclusive of all tools of communication regarding convicts and detainees who are kept in prison. It shall be assessed whether or not it is of the proportion to remove the freedom to communicate entirely for detainees and convicts and whether or not the intervention which has been made upon the examination of the characteristics of present cases is in violation of the freedom to communicate. The basic approach in this context shall be to support the contact with the outer world of convicts and detainees. 

55.  Especially in cases where other means of communication are available and sufficient, it would not be possible to interpret Article 22 of the Constitution and Article 8 of the Convention in a way as if they provide security for the phone calls of the convicts and detainees (For similar judgments of the ECtHR see EU v. The Netherlands, App. No: 37328/97, 29/1/2002, §§ 92-93). The point of attention here is the requirement that the margin of discretion of public authorities regarding ensuring the communication of convicts and detainees with the outer world shall be interpreted widely. In cases where one or some of the methods of communication are available and sufficient, not allowing convicts and detainees their phone calls cannot be considered per se as the violation of the right to communicate. However, in cases where detainees and convicts within the scope of Article 22 of the Constitution, are given the possibility of a phone call in addition to other tools of communication, restrictions on such freedom need to be as per a legitimate cause and in line with the requirements of a democratic society, as well as proportionate.

56.  Phone calls are recognized for convicts and detainees within the scope of Article 66 of the Law 5275. Regarding the case at hand, allowing detainees to make phone calls has to be a valid practice for the applicant considering the rule that among the articles concerning the rights, restrictions, and liabilities of convicts as provided in Article 116 of the same Law, those which are congruous to the state of detention can be applied to detainees. As a matter of fact, the principles concerning the applicant's phone calls have also been clarified as per Article 66/A of the Regulation. As such, there is no doubt that phone calls are also included within the scope of the freedom of convicts and detainees to communicate.

57.  Convicts and detainees seeing their counsels within the framework of freedom to communicate is yet another issue which has to be assessed separately. All convicts and detainees, as specified in the Recommendations No. REC (2006) 2 of the Council of Ministers of the European Council to the Member States Concerning the European Prison Rules, have the right to get legal counsel. Within this framework, it is the liability of the prison management to provide the convicts and detainees with reasonable assistance. However, no material method has been provided as a part of the said recommendations as to which tools of communication such liability is to be performed with. Determination thereof is the responsibility of public authorities. 

58.  Convicts' and detainees' meeting with a counselor an attorney has been regulated in diverse articles of the Law No. 5275. Convicts' meeting with an attorney has been regulated in Article 59 of the said Law. Then, regarding detainees, it is Article 114 (5) entitled the 'rights of detainees' of the same Law which provides that detainees' communication with the attorney as well as their meetings within the scope of institutional order can neither be prevented nor limited in any way. The meeting procedure of the convicts specified in Article 59 has been accepted as well for detainees as per and under the condition not to contradict the condition of detention specified in Article 116.

59.  As is the case with the case at hand, that the modality of execution of the sentences in military prisons and detention houses, and the issue that the respective provisions of the Law No. 5275 shall be applied in the execution of sentences and security measures as long as there are not any provisions otherwise in Article 244 of the Law No. 353, shall be regulated in a Regulation to be issued by the Ministry of National Defense. As such, in the case at hand, the applicant's having been kept at the military prison leads to no difference whatsoever regarding the articles of the Law which will be applied.

60.  In the incident which is the subject of the application, applicant's request to have a phone call was rejected on the basis of arrangements in the Law No. 5275 (see. § 11). Similarly, in the case that the applicant has lodged with the High Military Administrative Court against the judgment of rejection of the Command and with the request that it be judged that the Regulation is rescinded, the Court made an assessment of the legal appropriateness of the Regulation on the basis of Law No. 5275. 

61.  Under the light of what has been specified here above, it is obvious that the applicant has the right to make phone calls. Furthermore, there are no legal obstacles regarding the meeting of the de jure detained applicant with his attorney. However, the issue of whether means of communication via phone is inclusive of meeting with the attorney has to be clarified.

62.  In the field of fundamental rights and freedoms, the legislative body is obliged to make foreseeable regulations that do not allow for arbitrariness. Granting a very broad discretionary power to the administration which may pave the way for the arbitrary practices may be contrary to the Constitution. The formal existence of the laws as regards the limitation of the fundamental rights and freedoms may not be considered to be sufficient; at the same time, the quality of the laws should also be examined. The measures to be taken by the executive body based on the order of the law in a field as regards the fundamental rights and freedoms must have an objective quality and must not grant a broad discretionary power that will pave the way for arbitrary practices of the administration (see AYM, E.1984/14, K.1985/7, K.T. 13/6/1985).  

63.  On the other hand, the Constitutional Court on issues such as the restriction of liberties which have to be regulated exclusively by law, has agreed that the law has to have determined basic principles, essentials, and the framework; and that regarding issues that the Constitution maker has explicitly provided that should be regulated by law, the transfer of the legislative power of issues concerning specialties and the technique of implementation to the executive body after having determined the ground rules cannot be interpreted as the transfer of the legislative power (Judgment of the Constitutional Court AYM. No. E.2014/133, K.2014/165 of 30/10/2014). In this context, it has been agreed that following the determination by the lawmaker of the basic principles, essentials and the framework in legal arrangements concerning the limitation of fundamental rights and freedoms, other details can be determined by way of regulatory transactions. Otherwise, a contrariety will also occur with Article 13 of the Constitution as to the fact that the fundamental rights and freedoms may only be limited by law.

64.  It cannot be said that the freedom of correspondence defined in Article 22 of the Constitution secures exclusive phone calls of the convict and detainees in cases where other means of communication are made available (see § 55). Also, there is no doubt that securing the phone communication of the applicant who was de jure detained in the present case, as required by Article 66 and by the indication of Article 116 of the Law No. 5275, is within the scope of Article 22 of the Constitution.

65.  It must be determined whether or not the possibility of making phone calls which have been secured as per the regulations provided in Law No. 5275 with reliance upon Article 22 of the Constitution comprises of detainees' meetings with their counsels. In Article 114 (5) of the Law 5275, it has been provided that the detainee's communication with his counsel cannot be prevented or restricted. There is no doubt that the concept of communication also includes communication via phone. So, it has been agreed that the phone communication of the detainee who has been de jure detained in the present case cannot be prevented and restricted. Also, in the Law No. 5275 and in the Regulation, there are no provisions that the de jure detainee cannot have phone calls with his attorney.

66.  As a matter of fact, the Command and the High Military Administrative Court which have rejected the applicant's request to make a phone call with his attorney have agreed as a justification that convicts' and detainees' phone calls with their counsels being private, applicant's phone call with his attorney would not be allowed (see § 11, § 16). Furthermore, the absence of any explicit regulation which allows the applicant's phone communication with his attorney was given as justification.

67.  In the present case, with reliance upon the justification that an explicit regulation is required so as to enable the applicant's exercise of his freedom of communication in prison and that the private correspondence cannot be recorded, the applicant was not allowed a phone call with his attorney. In other words, although there are no prohibitive provisions on the issue of the detainee making a phone call with his attorney, the freedom to correspondence was violated with the justification that a phone call with an attorney had not been regulated. However, reasonable evaluation of this justification against the explicit regulation in Article 114 (5) is not possible. As a matter of fact, what is essential against the provision of the Law is that a detainee's communication with his attorney must never be prevented or restricted in any way whatsoever. It is clear in Article 66 of the Law No. 5275 that the scope of communication is inclusive of communication via phone. Against the regulations provided in Articles 66 and 114 (5) of Law No. 5275, prevention of communication with his attorney of the applicant detained de jure with reliance upon justifications that such communication is being recorded and that there are no explicit provisions concerning correspondence with the attorney does not reciprocate the principle of legality.  As a conclusion, it cannot be said that sufficient legal arrangements to justify the prevention of the de jure detained applicant's phone call with his attorney are in place within the framework of the provisions of the Law.

68.  For reasons explained, it has to be decided that the prevention of applicant's phone call with his counsel is in violation of the right to communication which has been secured in Article 22 of the Constitution.

ii. The Allegations that His Correspondence with the Outside World via Phone and Mail Has Been Prevented

69.  The applicant claimed that his correspondence with his family and others were intercepted, phone calls recorded and tapped despite the absence of both any legal grounds and a restriction judgment made by the Public Prosecutor, judge or a court in line with the purpose of detention was in violation of the freedom to communicate.

70.  In the present case, the applicant alleged that his correspondence with his family and with other persons had been recorded regardless of the fact that the correspondence of persons who are in prison as detainees cannot be monitored without an explicit legal regulation differently from convicts. Hence, the claims of the applicant were rooted in the fact that the intervention in the privacy of communication took place without any legal regulation and that they purported no aspect of legality. Apart from this, the applicant did not mention any material incident.

71.  Preventing public authorities' arbitrary intervention in individual's right to communication and the privacy of the correspondence thereof comes within the scope of the securities the Constitution and the Convention offer (see §§ 49-50). Freedom of communication, on the other hand, is not absolute and comes with certain legitimate limitations. The specific criteria for such limitation within the scope of the subject matter of the application have been listed in Article 22 (2) of the Constitution and Article 8 (2) of the Convention. Furthermore, in Article 22 (3), it is indicated that the public bodies and institutions which have been provided with exceptions shall be specified in the Law.

72.  The applicant did not mention any material incident regarding the recording and tapping of his phone calls and scrutiny of his mail. Then, it is obvious that the Military Prison Management monitored phone and mail correspondence of the applicant who was detained within the scope of  Articles 66 and 68 of the Law No. 5275 and Articles 66 and 66/A of the Regulation. Hence, the examination of the application cannot be refrained from with the justification that the claims of the applicant not being based on events that are substantial and which took place, and that the applicant holds no status of any victimization (for similar judgments see Klass v. Germany, App. No. 5029/71, 6/9/1978, §§ 34-35, Campbell v. the United Kingdom, App. No: 13590/88, 25/3/1992, §§ 32-33). On the other hand, within the scope of the said regulations, recording of all phone calls by the Military Prison Management is obviously an intervention in the privacy of applicant's communication.

73.  Respect to family life shall also be taken into consideration during the examination of the applicant's claims concerning tapping and recording of the phone calls he made with his family. In the case which is the subject matter of the application, inevitable consequences of being kept in prison and the issue concerning the privacy of communication with the family have to be taken into consideration collectively with reliance upon Articles 20 and 22 of the Constitution. Within this context, in the examination whether or not the intervention on the privacy of communication is in violation of the respect to family life as defined in Articles 20 and 22 of the Constitution and the freedom of communication, the intervention has to be checked as to its compliance of the principles of legality, legitimate aim, requirement in a democratic society and proportionality.

74.  In Article 22 of the Constitution, it has been specified that the intervention on the privacy of communication can take place upon the verdict of a judge and within the framework of aims specified in paragraph two. Yet, in paragraph three, it has also been specified that certain public bodies and institutions can be considered as exceptional with the law.

75.  Determination of which paragraph of Article 22 of the Constitution the intervention of the Prison Management in the communication of convicts and detainees falls into the scope of is of importance regarding the legality of such intervention. For in the event of agreement that this falls under paragraph two, the intervention made without a verdict or an approval of the judge shall fail to satisfy the principle of legality. On the other hand, in the event that paragraph three is taken up on the agenda, it shall be assessed whether or not the lawmaker accepts the prison as an exceptional institution.

76.  In the legislation are no explicit regulations as to prisons being of the exceptional public bodies or institutions specified in Article 22 (3) of the Constitution. Then, it has been provided that the regulation and control of the communication of convicts and detainees shall be carried out via by-law in line with Article 2 (e) of the Law No. 1721. On the other hand, it was indicated that this should be restricted as per the rules which have been provided in the Law under the condition that the other rights of the convicts involved in the Constitution and basic aims of execution remain reserved as per Article 6 (1) (b), and that regarding the detainees and as per Articles 66 and 68 of the Law No. 5275 and by indication of Article 116 thereof, that correspondence via phone, letters, fax, and telegram would be monitored.  As such, it was seen that the articles of Law specified here above consider the prison as an exceptional public institution where the freedom to communicate can be restricted.

77.  It cannot be said that the performance of the principle of legality is not possible by way of a general legal regulation concerning that the freedom to communicate can be restricted. Other than that, basic principles which have to be present in the legal regulation which can be defined as the quality of the law made have to be determined and the limitations of offices to exercise their discretion have to be clarified. Within this context, as the Grand Chamber of the Court of Constitution has indicated in its judgment, the basic principles of the Law and the general framework have to be provided (see §§ 62-63). As a matter of fact, it cannot be said that Articles 66 and 68 of the Law 5275 meet these requirements neither concerning the claims of the applicant nor in general terms. Hence, it has to be accepted that the principle of legality has been satisfied regarding the limitation of the communication of the convicts and detainees in prison.

78.  There is no doubt that the legitimate aim of the intervention is to ensure security in prisons and prevention of crime.

79.  The applicant, in his allegations, mentioned concrete facts but made allegations as to the violation of the privacy of communication. Within this context, it cannot be asserted that taking of certain measures concerning the control of convicts' or detainees' communication by the administration in prisons from the viewpoint of the requirements of a democratic society is the consequence of the reasonable and natural requisites of depriving people of their freedom, nor that this is compliant to the freedom to communicate (for similar judgments, see Campbell v. the United Kingdom, § 44: Silver and Others v. the United Kingdom, § 98; Golder v. the United Kingdom, App. No. 4451/70, 21/2/1975, § 45; Mehmet Nuri Özen and others v. Turkey, App. No: 15672/08, 11/1/2011, § 51). On the other hand, regarding the incident which is the subject of the application, it cannot be said that prison administration's control of the communication of convicts and detainees is, in general, disproportionate.

80.  For reasons explained, it has to be decided in this section of the application that the prevention of applicant's phone call with his counsel is not in violation of the right to communication which has been secured in Article 22 of the Constitution.

b. The Allegations Concerning the Violation of the Right to Respect for Private and Family Life

81.  The applicant claimed that his correspondence with his family and others had been intercepted, phone calls had been recorded and tapped despite the absence of any legal grounds and a restriction judgment made by the Public Prosecutor, judge or a court in line with the purpose of detention.

82.  The Ministry indicated in its opinion that the convicts' and detainees' maintaining their contact with their families and other affinities was the basic aspect of respect to private and family life and, however, this issue had to be considered in line with prevention of disorder and crime which is an inevitable consequence of conditions of detention. On the other hand, the Ministry with reference to the judgments of the ECtHR said that during the examination of the intervention in the right to respect to private and family life, an assessment as to legality, legitimate aim, requirement and proportionality in a democratic society had to be made. 

83.  The applicant, in his response to the opinion of the Ministry, alleged that visits of the detainees had not been as much limited as those of convicts, that his wife, kids and other visitors had had hardships as a result of not being able to visit him as they wished and for not being able to contact on the phone as they needed, that detainees maintenance of their contact with the outer world had not been subject to any legal limitations and that he was restricted whereas he should have been entitled to visitation of his family and to phone calls whenever he wished to and without limitation.

84.  Article 8 of the Convention with the side heading ''Right to respect for private and family life'' is as follows:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. No interventions on the exercise of such rights can be imposed by public authorities other than those which are legitimate and needed in a democratic society with the aim to protect national security, public security, national welfare, to prevent crime and disorder as well as to protect the general morals and the rights and freedoms of others."

85.  Article 20 of the Constitution with the side heading ''Privacy of private life'' is as follows:

"Everyone has the right to demand respect for his/her private and family life Privacy of private or family life shall not be violated.

 Unless there exists a decision duly given by a judge on one or several of the grounds of national security, public order, prevention of crime, protection of  public health and public morals, or protection of the rights and freedoms of others, or unless there exists a written order of an agency authorized by law, in cases where delay is prejudicial, again on the above-mentioned grounds, neither the person, nor the private papers, nor belongings of an individual shall be searched nor shall they be seized. The decision of the competent authority shall be submitted for the approval of the judge having jurisdiction within twenty-four hours the judge shall announce his decision within forty-eight hours from the time of seizure; otherwise, seizure shall automatically be lifted

Everyone has the right to request the protection of his/her personal data.  This right includes being informed of, having access to and requesting the correction and deletion of his/her personal data, and to be informed whether these are used in consistency with envisaged objectives.  Personal data can be processed only in cases envisaged by law or by the persons explicit consent.  The principles and procedures regarding the protection of personal data shall be laid down in law."

86.  Article 41 of the Constitution with the heading ''Protection of the family, and childrens rights'' is as follows:

"Family is the foundation of the Turkish society and based on the equality between the spouses.

The State shall take the necessary measures and establish the necessary organization to protect the peace and welfare of the family, especially mother and children, and to ensure the instruction of family planning and its practice.

Every child has the right to protection and care and the right to have and maintain a personal and direct relationship with his/her mother and father unless it is contrary to his/her high interests.

87.  By taking into account provision of Article 20 (1) of the Constitution that "Everyone has the right to demand respect for his/her private and family life", a regulation similar to the one in Article 8 of the Convention on the right to respect to private and family life has been made. Also, a complementary regulation is also provided in Article 41 of the Constitution to specify the positive obligations of the state in terms of protecting the family in consideration of the role it plays in social life in addition to its social construct.  Regarding the issue of respect to family life and the protection of such life, such regulations in Articles 20 and 41 of the Constitution necessitate a consideration which observes the interests of other members of the family and those of the society, in general, more than merely being an individual-oriented one. For this reason, in terms of respect to family life, Article 20 of the Constitution has to be applied together with Article 41.

88.   As per Article 19 of the Constitution, restriction of convicts' and detainees' private and family lives is an inevitable and natural consequence of being legally confined in a prison. On the other hand, the right to respect convicts' and detainees' private and family lives mandate the prison management to employ measures to ensure the maintenance of convicts' and detainees' contact with their families (for similar judgments, see. Messina v. Italy (No. 2), App. No. 25498/94, 28/12/2000, § 61; Ouinas v.France, App. No. 13756/88, 12/3/1990; Vlasov v. Russia, App. No: 78146/01, 12/6/2008, § 123; Kučera v. Slovakia, App. No: 48666/99, 17/7/2007, § 127). As a matter of fact, also in Recommendation REC (2006) No. 2 of the Council of Ministers of the European Council to Member States Concerning the European Prison Rules, it has been indicated that convicts and detainees should be allowed to communicate as often as possible with their families, with other persons and with the representatives of organizations outside through letters, telephone or using other means of communication as well as that such persons as the latter be allowed to visit convicts and detainees (see § 28)).

89.  When Article 41 of the Constitution is taken into consideration with Article 20 thereof, it is obvious that the State is under the obligation to take measures to ensure that the convicts and detainees can meet their families. However, as cautioned above, while the prison management performs these duties, it has to take the inevitable and natural consequences of being kept in the prison into consideration. Within this context, the principle to be considered as essential is to ensure a fair balance between the security and order of the prison, prevention of recidivism and the right to respect to family life. However, within the framework of the relation between freedom and security as a part of such balance, it has to be taken into consideration that the management has a wider discretion margin in terms of intervention in freedom.

90.  In the incident which is the subject of the application, although the applicant is de jure detained for terrorist crimes, he made no allegations regarding being subjected to practices other than those other convicts and detainees had been subjected to in terms of contacting his family. Within this context, unlike the other convicts, no allegations of prevention regarding the duration, frequency and regarding open or closed visits were made.  On the contrary, the applicant claimed that he needed to have wider visitation opportunities than other convicts as per the Law No. 5275 for he was detained.

91.  There is no doubt that the restriction of applicant's contact with his family and other affinities via telephone and during visits constitutes an intervention in the right to respect for private and family life within the scope of the allegations of the applicant and on legislative grounds (see Öcalan v. Turkey(No. 2), App. No: 24069/03, 197/04, 6201/06 ve 10464/07, 18/3/2014, § 155; Messina v. Italy (No. 2), § 62).

92.  The assessment of whether an intervention in the right to respect for private and family life constitutes a violation or not requires, firstly, to determine whether or not such intervention has been regulated in the law. In other words, the legality of such intervention as per Article 13 of the Constitution has to be evaluated.

93.  In Articles 66 and 68 of the Law No. 5275, the formality of face to face and telephone communication with the family and with other affinities has been described and the main framework of restrictions on this issue has been provided. Yet, in Articles 66, 66/A and 70 of the Regulation, the frequency and formality of such communication have been regulated in detail within the framework of the principles prescribed in the Law No. 5275. By indication of Article 116 of the Law No. 5275, it is obvious that the said provisions shall also be applied for detainees. Thus, there is nothing lacking regarding the legality of the regulations concerning the communication with his family and other affinities of the applicant who is de jure detained.

94.  The legitimate aim in the event of interventions in the respect to private and family life has to be determined within the framework of Article 20 of the Constitution and Article 8 (2) of the Convention. Accordingly, with a limited count, such legitimate aims have been determined as national security, public order, prevention of committing of crimes, global health, and protection of global morals or the rights and freedoms of others. Within this context and within the framework of the particular conditions of the prison, the legitimate aim in restricting convicts' and detainees' communication with their families shall be considered as to prevent disorder and committal of crimes in prison within the framework of public order and public security.

95.   In a democratic society, requirement means that the intervention is of the quality to respond to higher public good and as proportionate as to achieve the legitimate goal (Together with other, see McLeod v. the United Kingdom, App. No: 24755/94, 23/9/1998, § 52).

96.         The regime concerning convicts' and detainees' contact with their families as the Law No. 5275 and the  Regulation agree it is provided that the applicant can meet his family and other affinities under the same conditions applicable for other convicts regardless whether he is detained for terrorist crimes. Within this framework as per Article 66/A of the  Regulation, it is agreed that convicts and detainees can make phone calls to their spouses, blood and in-law relatives until the third degree and their custodian under the condition to document. On the other hand, it is also provided in the same Article that convicts and detainees can have an uninterrupted 10 minute-phone call with one or more of their affinities once every week and on a single number.

97.         Four visits per month for convicts and detainees have been provided as per Article 70 of the Regulation where visits shall take place once every week whereby one shall be open and the remaining three shall be closed. It is provided, also, that the duration of the visits shall not be less than half an hour and more than one hour during which the relatives and the other three persons identified can be seen.

98.         That the convicts and detainees have lost their freedom shall not also mean that they are required to lose their ties with their families and other affinities. On the contrary, the prison management shall endeavor to ensure that such opportunities to enable convicts' and detainees' contact with the outer world are available. As a matter of fact, this issue has also been sounded in the Recommendations of the European Council of Ministers (see § 28), emphasizing that the convicts and detainees should be allowed to be visited and communicate.

99.         Also, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has emphasized the utmost importance of the maintenance of convicts' and detainees' contact with the outer world and that convicts and detainees have to be given the opportunity, before anything, to continue their relations with their families or close friends. The basic principle that the CPT agrees in this regard is that such support or restriction of contact with the outer world can only be justified with significant security concerns or limitation of resources (CPT Standards, 2002).

100.      The report dated 15/1/2015 which was prepared by the CPT in relation to the Committee's visit to Turkey between 9-21/6/2013 mentions in the section on contact with the outer world in prison, the insufficiency of four visits a month (three closed and one open visit). Yet, it is recommended in Paragraph 108 of the Report that, except for security-based concerns, open visits can be essential whereas closed visits the alternative.

101.     In the incident which is the subject of the application and concerning the balance between intervening in and restricting the applicant's right to respect private and family life as an inevitable and natural outcome of imprisonment and the public interest on the basis of prison order and security and prevention of crimes, it cannot be said that the prison management pursued an approach other than ensuring and protecting convicts' and detainees' contact with their families and other affinities within the legislative framework. Nor the applicant had any claims to this effect. On the other hand, the applicant also has the right to have four visits a month and ten minutes of phone call every week. And the applicant being under detention shall not be interpreted as within the legislative scope he shall have more extended opportunity to contact with the outer world than convicts. Within this framework, it is also evident that the phone calls and face-to-face visits with family and other affinities of the applicant are provided as they normally should have been.  

102.     In the light of the explanations above, the restrictions on the right of the applicant to respect private and family life cannot be considered to be in contrast with the requisites of a democratic society and the principle of proportionality which are required for the preservation of public order and recidivism within the circle of the meaning of Articles 20 and 41 of the Constitution.

103.     For reasons explained, it has to be decided in this section of the application that the applicant's right to respect to private and family life which has been secured under Article 20 of the Constitution has not been violated.

3.      Article 50 of the Code Numbered 6216

104.     The applicant has made a request for pecuniary damages of TRY 75,000.00 and non-pecuniary damages of TRY 100,000.00 for the violation of his Constitutional rights.

105.     Article 50(2) of the Law No. 6216 on the Establishment and Trial Procedures of the Constitutional Court with the side heading of ''Judgments'' is as follows:

"If the determined violation arises out of a court judgment, the file shall be sent to the relevant court for holding the retrial in order for the violation and the consequences thereof to be removed. In cases where there is no legal interest in holding the retrial, the compensation may be adjudged in favor of the applicant or the remedy of filing a case before the general courts may be indicated. The court, which is responsible for holding the retrial, shall deliver a judgment based on the file, if possible, in a way that will remove the violation and the consequences thereof that the Constitutional Court has explained in its judgment of violation."

106.     Having determined the violation of the applicant's right to communicate as guaranteed by Article 22 of the Constitution, non-pecuniary damages of TRY 5,000.00 has to be awarded to compensate the non-pecuniary damages incurred and which cannot be remedied upon mere determination of violation.

107.     Although the applicant made a request regarding pecuniary damages since it is understood that between the violations that have been identified and the pecuniary damages claimed is no link of causality, it has to be decided that the requests of the applicant regarding pecuniary damages be dismissed.

108.     It should be decided that the trial expense of TRY 198.35 as incurred by the applicant and determined in accordance with the documents in the file be paid to the applicant.

109.     Keeping the violation of the right to communicate within the scope of the application in view, the Ministry of Justice and the Ministry of National Defense shall each be sent a copy of the judgment for purposes of information.

V.       JUDGMENT

A.       It has been held UNANIMOUSLY that the complaints of the applicant regarding Articles 20 and 22 of the Constitution were violated are ADMISSIBLE,

B.       that the applicant's freedom to communicate under the guarantee of Article 22 of the Constitution was VIOLATED regarding his allegations that his 'Phone Call with his Counsel was Prevented,'

C.       that the applicant's freedom to communicate under the guarantee of Article 22 of the Constitution was NOT VIOLATED regarding his allegations that his 'Contact with the Outside World Through Phone Calls and Mail was Prevented,'

D.       The right to privacy of private and family life enshrined in Article 20 of the Constitution was NOT VIOLATED,

E.       The applicant be PAID damages of net TRY 5,000.00 for non-pecuniary DAMAGES and that other requests of the applicant regarding compensation be DISMISSED,

F.        that the trial expense of TRY 198.35, which was incurred by the applicant be PAID to the applicant,

G.       That the payments be made within four months as of the date of application by the applicant to the Ministry of Finance following the notification of the judgment; that in the event that a delay occurs as regards the payment, the legal interest be charged for the period that elapses from the date, on which this period comes to an end, to the date of payment.

H.       That a sample of the judgment be sent, as per Article 50 (3) of the Law No. 6216 to the applicant, the Ministry of Justice and the Ministry of National Defense,

on 16/4/2015.

I. CASE DETAILS

Deciding Body Second Section
Decision/Judgment Type Merits (violation)
Tag
(Mehmet Koray Eryaşa, B. No: 2013/6693, 16/4/2015, § …)
   
Case Title MEHMET KORAY ERYAŞA
Application No 2013/6693
Date of Application 22/8/2013
Date of Decision/Judgment 16/4/2015
Official Gazette Date/Issue 13/7/2015 - 29415
Press Release Available

II. SUBJECT-MATTER OF THE APPLICATION


The case concerns the alleged violations of the rights to a fair trial, to respect for private life and the freedom of communication due to the restriction on, and monitoring of, the applicant’s visit by his lawyer and family as well as to the restriction on access to internet deemed necessary by him to prepare his defence submissions.

III. EXAMINATION RESULTS


Right Alleged Violation Conclusion Redress
Right to respect for private and family life Communication - practices in penitentiary institutions (except objectionable letters) Violation Non-pecuniary compensation
Practices in penitentiary institutions No violation

IV. RELEVANT LAW



Type of legislation Date/Number of legislation - Name of legislation Article
Law 2
66
68
114
115
116
244
Regulation 66
66/A
70
70/A
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