7/3/2019

Individual Application 19/19

Press Release concerning the Judgment Finding a Violation of the Freedom of Communication due to the Failure to Re-Consider the Convict’s Status

The Facts

The Administrative and Observatory Board of the Penitentiary Institution (the Board) imposed a ban on phone conversations of the applicant convicted of membership of an armed terrorist organization. The applicant’s challenge was dismissed by the incumbent execution judge and assize court.

The Applicant’s Allegations

The applicant alleged that his freedom of communication had been violated, maintaining that he had been denied his right to make phone calls as from the first day of his transfer to this penitentiary institution.  

The Court’s Assessment

An interference with fundamental rights and freedoms may be considered compatible with the requirements of the democratic order of the society only if it meets a pressing social need and is proportionate.

It has been observed that the applicant’s membership of the PKK terrorist organization was found established by a court decision; and that his right to make phone calls was restricted during the terrorist events which were known as the ditch events and targeted both the security forces and civilians.

It has been also observed that the applicant’s denial of his right to make phone calls upon the establishment and on account of the fact that messages in the form of an organizational instruction were conveyed to the members of the terrorist organization in the course of the ditch events was a compulsory and necessary measure for ensuring public order and safety.

In the reasoning parts of the Board’s and inferior courts’ decisions, it was emphasized that the applicant had attended meetings with Abdullah Öcalan, the convicted leader of the terrorist organization, three days in a week; that at these meetings, Öcalan made assessments concerning the terrorist organization and delivered speeches in the form of organizational instructions; and that the applicant’s right to make phone calls was restricted with a view to preventing transmission of these instructions to the organization members.

In this respect, it cannot be said that imposing restrictions on certain rights of the organization members, within the scope of the legislation, for the purpose of preventing transmission of the instructions given by the heads of the terrorist organization for leading and managing the organization through means such as phone, letter or fax is not a convenient measure for maintaining public order and safety or does not meet the requirements of a democratic society. Nevertheless, it must be also determined whether the interference was proportionate or not.

Accordingly, in issuing a restriction order in respect of convicts’ rights on the basis of certain conditions, a period during which the restriction order will be in force must be set, and periodic examinations must be made, by considering updated and concrete information and documents, at certain intervals in order to determine whether the conditions are still prevailing.

In the present case, in the decision issued by the Board, no time-limit was set for the order depriving the applicant of his right to make phone calls. Besides, although it was specified therein that his right to make phone calls would be restricted until a second examination, no further examination was carried out in this respect.  

It has been accordingly concluded that the decision restricting the applicant’s right to make phone calls was implemented for a long time without setting a time-limit and making a further examination at certain intervals to determine whether the conditions forming a basis for the restriction order were still existing, which was disproportionate and was therefore in breach of the principle of proportionality.

Consequently, the Court found a violation of the freedom of communication safeguarded by Article 22 of the Constitution.