27/2/2020
Press Release No: Individual Application 13/20
Press Release concerning the Judgment Finding a Violation of the Right to Respect for Family Life due to Dismissal of a Detainee’s Request for Having a Contact Visit with His Child with Down Syndrome
On 16 January 2020, the Second Section of the Constitutional Court found a violation of the right to respect for family life safeguarded by Article 20 of the Constitution in the individual application lodged by Ahmet Gülen (no. 2016/23168).
The Facts
The applicant, a detainee in a penitentiary institution, submitted a request with the Administrative and Supervisory Board of the Penitentiary Institution (“the Board”) for a contact visit once a week with his child with Down syndrome, which was then dismissed. The applicant’s challenge against the Board decision was rejected by the execution judge, and his subsequent appeal was also dismissed by the assize court.
The Applicant’s Allegations
The applicant maintained that his right to respect for his family life had been violated for dismissal of his request for a contact visit once a week with his child with Down syndrome.
The Court’s Assessment
While the number of visitors to penitentiary institutions may be subject to limitations with a view to ensuring security and discipline in a democratic society, in this respect, the particular circumstances of prisoners must be taken into account, as well as the flexibility entailed by the circumstances of the case must be observed. In this sense, a reasonable balance must be struck between the public interest in ensuring security and discipline in penitentiary institutions and the individual interest of prisoners in maintaining their family relationships.
The applicant’s request for having contact visits with his child instead of already allowed non-contact visits was dismissed by the penitentiary institution on the ground that the relevant legislation did not allow for such a practice. Nevertheless, it was mentioned that given his particular situation, he could benefit from the Reward Regulation, if he met the conditions.
The reward system in penitentiary institutions is predicated upon the opinion reached as a result of the evaluation of the general situations, behaviours and attitudes of prisoners. The mere fact that the administration and the execution judge stated that he could benefit from the Reward Regulation was not considered as an effective remedy by the applicant. As a matter of fact, according to the said Regulation, it was a temporary practice that non-contact visits could be replaced by contact visits. Thus, it had not been sufficient to specify that the applicant could benefit from the reward system to continue his communication with his child suffering from Down syndrome.
In the present case, the public authorities should have taken into consideration the fact that the child who was 90 percent disabled and suffering from Down syndrome could not properly enjoyed his right to non-contact visit and that it would be to his best interest to be allowed to visit his imprisoned father under more special conditions.
The interference with the applicant’s right to respect for his family life upon rejection of his request for an opportunity to benefit more effectively from the right to have contact visit by virtue of his special situation had not been based on relevant and sufficient grounds.
It has been concluded that the relevant legal provisions were interpreted narrowly and restrictively and that the impugned interference had not been proportionate or necessary in a democratic society in terms of ensuring minimum family relationships.
Consequently, the Court has found a violation of the right to respect for family life safeguarded by Article 20 of the Constitution.
