CASE OF NUSRET KAYA AND OTHERS v. TURKEY [Extracts]
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for family life);Non-pecuniary damage - award
András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paulo Pinto De Albuquerque
5. The applicants were born in 1972, 1965, 1966, 1974 and 1976 respectively. 6. When their application was lodged the applicants were being held at the E-type prison of Muş. 7. During their previous detention in another prison – the H-type prison of Erzurum – they had applied to the sentence-execution judge of Erzurum seeking the lifting of the restrictions that the prison authorities imposed, according to them, by preventing them from using the Kurdish language in their telephone conversations. 8. On 29 May 2006, based on the case file, the sentence-execution judge of Erzurum dismissed their application. In his reasoning he began by stating that, while Article 22 of the Constitution and Article 8 of the European Convention on Human Rights protected the freedom of correspondence, those two Articles also provided for limitations of such freedom on grounds such as national security and public order. He further mentioned that Law no. 5275 on the enforcement of sentences and preventive measures (“Law no. 5275”) provided that telephone conversations had to be conducted under the conditions and according to the principles laid down in the Rules on the enforcement of sentences and preventive measures (“the Rules”). He noted that the prison authorities had not yet received any reply to their request for it to be ascertained, under Rule 88/2 (p) of the Rules, whether or not the individuals with whom the applicants wished to speak understood Turkish. He pointed out in this connection that the question remained to be clarified and that the applicants’ action thus concerned the general practice of the prison authorities which, in his view, was not in breach of the law. He concluded that the prison authorities had acted in conformity with Law no. 5275 and Rule 88/2 (p). 9. On 11 May 2006 the applicants requested that this decision be set aside. 10. On 12 July 2006, based on the case file, the Erzurum Assize Court dismissed the applicants’ action to have the decision set aside, finding that the sentence-execution judge had not acted in breach of the procedure or of the law. 11. At the time when they lodged their applications, the applicants were being held at the F-type prison of Bolu. 12. While in that prison, they applied on 5 May 2008 to the sentence-execution judge of Bolu seeking the lifting of the restrictions that, according to them, the prison authorities imposed by preventing them from using the Kurdish language in their telephone conversations. 13. On 13 May 2008, based on the case file, the sentence-execution judge of Bolu dismissed the application, finding that the practice of the prison authorities was in conformity with both the procedure and the law. In his decision, he noted that the rules on telephone conversations between convicted and remand prisoners and their relatives had been revoked on 17 February 2007. He indicated that those rules did not contain any provision about the handling of a request concerning a telephone conversation in a language other than Turkish. He explained that Law no. 5275 had come into force and that Rule 88 laid down new principles that had to be taken into account. He set out all the conditions provided for in Rule 88 as regards the supervision of telephone conversations in prisons, particularly the principle that telephone conversations had to be conducted in Turkish, with the exception of those cases in which the convicted prisoner and/or the person telephoned or telephoning did not understand that language. He pointed out that, in such cases, the Rules required the inmate to indicate on the telephone-call form that the other person did not understand Turkish. He added that, when the prison authorities found it necessary, research would be carried out – at the inmate’s expense – to verify the information given on the form, following which the inmate could be authorised to speak in Kurdish. He further stated that the inmate was required to begin a telephone conversation by stating his or her forename and surname, then to ask the other person to give his or her forename, surname and telephone number. In the judge’s view, that obligation meant that, save in certain situations, telephone conversations had to be conducted in Turkish. 14. On 26 May 2008 Mr Yurtsever applied to have that decision set aside. He argued that his mother tongue was Kurdish and that it was therefore understandable for him to use that language to speak to his mother on the telephone. He also stated that this had been the case for the past five years. Lastly, he complained about the fact that the cost of verifying the information was charged to the requesting inmate. 15. On 27 May 2008 Mr Bozçalı also applied to have the sentence-execution judge’s decision set aside, arguing that to communicate, correspond and live in accordance with one’s cultural identity was a fundamental right. 16. On 12 June 2008, on the basis of the case file, the Bolu Assize Court dismissed the applicants’ action. It found that the prison authorities and the sentence-execution judge had not acted in breach of the procedure or of the law. 17. When he lodged his application, the applicant was being held at the F-type prison in Bolu. 18. While in that prison, on 30 May 2008, he complained to the sentence-execution judge of Bolu that he was obliged to use Turkish when speaking to his relatives on the telephone and that the prison authorities refused to allow him to use the Kurdish language in those conversations. 19. On 10 June 2008, on the basis of the case file, the sentence-execution judge of Bolu rejected the application, finding that the practice of the prison authorities was in conformity with both the procedure and the law. In his decision, he noted that the rules on telephone conversations between convicted and remand prisoners and their relatives had been revoked on 17 February 2007. He indicated that those rules did not contain any provision about the handling of a request concerning a telephone conversation in a language other than Turkish. He explained that Law no. 5275 had come into force and that Rule 88 laid down new principles that had to be taken into account. He set out all the conditions provided for in that Rule as regards the supervision of telephone conversations in prisons, particularly the principle that telephone conversations had to be conducted in Turkish, with the exception of those cases in which the convicted prisoner and/or the person telephoned or telephoning did not understand that language. He pointed out that, in such cases, the Rules required the inmate to indicate on the telephone-call form that the other person did not understand Turkish. He added that, when the prison authorities found it necessary, research would be carried out – at the inmate’s expense – to verify the information given on the form, following which the inmate could be authorised to speak in Kurdish. He further stated that the inmate was required to begin a telephone conversation by stating his or her forename and surname, then to ask the other person to give his or her forename, surname and telephone number. In the judge’s view, that obligation meant that, save in certain situations, telephone conversations had to be conducted in Turkish. 20. On 20 June 2008 the applicant applied to have that decision set aside. 21. On 4 July 2008 the Bolu Assize Court dismissed the applicant’s action, finding that the prison authorities and the sentence-execution judge had not acted in breach of the procedure or of the law. ...