CASE OF MESUT YURTSEVER AND OTHERS v. TURKEY
Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to receive ideas;Freedom to receive information);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano
A. Mr Mesut Yurtsever (application no. 14946/08) 5. The applicant was born in 1974. When his application was lodged he was being held in the F-type prison in Bolu. 6. On 25 June 2007, while the applicant was being held in anther prison – the F-type prison in Tekirdağ – that prison’s education board decided not to deliver the 18, 19, 20, 21, 22, 23 and 24 June 2007 editions of the Azadiya Welat daily newspaper to the applicant or to other prisoners. They based their decision on section 62 § 3 of Law No. 5275 on the Execution of Sentences and Preventive Measures (“Law No. 5275”), which provides that no publication containing information, articles, photographs and comments which are obscene or liable to jeopardise prison security should be delivered to convicted prisoners. The board argued that the non-delivered publications were in the Kurdish language, that the prison had no staff able to understand Kurdish, that, furthermore, there were several dialects of that language and that it had therefore been impossible to have the publications in question translated. They consequently considered it impossible to ascertain whether those publications fulfilled the conditions laid down in the section of the relevant law. 7. On 28 June 2007 the applicant appealed against that decision. 8. On 22 October 2007, ruling on the basis of the case file, the Tekirdağ post-sentencing judge dismissed that appeal. He adjudicated in the light of the State Prosecutor’s opinion that in order to assess the conformity with section 62 § 3 of Law No. 5275 of publications in a language other than the official language, a translation of those publications was required, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellant and that consequently, the appeal had to be dismissed. 9. On 30 October 2007 the applicant applied to have that decision set aside, submitting that the prison administration had suspended the delivery to the prison of the Azadiya Welat newspaper, which in his submission was widely distributed outside the prison, on the ground that it had no staff who understood Kurdish. He requested the setting aside of the post-sentencing judge’s decision declaring the measure consistent with the law, because in his view that measure would prevent the newspaper from being distributed inside the prison, as had previously been normal practice. 10. On 8 November 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, concluded that the impugned decision was not incompatible in procedural or legal terms, and dismissed the application. 11. The applicants were born in 1982, 1980, 1973 and 1973 respectively. When their application was lodged they were held in the F-type prison in Tekirdağ. 12. On 28 May 2007 the Tekirdağ prison education board, drawing on section 62 of Law No. 5275, decided not to deliver to the applicants the 22, 23, 24, 25, 26, 27 and 28 June 2007 editions of the Azadiya Welat daily newspaper on the grounds that they were in the Kurdish language and that the prison had no staff capable of translating that language. 13. On 4 June 2007 the applicants appealed against that decision. 14. On 10 August 2007, ruling on the basis of the State Prosecutor’s opinion that the education board’s decision had been justified, the Tekirdağ post-sentencing judge dismissed that appeal. 15. On 21 August 2007 Mr Atabey and Mr Çiftçi and on 23 August 2007 Mr Yurtsever and Mr Şaka, applied to have that decision set aside. 16. On 7 September 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, dismissed that application on the grounds that the impugned decision had been unobjectionable in procedural and legal terms. 17. The applicants were born in 1983. When their application was lodged they were held in the F-type prison in Tekirdağ. 18. On 9 July 2007 the prison education board decided not to deliver the 2, 3, 4, 5, 6, 7 and 8 July 2007 editions of the Azadiya Welat daily newspaper to the applicants. They based their decision on section 62 § 3 of Law No. 5275. The Board emphasised that the publications were in Kurdish and that the prison had no staff who understood Kurdish, so that, in the Board’s view, it was impossible to have books, newspapers and magazines in that language translated and, consequently, to ascertain whether such publications fulfilled the conditions laid down in the section of the relevant law. 19. On 10 July 2007 the applicants appealed against that decision. In a letter sent the same day to the Tekirdağ post-sentencing judge, Mr Cengiz submitted, inter alia, that no seizure order had been made in respect of the editions of the daily newspaper in question and that it had been absurd to request the translation of the newspaper since it had been on sale nationwide and was subject to statutory review. Moreover, he contended that the decision appealed against was unlawful. 20. Mr Ergezen sent a letter on 18 July 2007 to the Tekirdağ postsentencing judge alleging that the ban on delivery of publications in Kurdish to the prison had been lifted five months previously and that the prison authorities’ argument to the effect that there had been no staff who understood Kurdish was implausible. He also stated that the inmates of other F-type prisons had been authorised to receive such publications, so that the prison authorities’ practice had to be deemed arbitrary. 21. On 23 October 2007 the Tekirdağ post-sentencing judge dismissed the appeal on the basis of the case file. He adjudicated in the light of the State Prosecutor’s opinion that in order to assess the conformity with section 62 § 3 of the relevant law of publications in a language other than the official language a translation of those publications was required, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellant and that consequently, the appeal had to be dismissed. 22. On 1 November 2007 the applicants appealed against that decision. Mr Ergezen requested the lifting of the prohibition in issue. Mr Cengiz submitted that the newspaper in question had been distributed under the supervision of the Prosecutor responsible for the press and that the lack of any judicial proceedings or seizure order in respect of the newspaper demonstrated that it was unobjectionable. He therefore considered that access should be permitted to the publication. 23. On 8 November 2007, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, the Assize Court, drawing on the case file and having taken cognisance of the State Prosecutor’s opinion, dismissed that application on the grounds that the impugned decision had been unobjectionable in procedural and legal terms. 24. The applicants were born in 1974 and 1985 respectively. When their application was lodged they were being held in the F-type prison in Tekirdağ. 25. On 25 June 2007 the prison education board, drawing on section 62 § 3 of Law No. 5275, decided not to deliver the 18, 19, 20, 21, 22, 23 and 24 June 2007 editions of the Azadiya Welat daily newspaper to the applicants. The Board explained that the publications were in the Kurdish language, that the prison had no staff who understood Kurdish, that, furthermore, there were several dialects of that language, that it had therefore been impossible to have the publications in question translated, and that consequently there was no way of ascertaining whether those publications fulfilled the conditions laid down in the relevant section of Law No. 5275. 26. On 28 June 2007 the applicants appealed against that decision. Mr Abo sent a letter on the same day to the Tekirdağ post-sentencing judge complaining that he had been denied access to the editions in question, adding that the prison authorities’ decision had been geared to banning the daily newspaper and was unlawful. 27. In a letter of 4 July 2007 Mr Oğurtan informed the Tekirdağ postsentencing judge he had been unjustifiably deprived of the Azadiya Welat newspaper since 18 June 2007. He requested that the newspaper be delivered to him in the standard manner in future. 28. On 22 October 2007, ruling on the basis of the case file, the Tekirdağ post-sentencing judge dismissed Mr Oğurtan’s appeal on the ground that the impugned decision had been unobjectionable in procedural and legal terms. He adjudicated in the light of the State Prosecutor’s opinion to the effect that in order to assess the conformity with section 62 § 3 of the relevant law of publications in a language other than the official language, a translation of those publications was required, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellant and that the measure adopted by the prison authorities had consequently been justified. 29. On 26 October 2007 Mr Oğurtan wrote to the Tekirdağ Assize Court to complain that he was no longer in receipt of the Azadiya Welat newspaper and that his appeal to the post-sentencing judge on that matter had been unsuccessful. He requested that the practice in question, which he described as undemocratic, be discontinued and that the newspaper in question be delivered to him in the standard manner. 30. On 1 November 2007 Mr Abo wrote to the Tekirdağ Assize Court. He submitted that Azadiya Welat was a newspaper which was subject to the same kind of review as all other organs of the press. The lack of any judicial proceedings or of a ban against that daily newspaper was sufficient on its own to demonstrate that it raised no problems and that he should therefore have access to it. He consequently requested the setting aside of the postsentencing judge’s decision and its replacement by a decision to resume deliveries of the newspaper to him. 31. On 8 November 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the request. 32. The applicants were born in 1979 and 1976 respectively. When their application was lodged they were being held in the prison F-type in Tekirdağ. 33. On 28 June 2007 the Tekirdağ prison education board decided not to deliver to the applicants the 19, 20, 21, 22, 23 24 and 25 June 2007 editions of the Azadiya Welat daily newspaper on the grounds that they were in the Kurdish language and that the prison had no staff capable of translating that language. 34. On 5 July 2007 Mr Kaya wrote to the Tekirdağ post-sentencing judge to challenge that decision and to request the delivery of the newspaper in question. 35. On 9 July 2007 the applicants lodged an appeal against the impugned decision. 36. On 22 October 2007, ruling on the basis of the case file, the Tekirdağ post-sentencing judge dismissed that appeal on the grounds that the impugned decision had been unobjectionable in procedural and legal terms. He adjudicated in the light of the State Prosecutor’s opinion that in order to assess the conformity with section 62 § 3 of the relevant law of publications in a language other than the official language, a translation of those publications was required, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellants and that the measure adopted by the prison authorities had consequently been justified. 37. On 26 October and 30 October 2007 respectively Mr Abdullah Günay and Mr Mehmet Ali Kaya appealed against that decision. In a letter to the Assize Court in Tekirdağ, Mr Kaya pointed out that the refusal to deliver the Azadiya Welat newspaper to him was arbitrary and requested delivery of the latter, which he said was published in accordance with the relevant legislation. 38. On 8 November 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the appeal. 39. The applicants were born in 1979 and 1986 respectively. When their application was lodged they were being held in the F-type prison in Tekirdağ. 40. On 3 July 2007 the Tekirdağ prison education board decided not to deliver the 26, 27, 28, 29 and 30 June 2007 editions of the Azadiya Welat daily newspaper to the applicants on the grounds that they were in the Kurdish language and that the prison had no staff capable of translating that language. 41. On 16 July 2007 the applicants appealed against that decision. 42. On 23 October 2007, ruling on the basis of the case file, the Tekirdağ post-sentencing judge dismissed that appeal, finding that the impugned decision had been unobjectionable in procedural and legal terms. He adjudicated in the light of the State Prosecutor’s opinion that in order to assess the conformity with section 62 § 3 of Law No. 5275 of publications in a language other than the official language, a translation of those publications was required, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellants and that the measure adopted by the prison authorities had consequently been justified. 43. On 26 October and 30 October 2007 respectively, Mr Abdullah Günay and Mr Adem Yüksekdağ appealed against that decision. Mr Günay sent a letter to the Assize Court complaining that the post-sentencing judge had joined forces with the prison authorities to impede his right to receive information and had therefore infringed that right, as enshrined in the Convention. He submitted that the newspaper in question was published in conformity with the relevant legislation and that it was therefore unnecessary to translate it, because if its content had been unlawful it would have been subject to a seizure order. He added that the right to read a newspaper in Kurdish, his mother tongue, was a natural right. 44. On 8 November 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the appeal. 45. The applicant was born in 1979. When his applications were lodged he was held in the F-type prison in Tekirdağ. 46. On 6 September 2007 the Tekirdağ prison education board decided not to deliver to the applicant the 28, 29, 30 and 31 August 2007 editions of the Azadiya Welat daily newspaper on the grounds that it did not understand their content and could not have them translated, also having regard to a decision given on 9 August 2007 by the Tekirdağ post-sentencing judge. 47. On 13 September 2007 the applicant appealed against that decision. 48. On 5 November 2007, ruling on the basis of the case file, the Tekirdağ post-sentencing judge dismissed that appeal, finding that the impugned decision had been unobjectionable in procedural and legal terms. He adjudicated in the light of the State Prosecutor’s opinion to the effect that in order to assess the conformity with section 62 § 3 of Law no. 5275 of publications in a language other than the official language, a translation of those publications was required, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellant and that the education board’s decision had consequently been justified. 49. On 8 November 2007 the applicant appealed against the postsentencing judge’s decision. 50. On 27 November 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the applicant’s appeal. 51. On 31 August 2007, referring to a decision given by the Tekirdağ post-sentencing judge on 9 August 2007, the Tekirdağ prison education board decided not to hand over to the applicants the 21, 22, 23, 24, 25, 26, 27 and 28 August 2007 editions of the Azadiya Welat daily newspaper on the grounds that it could not understand their content or have them translated. 52. On 7 September 2007 the applicant appealed against that decision. 53. On 5 November 2007, ruling on the basis of the case file, the Tekirdağ post-sentencing judge dismissed that appeal, finding that the impugned decision had been unobjectionable in procedural and legal terms. He adjudicated in the light of the State Prosecutor’s opinion to the effect that in order to assess the conformity with section 62 § 3 of Law no. 5275 of publications in a language other than the official language, a translation of those publications was required, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellant and that the education board’s decision had consequently been justified. 54. On 8 November 2007 the applicant appealed against the postsentencing judge’s decision. 55. On 28 November 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the latter appeal. 56. The applicants were born in 1979, 1978 and 1980 respectively. When their application was lodged they were being held in the F-type prison in Tekirdağ. 57. On 13 September 2007 the Tekirdağ prison education board decided not to deliver the 4, 5, 6, 7, 8 and 9 September 2007 editions of the Azadiya Welat daily newspaper to the applicants on the grounds that they were in the Kurdish language and that the prison had no staff capable of translating that language. The Board also had regard to the fact that the Tekirdağ postsentencing judge had adjudicated on other editions of that newspaper on 9 August 2007, as had the Assize Court on 7 September 2007. 58. On 24 September 2007 the applicants appealed against that decision. 59. On 5 November 2007, ruling on the basis of the case file, the Tekirdağ post-sentencing judge dismissed that appeal, finding that the impugned decision had been unobjectionable in procedural and legal terms. He adjudicated in the light of the State Prosecutor’s opinion to the effect that in order to assess the conformity with section 62 § 3 of the Law no. 5275 of publications in a language other than the official language, a translation of those publications was required, that the prison authorities had no budget for that purpose, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellants and that the education board’s decision had consequently been justified. 60. Mr Günay appealed against that decision by the post-sentencing judge on 8 November 2007, and Mr Adıyaman and Mr Şaka followed suit on 12 November 2007. 61. On 28 November 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the latter appeal. 62. The applicant was born in 1983. When his applications were lodged he was being held in the F-type prison in Tekirdağ. 63. On 2 July 2007 the prison education board decided not to deliver the 25, 26, 27, 28, 29 and 30 June and 1 July 2007 editions of the Azadiya Welat daily newspaper to the applicant, pursuant to section 62 § 3 of Law No. 5275, on the grounds that that the publications were in Kurdish and that the prison had no staff who understood that language, making it impossible to secure a translation in order to ascertain whether the content of the newspapers complied with the aforementioned legislative provision. 64. On 3 July 2007 the applicant appealed against that decision, submitting, inter alia, that the editions of the newspaper in question had not been the subject of any judicial seizure order and therefore ought to have been delivered to him. He further submitted that he had been in receipt of the newspaper for four months without any problem before being deprived of it, and that the decision taken by the prison authorities had been unlawful. He consequently requested that the impugned decision be set aside and he be allowed to receive the newspaper in question. 65. On 23 October 2007, ruling on the basis of the case file, the Tekirdağ post-sentencing judge dismissed that appeal, finding that the impugned decision had been unobjectionable in procedural and legal terms. He adjudicated in the light of the State Prosecutor’s opinion to the effect that in order to assess the conformity with section 62 § 3 of the relevant law of publications in a language other than the official language, a translation of those publications was required, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellant and that the measure adopted by the prison authorities had consequently been justified. 66. On 1 November 2007 the applicant appealed against that decision. He submitted that the newspaper in question had been published in accordance with the law, that it had been subject to review by the Prosecutor responsible for the press before distribution and that, in the absence of any judicial proceedings or seizure order against it, the newspaper could not be deemed problematic. He consequently requested access to the impugned editions of the newspaper. 67. On 8 November 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the applicant’s appeal. 68. On 16 July 2007 the prison education board decided not to deliver the 9, 10, 11, 12, 13, 14 and 15 July 2007 editions of the Azadiya Welat daily newspaper to the applicant, pursuant to section 62 § 3 of Law No. 5275, on the grounds that that the publications were in Kurdish and that the prison had no staff who understand that language, making it impossible to secure a translation in order to ascertain whether the content of the newspapers complied with the aforementioned legislative provision. 69. On 17 July 2007 the applicant appealed against that decision. He sent a letter dated 19 July 2007 to the Tekirdağ post-sentencing judge stating that the impugned newspaper had not been the subject of any seizure order, and that it was both pointless and unlawful to demand a translation of its content when it had already been subject to statutory review. 70. On 23 October 2007, ruling on the basis of the case file, the Tekirdağ post-sentencing judge dismissed that appeal, finding that the impugned decision had been unobjectionable in procedural and legal terms. He adjudicated in the light of the State Prosecutor’s opinion to the effect that in order to assess the conformity with section 62 § 3 of the relevant law of publications in a language other than the official language, a translation of those publications was required, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellant and that the measure adopted by the prison authorities had consequently been justified. 71. On 1 November 2007 the applicant appealed against that decision, submitting, inter alia, that the newspaper in question had been subject to review by the Prosecutor responsible for the press before distribution. The absence of any judicial proceedings or seizure order against it proved that the newspaper did not raise any problems. 72. On 8 November 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the latter appeal. 73. On 4 September 2007the prison education board decided not to deliver the 27, 28, 29, 30 and 31 August and 1 and 2 September 2007 editions of the Azadiya Welat daily newspaper to the applicant, pursuant to section 62 § 3 of Law No. 5275, on the grounds that that the publications were in Kurdish and that the prison had no staff who understand that language, making it impossible to secure a translation in order to ascertain whether the content of the newspapers complied with the aforementioned legislative provision. 74. The applicant appealed against that decision. 75. On 5 November 2007, ruling on the basis of the case file, the Tekirdağ post-sentencing judge dismissed that appeal, finding that the impugned decision had been unobjectionable in procedural and legal terms. He adjudicated in the light of the State Prosecutor’s opinion to the effect that in order to assess the conformity with section 62 § 3 of the Law no. 5275 of publications in a language other than the official language, a translation of those publications was required, that the prison authorities had no budget for that purpose, that there was no legal provision requiring the prison to finance the translation costs, that such expenses had not been covered by the appellant and that the education board’s decision had consequently been justified. 76. On 12 November 2007 the applicant appealed against the postsentencing judge’s decision. He submitted, inter alia, that the newspaper in question had been published in accordance with a procedure prescribed by law and that if the newspaper had been in an unlawful situation the Prosecutor responsible for the press would have taken the necessary action. The applicant submitted that the newspaper had not been the subject of any ban or seizure order. Consequently, he requested that he be given access to the publication. 77. On 20 November 2007 the Tekirdağ Assize Court, ruling on the basis of the case file and having taken cognisance of the State Prosecutor’s opinion, found that the impugned decision had been unobjectionable in procedural and legal terms and dismissed the latter appeal. ...