CASE OF GÜLMEZ v. TURKEY
Violation of Art. 6-1;Preliminary objection joined to the merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 8;Remainder inadmissible;Non-pecuniary damage - award
Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria
4. The applicant was born in 1965 and is serving his prison sentence in the Ankara Sincan F-type prison. 5. In March 2000, the applicant, who was accused of murder, armed robbery and membership of an illegal organisation, namely the TKP-ML (Türkiye Komünist Partisi / Marksist Leninist, Turkish Communist Party / Marxist Leninist), was placed in detention on remand in the Nevşehir prison. 6. On 19 December 2000 the applicant was transferred to the Ankara Sincan F-type prison. 7. On 2 January 2001 the Disciplinary Board of the F-type prison (“the Board”) found the applicant guilty of having damaged prison property and, pursuant to Article 157 of the Regulations on the administration of penitentiary institutions and the execution of sentences (“the Regulations”), prohibited him from receiving visitors for a period of three months. According to the Board’s decision, on 24 December 2000 the applicant had broken the ventilation in his ward and written the name of an illegal organisation on his wall. The decision of the Board was reviewed and upheld by the Ankara State Security Court, in accordance with Article 116/5 of the Code of Criminal Procedure. The court delivered its decision on the basis of the case file. It also referred to the applicant’s statement in which he had admitted committing these acts in protest against the general situation in Ftype prisons. The penalty was enforced between 25 January 2001 and 25 April 2001. 8. On 13 March 2001 the Board once again imposed a disciplinary sanction on the applicant and prohibited him from receiving visits for two months. According to the Board’s decision, on 15 February 2001, following a meeting with his lawyer, the applicant had refused to be searched by prison officers and had shouted slogans. In his defence submissions, the applicant admitted that he had resisted the prison officers when he was ordered to take off his shoes. On 28 March 2001 the Board’s decision was reviewed and upheld by the Ankara State Security Court. The applicant filed an objection with the public prosecutor against this decision under Article 162 of the Regulations. On 2 May 2001 the public prosecutor rejected the applicant’s request. The penalty was enforced between 27 April and 27 June 2001. 9. On 17 May 2001 the Board found the applicant guilty of having damaged prison property, possessing a sharp cutting instrument made from a prison bed, and having an excessive amount of money in his possession. It accordingly prohibited him from receiving visitors for a period of three months. In the meantime, Law no. 4675 entered into force, which stipulated that decisions delivered by Disciplinary Boards were to be reviewed by the Enforcement Judge. Accordingly, on 21 June 2001, the decision of 17 May 2001 was reviewed. The judge upheld the Board’s decision, on the basis of the case file and taking into account the applicant’s statement. This decision was served on the applicant on 3 July 2001 and the penalty was enforced between 31 July and 30 October 2001. 10. On 21 May 2001 the applicant received a reprimand for having chanted slogans in the prison. The Board held that the applicant should be warned that he would receive heavier penalties if he continued committing similar offences. 11. On 18 and 22 May 2001 respectively, the prison guards prepared two incident reports according to which the applicant had damaged public property by breaking the loudspeaker in his cell and had incited other inmates to disturb order by chanting slogans. In his statement dated 25 May 2001, the applicant admitted that he had chanted slogans but denied that he had damaged the loudspeaker in his cell. On 29 May 2001 the Board found the applicant guilty and prohibited him from receiving visitors and from sending and receiving letters for a period of a month. On 21 June 2001 the decision was reviewed and upheld by the Enforcement Judge. That decision was served on the applicant on 29 June 2001 and he filed an objection against it. On 4 July 2001 the Enforcement Court dismissed the applicant’s objection and the penalty was enforced between 29 June and 29 July 2001. 12. On 6 June 2001 the applicant was caught by prison guards as he was climbing onto the window bars of his cell. In his statement dated 14 June 2001, the applicant maintained that he had climbed up to reach a newspaper which was allegedly on the roof. On 18 June 2001 the applicant was once again prohibited from receiving visitors for three months by the Board for having climbed onto the window bars. On 2 July 2001 the penalty was reviewed and upheld by the Enforcement Judge. That decision was served on the applicant on 1 November 2001. 13. These Regulations provide as follows: “Those whose acts constitute a breach of convicts’ obligations arising from laws, regulations and orders, or are prohibited, shall be liable to one of the following disciplinary penalties according to the nature and severity of the circumstances: 1– Reprimand; 2– Deprivation of the right to receive visitors; 3– Deprivation of the right to send and receive letters; 4– Solitary confinement. ... A prisoner may be simultaneously sentenced to the penalties of a deprivation of the right to receive visitors and the right to send and receive letters. ...” “The penalty of a deprivation of the right to receive visitors deprives convicts of the right to receive visitors during the visiting hours set out in the internal regulations. This penalty cannot be imposed on a prisoner for more than three months.” “Before a disciplinary sanction is imposed, a prisoner who is charged with a disciplinary offence shall be heard with regard to the acts of which he is accused.” “Disciplinary penalties imposed by the Disciplinary Board shall be executed promptly. If the director of the institution or at least two members of the disciplinary board, or the convict, consider that the decision concerning a disciplinary penalty is erroneous or insufficient, he or they can file an objection within twenty-four hours with the public prosecutor’s office. Decisions taken by the public prosecutor shall be final.” “Decisions concerning disciplinary penalties and measures [in respect of remand prisoners] shall be enforced following the approval of the judge.” 14. Section 4 of Law no. 4675, which lays down the competence of Enforcement Judges, provides that objections filed against disciplinary sanctions shall be dealt with by such a judge. Article 5 provides that the prisoner concerned, his/her close relative or legal representative, can file an objection against a disciplinary sanction. Furthermore, Article 6 stipulates that the Enforcement Judge shall decide on the basis of the case file, without holding a hearing. This judge may conduct an examination ex officio or request further information from the parties if the interests of justice so require. An appeal lies against the decisions of Enforcement Judges to the nearest Assize Court. 15. This legislation lays down new provisions on prison discipline, including a list of punishable acts, the penalties relating to them and the procedure to be followed. In one of its reports (CPT/inf (2008) 13), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment examined the legislation and found that these new provisions did not call for any particular comment. However, it raised two questions concerning disciplinary procedures, namely lawyers’ participation in disciplinary proceedings, and its corollary, lawyers’ access to their clients’ disciplinary file. Furthermore, the CPT queried whether the current provisions of the legislation rule out the involvement of a lawyer during disciplinary proceedings. In this context, it referred to Rule 59 of the European Prison Rules (see the next paragraph). 16. The recommendation of the Committee of Ministers to Member States of the Council of Europe on the European Prison Rules (Rec (2006)2, adopted on 11 January 2006 at the 952nd meeting of the Ministers’ Deputies), insofar as relevant, reads as follows: “Discipline and punishment 56.1 Disciplinary procedures shall be mechanisms of last resort. ... 57.2 National law shall determine: a. the acts or omissions by prisoners that constitute disciplinary offences; b. the procedures to be followed at disciplinary hearings; c. the types and duration of punishment that may be imposed; d. the authority competent to impose such punishment; and e. access to and the authority of the appellate process. 58. Any allegation of infringement of the disciplinary rules by a prisoner shall be reported promptly to the competent authority, which shall investigate it without undue delay. 59. Prisoners charged with disciplinary offences shall: a. be informed promptly, in a language which they understand and in detail, of the nature of the accusations against them; b. have adequate time and facilities for the preparation of their defence; c. be allowed to defend themselves in person or through legal assistance when the interests of justice so require; d. be allowed to request the attendance of witnesses and to examine them or to have them examined on their behalf; and e. have the free assistance of an interpreter if they cannot understand or speak the language used at the hearing. 60.1 Any punishment imposed after conviction of a disciplinary offence shall be in accordance with national law. 60.2 The severity of any punishment shall be proportionate to the offence. ... 60.4 Punishment shall not include a total prohibition on family contact. ... 61. A prisoner who is found guilty of a disciplinary offence shall be able to appeal to a competent and independent higher authority.”