CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 14 novembre 2023

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font-weight:bold; color:#424242 } .sBAADFE8C { border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top }   SECOND SECTION CASE OF CANAVCI AND OTHERS v. TÜRKİYE (Applications nos. 24074/19 and two others – see appended list)   JUDGMENT   Art 8 • Private life • Art 15 • Derogation in time of emergency • Monitoring and recording of the applicants’ meetings with their lawyers while in prison, pursuant to a legislative decree adopted under the state of emergency declared in the aftermath of the coup attempt of 15 July 2016 • Application of impugned measures to third applicant not based on a public prosecutor’s decision as required by the decree • Lack of individualised grounds in decisions to apply impugned measures to remaining applicants • Open-ended application of measures undermined legal certainty • Absence of sufficient legislative safeguards against abuse and arbitrariness not justified by respondent State’s derogation • Judicial review not adequate or effective • Interference “not in accordance with the law”   STRASBOURG 14 November 2023   FINAL   08/04/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Canavcı and Others v. Türkiye, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Arnfinn Bårdsen , President ,   Egidijus Kūris,   Pauliine Koskelo,   Saadet Yüksel,   Lorraine Schembri Orland,   Frédéric Krenc,   Diana Sârcu , judges , and Hasan Bakırcı, Section Registrar, Having regard to: the applications (nos.   24074/19, 44839/19 and 9077/20) against the Republic of Türkiye lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Turkish nationals, Mr Mehmet Ali Canavcı (“the first applicant”), Mr Ramazan Çaylı (“the second applicant”) and Mr   Harun Altun (“the third applicant”; together “the applicants”), on the various dates indicated in the appended table; the decision to give notice to the Turkish Government (“the Government”) of the complaints concerning Articles 8 and 13 of the Convention, and to declare the remainder of the applications inadmissible; the parties’ observations; Having deliberated in private on 14 November 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The present case concerns the monitoring and recording of the applicants’ meetings with their lawyers while they were in prison, pursuant to a legislative decree which had been adopted under the state of emergency declared in the aftermath of the coup attempt of 15 July 2016. The applicants complain of a violation of Articles 8 and 13 of the Convention. THE FACTS 2.     The applicants’ details and the names of their representatives are listed in the appendix. 3.     The Government were represented by their Agent, Mr   Hacı   Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye. BACKGROUND TO THE CASE 4.     During the night of 15 to 16 July 2016 a group of persons in the Turkish armed forces launched a coup d’état aimed at overthrowing the democratically elected parliament, government and President of the Republic. During that night of violence more than 250   individuals were killed and over 2,500   were injured. 5.     On 20 July 2016 the Turkish government declared a state of emergency for a three-month period starting on 21 July 2016. The state of emergency was subsequently extended every three months by the Council of Ministers, chaired by the President. 6.     On 21 July 2016 the Turkish authorities notified the Secretary General of the Council of Europe of a derogation from the Convention in respect of Article   15. 7.     After the attempted military coup, public prosecutors’   offices throughout Türkiye initiated criminal proceedings against those who had been directly involved in the attempted coup and also against those who had not been directly involved but were suspected of being part of the structural organisation of the “Fetullahist Terror Organisation/Parallel State Structure” (Fetullah Terör Örgütü/Paralel Devlet Yapılanması – hereinafter “the FETÖ/PDY”), which was considered by the national authorities to have instigated the coup attempt. 8.     During the state of emergency, the Council of Ministers, chaired by the President, enacted thirty-seven emergency legislative decrees (nos.   667 ‑ 703) under Article 121 of the Constitution. The Government explained that Emergency Legislative Decree no. 667, which came into force on 23   July 2016, had set forth measures during the state of emergency relating to the fight against terrorism and the coup attempt, including measures under section 6 concerning investigations and criminal proceedings in respect of certain offences. 9.     On 18 July 2018 the state of emergency was lifted. APPLICATION N o . 24074/19 The first applicant’s detention and the order for the monitoring of meetings with his lawyer 10.     On 21 July 2016 the Bakırköy Magistrate’s Court ordered the first applicant’s pre-trial detention for membership of the FETÖ/PDY and for attempting to overthrow the government of the Republic of Türkiye or preventing it wholly or partly from performing its duties. On the same day, he was placed in Silivri Prison. 11.     On 25 July 2016, in a notice issued to the Silivri Prison administration, the Bakırköy Chief Public Prosecutor’s Office stated that in view of the structure of the FETÖ/PDY, its communication methods and the fact that some members of that organisation had still not been captured, meetings with lawyers could endanger the security of the nation and the penal institutions, as the meetings were likely to be used for transmitting secret, open or encrypted messages among the members of the organisation, as well as orders from the organisation to its members in detention. The Bakırköy Chief Public Prosecutor’s Office therefore considered that it was necessary to take certain measures under section 6(1)(d) of Emergency Legislative Decree no.   667. 12.     In this connection the Bakırköy Chief Public Prosecutor’s Office ordered the Silivri Prison administration to have an officer monitor meetings between those in detention for membership of the FETÖ/PDY and their lawyers during the state of emergency. On the same ground, the Bakırköy Chief Public Prosecutor’s Office also ordered the audio or video recording of such meetings by means of technical devices. 13.     On 1 February 2017 the first applicant lodged a complaint with the Silivri enforcement judge and requested the lifting of the order for the monitoring and recording of meetings with his lawyer. 14.     On 21 March 2017 the Silivri enforcement judge noted that the subject of the complaint was the decision of the Bakırköy Chief Public Prosecutor’s Office. The judge, citing a lack of jurisdiction to deal with complaints about judicial decisions, rejected the first applicant’s complaint without examining it on the merits. Subsequently, the Silivri Assize Court dismissed an objection lodged by the first applicant against the enforcement judge’s decision, holding that it had been in line with the law and procedure. Individual application to the Constitutional Court 15.     On 18 May 2017 the first applicant lodged an individual application with the Constitutional Court, complaining about the monitoring and recording of his meetings in prison with his lawyer. In his application form he complained, inter alia , of a violation of his right to respect for his private life, referring to Article 8 of the Convention. On that point, he argued that in the absence of a prosecutor’s decision on the matter, the audio and video recording and monitoring by an officer of his meetings in prison with his lawyer, as well as the seizure of documents relating to his defence, had amounted to a violation of his right to respect for his private life. 16.     In a decision of 1 February 2019 (no. 2017/26587), the Constitutional Court examined the first applicant’s individual appeal in the light of the right to a fair trial and dismissed it, holding that he had failed to exhaust domestic remedies. The first applicant’s meetings with his lawyer 17.     The first applicant had nine meetings with his lawyer between 9   August 2016 and 3 July 2017, all of which were the subject of audio and video recordings by means of technical devices. Moreover, those meetings took place with an officer present in the meeting room. 18.     On 18 July 2017 the first hearing was held before the Istanbul Assize Court in the criminal proceedings against the first applicant. During that hearing, he requested that the trial court end the practice of monitoring and recording meetings with his lawyer. The Istanbul Assize Court allowed his request and decided to discontinue the measure in question without providing any justification for its decision. 19.     The applicant had a further twenty-nine meetings with his lawyer. These meetings were neither recorded nor monitored by an officer. APPLICATION N o . 44839/19 The second applicant’s detention and the order for the monitoring of meetings with his lawyer 20.     On 21 July 2016 the Zonguldak Magistrate’s Court ordered the second applicant’s pre-trial detention for membership of the FETÖ/PDY and for attempting to overthrow the government of the Republic of Türkiye or preventing it wholly or partly from performing its duties. On the same day, he was placed in Zonguldak Prison. On 31 July 2016 he was transferred to Kocaeli Prison. 21.     On 2 August 2016 the Zonguldak Chief Public Prosecutor’s Office notified the Kocaeli Prison administration of its decision that meetings between those in detention for certain offences, including membership of a terrorist organisation, and their lawyers were to be monitored by an officer and recorded on audio and video devices throughout the duration of the state of emergency. The Zonguldak Chief Public Prosecutor’s Office based its decision on section 6(1)(d) of Emergency Legislative Decree no.   667. 22.     The Zonguldak Chief Public Prosecutor’s Office considered in its notice that such measures were necessary for the proper conduct of investigations and criminal proceedings and to prevent the transmission of organisational orders and instructions, as well as any attempts to commit further offences or tamper with evidence. 23.     On 8 August 2016 the second applicant lodged a complaint with the Kocaeli enforcement judge and requested the lifting of the order for the monitoring and recording of his meetings. He complained that such a measure interfered with lawyer-client contact and constituted an interference with his right to a fair trial under Article 6 of the Convention. 24.     On 28 September 2016 the Kocaeli enforcement judge rejected the second applicant’s complaint without examining it on the merits, citing a lack of jurisdiction in respect of the prosecutor’s judicial decision, which had essentially concerned the proper conduct of criminal investigations. In the decision, the enforcement judge accepted jurisdiction only as regards the prison administration’s decisions and acts. Subsequently, the Kocaeli Assize Court dismissed an objection lodged by the applicant against the enforcement judge’s decision, holding that it had been in line with the law and procedure. Individual application to the Constitutional Court 25.     On 28 November 2016 the second applicant lodged an individual application with the Constitutional Court, complaining about the monitoring and recording of meetings in prison with his lawyer. In this context, he complained of, inter alia , a violation of his right to respect for his private life, relying on Article 20 of the Turkish Constitution and Article 8 of the Convention. The applicant argued that the measure in question amounted to an interference with the confidentiality of lawyer-client contact. 26.     In a decision of 24 July 2018 (no. 2016/76352), the Constitutional Court examined the second applicant’s complaint in the light of the right to respect for private life. The court dismissed the complaint on the grounds that he had failed to exhaust the available remedies. In its decision the Constitutional Court referred to its case-law, noting in a general manner the requirement of exhausting the available remedies in the judicial system before lodging an individual appeal. The high court did not specify which remedy the applicant had failed to pursue. The second applicant’s meetings with his lawyer 27.     The second applicant had three meetings with his lawyer in Zonguldak Prison without any restrictions. In the following period, he had fifteen meetings with his lawyer in Kocaeli Prison with an officer present. The administration made audio and video recordings of all the meetings. 28.     At the end of the criminal proceedings the applicant was convicted and sentenced to a term of imprisonment. On 2 July 2019, by a decision of the Court of Cassation, his conviction became final on appeal. No information or documents have made available to the Court by the parties indicating that the measures relating to meetings between the applicant and his lawyer were lifted at any point during the criminal proceedings. APPLICATION N o . 9077/20 The third applicant’s detention and the order for the monitoring of his meetings with his lawyer 29.     On 29 August 2016 the Düzce Magistrate’s Court ordered the third applicant’s pre-trial detention for membership of an armed terrorist organisation. On the same day, he was placed in Düzce Prison. 30.     The applicant’s meetings with his lawyer in Düzce Prison were recorded and monitored by an officer. 31.     On 29 June 2018 the third applicant applied to the Düzce Prison administration requesting information as to the grounds for the recording of the meetings with his lawyer. On the same day, the Düzce Prison administration responded to the applicant’s request, notifying him that the recording of the meetings had taken place on the basis of section 6(1)(d) of Emergency Legislative Decree no.   667. 32.     The applicant lodged a complaint with the Düzce enforcement judge against the prison administration’s decision, stating that the measure imposed on him was unlawful and had no legal basis. 33.     On 14 July 2018 the Düzce enforcement judge dismissed the applicant’s complaint, holding that the prison administration’s decision had been in line with the law and procedure. Subsequently, the Düzce Assize Court dismissed an objection lodged by the applicant against the enforcement judge’s decision. Individual application to the Constitutional Court 34.     On 14 September 2018 the third applicant lodged an individual application with the Constitutional Court, complaining about the recording of his meetings in prison with his lawyer. In this connection, he complained of a violation of his right to communication under Article 22 of the Turkish Constitution, asserting that Turkish law did not permit any restriction on detainees’ communication with their lawyers. 35.     In a decision of 21 November 2019 (no. 2018/28341), the Constitutional Court examined the third applicant’s individual application in the light of the right to a fair trial. The Constitutional Court dismissed the application, stating that it could not be concluded that the domestic courts’ decisions in the case had been arbitrary. In addition, the court noted, referring to its case-law, that the other admissibility criteria regulated under Law no.   6216 (on the establishment and rules of procedure of the Constitutional Court) had not been met. The third applicant’s meetings with his lawyer 36.     The third applicant had four meetings with his lawyer in Düzce Prison. The prison administration recorded all the meetings by means of technical devices and monitored them by placing an officer in the meeting room. RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW AND PRACTICE Legal regime governing the state of emergency 37.     For a presentation of the legal regime governing the state of emergency which was declared following the coup attempt of 15 July 2016 and of the notice of derogation which Türkiye transmitted to the Secretary General of the Council of Europe after the declaration of the state of emergency, see Pişkin v. Turkey (no. 33399/18, §§ 32 and 55, 15 December 2020). Law no. 4675 on enforcement judges 38.     Section 4 of Law no. 4675 on enforcement judges lays down the powers of the enforcement courts in ruling on objections concerning,   inter alia , prison authorities’ decisions or actions relating to the execution of sentences, communication of detainees and convicted prisoners with the outside world and the imposition of disciplinary sanctions. Furthermore, section 6 specifies that an enforcement court must give a decision on the basis of the case file after obtaining the written opinion of the relevant public prosecutor and without holding a hearing. The enforcement court may conduct an examination   ex proprio motu   or request further information from the parties if the interests of justice so require. 39.     An objection against the decisions of the enforcement courts lies to the nearest assize court. The assize court examines the objection on points of fact and law without holding a hearing. Law no. 5275 on the enforcement of sentences and preventive measures 40.     The relevant part of section 59 of Law no. 5275, as in force at the material time (as amended by section 5 of Law no. 5351), provided as follows: “... (4)   A lawyer’s documents and files relating to the defence and the records of meetings with his or her client shall not be subject to examination. However, if it emerges from documents or other evidence that visits by lawyers to a person convicted of the offences set out in Article   220 of the Criminal Code or sub-chapters 4 and 5 of Chapter 2 of the Criminal Code are serving as a means of communication with a terrorist organisation or of committing a crime or otherwise jeopardising the security of the prison, the enforcement judge may, on an application by the prosecution, impose [the following measures]: the presence of an officer during the lawyer’s visits; inspection of documents exchanged between the prisoner and his or her lawyers during such visits; and/or the seizure of all or some of those documents by the judge. The parties concerned may appeal against that decision in accordance with Law no.   4675.” 41.     Section 59(4) of Law no. 5275 on the enforcement of sentences and preventive measures (which entered into force on 13 December 2004) was amended by section 6 of Emergency Legislative Decree no.   676, adopted during the state of emergency, published in the Official Gazette on 29 October 2016 and approved by Law no. 7070 of 1   February 2018. By the same legislative decree, several subsections were also added after section 59(4) of Law no. 5275. The relevant part of section 59 of Law no. 5275 provided as follows: “... (4) During the interview, the documents or copies of documents, files and records kept by the convicted person and his or her lawyer regarding the conversations between them shall not be examined; the conversations of the convicted person with his or her lawyer shall not be listened to or recorded. (5) In the event that information, findings or documents are obtained which indicate that the security of society and the penal institution is endangered, terrorist organisations or other criminal organisations are being directed, orders and instructions are being given to those organisations or secret, open or encrypted messages are being transmitted through comments made during meetings with the lawyers of those convicted of the offences defined in Article 220 of the Turkish Criminal Code and those defined in the Fourth, Fifth, Sixth and Seventh Chapters of the Fourth Part of the Second Volume [of the Criminal Code], as well as the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991), following a request by the Chief Public Prosecutor’s Office and a decision by the enforcement judge, for a period of three months, audio or video recordings of the meeting may be made using a technical device, an officer may be present at the meeting in order to monitor the conversations between the convicted person and the lawyer, the documents or copies of documents, files and records exchanged between the convicted person and the lawyer may be seized or the days and times of the meetings may be limited. ... (10) The provisions of this section shall also apply to convicted persons in high-security penal institutions in accordance with section 9(3) [of this Law] and to those convicted of offences referred to in the fifth subsection [of this section] who meet with their lawyers as suspects or defendants in relation to another offence. (11) The magistrate at the investigation stage and the court at the prosecution stage shall have the authority to decide in accordance with the provisions of this section in respect of detainees.” Emergency Legislative Decree no. 667 (Law no. 6749) 42.     The relevant parts of Emergency Legislative Decree no.   667 on measures adopted during the state of emergency, published in the Official Gazette on 23 July 2016 and approved by Law no. 6749 of 18 October 2016, read as follows: Section 6 “(1) In the course of the state of emergency, in respect of the offences defined in the Fourth, Fifth, Sixth and Seventh Chapters of Part Four of the Second Volume of the Turkish Criminal Code (Law no. 5237 of 26 September 2004), the offences falling within the scope of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991) and the offences committed collectively; ... (d) Where there is a possibility that, during the meetings of detainees with their lawyers, the security of the nation and the penal institution may be endangered, that the terrorist organisation or other criminal organisations may be directed, that orders and instructions may be given to those organisations, or that secret, open or encoded messages may be transmitted through their comments, at the request of the public prosecutor audio or video recordings of the meetings may be made; an officer may be present so as to monitor the meeting between the detainee and his or her lawyer; the documents or copies of documents and files exchanged between the detainee and his or her lawyer and the records kept by them in relation to the conversations between them may be seized; or the dates and times of the meetings may be restricted following a decision by the public prosecutor. Where it is understood that the meeting of the detainee is intended for [any of] the purposes indicated above, the meeting shall be terminated immediately and the issue shall be noted in a report providing the relevant reasons. Prior to the meeting, the parties shall be warned in this regard. If a report is drawn up in respect of the detainee, the enforcement judge may prohibit the detainee from having a meeting with his or her lawyers. The detainee and the relevant bar association shall immediately be notified of the prohibition order so that a new lawyer may be appointed. The public prosecutor may submit a request for the replacement of the lawyer assigned by the bar association. ...” Case-law of the Constitutional Court Decision of 24 July 2019 (E.2016/205, K.2019/63) 43.     In this decision, on an application for annulment submitted by 122 members of the Turkish Grand National Assembly, the Constitutional Court reviewed, inter alia , the constitutionality of section 6(1)(d) of Law no. 6749 on the monitoring and recording of detainees’ meetings with their lawyers. 44.     The Constitutional Court conducted an examination as to the compatibility with the right to object to detention and the right to a fair trial, provided for by Articles 19 and 36 of the Turkish Constitution respectively, of the following part of section 6(1)(d) of Law no. 6749: “... following a decision by the public prosecutor, an officer may be present so as to monitor the meeting between the detainee and his or her lawyer; the documents or copies of documents and files exchanged between the detainee and his or her lawyer and the records kept by them in relation to the conversations between them may be seized; and the dates and times of the meetings may be restricted ...” 45.     The Constitutional Court held firstly that the provision in issue imposed a restriction on the above-mentioned rights beyond the safeguards prescribed under Article 13 of the Constitution in ordinary circumstances. 46.     However, noting that this rule had been introduced within the context of the state of emergency, the Constitutional Court continued its examination in the light of Article 15 of the Constitution, which provided for the suspension and restriction of the exercise of fundamental rights and freedoms during a state of emergency. In this connection, the Constitutional Court noted that it was necessary to consider the scope and extent of the restriction in question, as well as the characteristics of the events leading to the declaration of the state of emergency in Türkiye and the circumstances emerging after the declaration of the state of emergency. 47.     The Constitutional Court noted at the outset that the restriction on contact between detainees with their lawyers during the state of emergency could be considered a sufficient and essential measure for the protection of the constitutional order and national security. 48.     The Constitutional Court, moreover, considered that the rule did not set forth an arbitrary restriction in respect of detainees’ contact with their lawyers. In that context, it emphasised that the restriction in question did not concern all detainees, but only those being detained in respect of certain offences, namely offences against national security, offences against the constitutional order and the operation of constitutional rules, offences against national defence and offences falling within the scope of Law no. 3713 (the Prevention of Terrorism Act). 49.     The Constitutional Court further pointed out that the rule specified that the restriction could only be applied under certain conditions in pursuit of its aims. In that connection, the Constitutional Court held that a prosecutor could decide to apply the restriction only when there was a possibility that during meetings of detainees with their lawyers, the security of society and the penal institution might be endangered, a terrorist organisation or other criminal organisations might be directed, orders and instructions might be given to such organisations, or secret, open or encoded messages might be transmitted through comments made at the meetings. 50.     In the light of the foregoing analysis and taking into consideration the specific circumstances of the 15 July 2016 coup attempt leading to the declaration of the state of emergency, the Constitutional Court concluded that it could not be said that the relevant regulations restricted the right to receive legal assistance or the right to object against detention in such a manner as to exceed the extent required by the exigencies of the situation. Consequently, the Constitutional Court dismissed the application for annulment. Decision of 24 July 2019 (E. 2018/73, K. 2019/65) 51.     In this decision, on an application for annulment submitted by 114 members of the Turkish Grand National Assembly, the Constitutional Court examined, among other things, the constitutionality of subsections (5), (10) and (11) of section 59 of Law no. 5275 on the enforcement of sentences and preventive measures, which had been added to that section by Law no. 7070 (see paragraph 41 above). 52.     The Constitutional Court carried out its examination of the constitutionality of subsection (5) concerning the measures restricting convicted prisoners’ meetings with their lawyers in the light of Article 20 of the Constitution, which guarantees the right to privacy. The Constitutional Court firstly noted that the subsection in question had the legitimate aims of protecting national security and the security of prisons, as well as preventing the commission of public-order offences. It then carried out its proportionality assessment. Noting that the provision in issue required certain conditions for the imposition of restrictions, that it provided a time-limit for its application, and that such restrictions could only be imposed by a judicial body, whose decision was open to appeal, the Constitutional Court concluded that the provision contained sufficient legal safeguards to prevent the arbitrary use of the authorities’ power to impose such a restrictive measure. In the light of the foregoing, the Constitutional Court dismissed the application for annulment in so far as it concerned subsection (5) taken alone. 53.     The Constitutional Court subsequently examined subsection (10) in the light of Article 36 of the Constitution, which provides for the right to a fair trial. Considering the importance of legal assistance and the right to a fair trial, the Constitutional Court concluded that the measures of audio and video recording of meetings with lawyers, the presence of an officer at the meetings and the seizure of documents or copies of documents, files and records exchanged between suspects or defendants and lawyers were not proportionate, and were thus contrary to Articles 13 and 36 of the Constitution. In the light of that conclusion, the Constitutional Court struck down the following part of subsection (10): “... and those convicted of offences referred to in the fifth subsection [of this section] who meet with their lawyers as suspects or defendants in relation to another offence ...” in relation to the following part of subsection (5): “...audio or video recordings of the meeting may be made using a technical device, an officer may be present at the meeting in order to monitor the conversations between the convicted person and the lawyer, and the documents or copies of documents, files and records exchanged between the convicted person and the lawyer may be seized ...” Individual applications 54.     The Government referred to two judgments delivered by the Constitutional Court in the context of individual applications which concerned the recording and monitoring of meetings in prison with lawyers during the state of emergency. In Yasin Akdeniz (no.   2016/22178, 26   February 2020), the applicant had complained of a violation of the right to seek an effective judicial review of his detention. On the other hand, in Orhan Patarya (no.   2018/23568, 20 May 2021) the applicant had alleged a violation of his right to a fair trial, complaining that on account of the recording and monitoring of his meetings with his lawyer, he had been denied access to effective legal assistance. 55.     In its judgment in Yasin Akdeniz the Constitutional Court initially acknowledged that the restrictions on the applicant’s right to receive legal assistance in the context of his right to object to his detention were contrary to the safeguards set out under Article 19 of the Turkish Constitution on the right to liberty and security. Noting, however, that the applicant had been detained in the context of the events leading to the declaration of the state of emergency and that the state of emergency had still been in force at the time of the examination of the objection to his detention, the Constitutional Court continued its assessment under Article 15 of the Constitution. In that connection, the Constitutional Court referred to its judgment of 24   July 2019, in which it had examined the constitutionality of section 6(1)(d) of Law no. 6749, which provided for the measures of recording and monitoring meetings with lawyers, and concluded that those measures were “required by the exigencies of the situation” (see paragraphs 43-50 above). Accordingly, noting that there was no reason to depart from that conclusion in the case before it, the Constitutional Court dismissed the individual application. The Constitutional Court held that, having regard to the safeguards provided by law and the circumstances of the state of emergency, it could not be concluded that the restrictions in question on meetings with lawyers were not proportionate, as long as the legal conditions were met. 56.     In Orhan Patarya the Constitutional Court examined the applicant’s complaint that his right to legal assistance had been violated on account of the recording by means of technical devices and the monitoring by an officer of his meetings with his lawyer. As in its judgment in Yasin Akdeniz , the Constitutional Court examined the complaint from the standpoint of Article 15 of the Constitution . In that regard, the Constitutional Court noted that the measure in question had been taken at a time when the threat and danger posed not only by the coup attempt, but also by the FETÖ/PDY, had been ongoing. The Constitutional Court added that the public authorities’ concerns that the organisation might carry out a new coup attempt had not completely disappeared at the relevant time and that not only had the procedures for removing members of the organisation from the public administration been ongoing, but there had also been continuing efforts to take legislative, administrative and legal measures in relation to the organisation. The Constitutional Court further took into account the fact that the FETÖ/PDY carried out its activities on a basis of secrecy and used communication methods which ensured secrecy; thus, it concluded that the recording and monitoring of meetings with lawyers at that time had been a reasonable measure. The Constitutional Court considered the specific circumstance of the case, such as the fact that only two meetings which had taken place during the investigation stage had been subjected to restrictions and that the applicant had been able to have meetings in full confidentiality, apart from those meetings, in the subsequent stages of the proceedings. The Constitutional Court further observed that no evidence capable of incriminating the applicant had been obtained during the period when the restrictions had been applied. Lastly, emphasising the reduction in the number of personnel assigned to the duty of ensuring security in the prisons and in the number of law-enforcement officers, the Constitutional Court took the view that the measure of recording meetings with lawyers had been in accordance with the exigencies of the situation. Accordingly, the Constitutional Court ruled that the applicant’s right to legal assistance from a lawyer in the context of the right to a fair trial guaranteed in Article 36 of the Constitution, read together with Article 15 of the Constitution, had not been violated. INTERNATIONAL MATERIAL Opinion on Emergency Legislative Decrees nos. 667-676 adopted by the European Commission for Democracy through Law of the Council of Europe (Venice Commission) 57.     On 12 December 2016 the Venice Commission made public its opinion, adopted at its 109th plenary session (9-10 December 2016), concerning Emergency Legislative Decrees nos. 667-676, enacted in the framework of the state of emergency (Opinion on Emergency Decree Laws nos.   667-676 adopted following the failed coup of 15 July 2016 (CDL ‑ AD(2016)037)). 58.     The Venice Commission noted that Emergency Legislative Decree no. 667 introduced certain rules which were aimed at simplifying the task of the investigative bodies, prosecution and courts in examining cases related to a number of serious offences. In that connection the Venice Commission observed that oral consultations between detainees and their lawyers could be recorded for security reasons. The Venice Commission assessed this measure in respect of the right to be effectively defended by a lawyer. The relevant parts of the opinion read as follows: “173. The Venice Commission would like to stress the need for ‘individual assessment of the particular circumstances of the case’. Indeed, under the [Convention], a decision to restrict access to legal aid or put conditions limiting confidentiality of lawyer-client contacts may be based on a combination of several presumptions of fact, convincingly showing the presence of a security risk. Thus, as the [Court] stressed in Khodorkovskiy and Lebedev , ‘there could be legitimate restrictions related to the security risks posed by the defendant. The existence of any “security risk” may be inferred from the nature of the accusations against him, by the detainee’s criminal profile, his behaviour during the proceedings, etc. Thus, the Court has tolerated certain restrictions imposed on lawyer-client contacts in cases of terrorism and organised crime ...’. 174. However, the use of presumption of facts does not exclude the need for individualised examination of the circumstances of each particular case. Such limitations as described in the decree laws should not be generally imposed and should not become a routine procedure but remain a rare and narrowly circumscribed exception. This is particularly true where, as here, there are valid concerns regarding allegations of ill-treatment and torture (see sub-section 3, below). Decisions imposing temporary limitations on contacts with the lawyer may be imposed only in exceptional situations in individual cases, where the existence of security risks is convincingly demonstrated, should be reasoned with reference to the facts of the case, should be notified to the defence, and the court should be able to review the validity of any such limitations.” Other international material 59.     For a detailed description of the international standards concerning the privacy of communications between a prisoner and his or her chosen representative, see Altay v. Turkey (no. 2) (no. 11236/09, §§ 32-34, 9 April 2019). THE LAW         JOINDER OF THE APPLICATIONS 60.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. PRELIMINARY REMARKS 61.     The Government first pointed out that the applicants’ complaints should be examined in the light of the Notice of Derogation transmitted to the Secretary General of the Council of Europe on 21   July 2016 under Article   15 of the Convention, which reads as follows: “1.     In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2.     No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made under this provision. 3.     Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.” 62.     The Government submitted that, having availed itself of its right of derogation from its obligations under the Convention in accordance with Article 15, Türkiye had not infringed the provisions of that instrument. In that connection, they stated that there had been a public emergency threatening the life of the nation on account of the risks arising from the attempted military coup and that the measures adopted by the national authorities in reaction to that emergency had been made strictly necessary by the situation. 63.     At this stage the Court notes that it has previously held that the attempted military coup revealed the existence of a “public emergency threatening the life of the nation” within the meaning of the Convention. As to whether the measures taken in the present cases were strictly required by the exigencies of the situation and consistent with the other obligations under international law, the Court considers it necessary to examine the applicant’s complaints on the merits and will do so below ( see Mehmet Hasan Altan v.   Turkey , no. 13237/17, § 93, 20   March 2018, and Pişkin v. Turkey , no.   33399/18, § 59, 15 December 2020). ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 64.     The applicants complained that the monitoring by an officer of their lawyers’ visits and the recording of those meetings by means of technical devices had contravened their right to confidential communication with their lawyers, in breach of their right to respect for their private life under Article 8 of the Convention. Relying on Article 13 of the Convention, they also complained of a lack of an effective domestic remedy in that respect. 65.     By virtue of the   jura novit curia   principle the Court is not bound by the legal grounds adduced by an applicant under the Convention and the Protocols thereto and has the power to decide on the characterisation to be given in law to the facts of a complaint by examining it under Articles or provisions of the Convention that are different from those relied upon by the applicant ( see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §   126, 20 March 2018) 66.     In the present case, the Court notes that the essence of the applicants’ complaints as set out above is that their right to respect for their private life