CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 9 juillet 2024

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TÜRKİYE (Application no. 64870/19)             JUDGMENT   STRASBOURG 9 July 2024             This judgment is final but it may be subject to editorial revision. In the case of Aktaş v. Türkiye, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Jovan Ilievski , President ,   Diana Sârcu,   Gediminas Sagatys , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the application (no.   64870/19) 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”) on 6   December 2019 by a Turkish national, Mr Veysi Aktaş (“the applicant”), who was born in 1969, is detained in İmralı Prison, and was represented by Mr   R. Sarıca, a lawyer practising in Istanbul; the decision to give notice of the application to the Turkish Government (“the Government”), 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, the parties’ observations; the decision to reject the Government’s objection to the examination of the application by a Committee; Having deliberated in private on 18 June 2024, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE Proceedings concerning the Non-Delivery of a SET OF Books to the applicant 1.     The application concerns the refusal of the prison administration to hand over to the applicant copies of a five-volume book series which had been sent to him by post. 2.     At the material time the applicant was serving a sentence of life imprisonment in İmralı Prison for attempting to change the constitutional order. 3 .     By a decision of 6 October 2015, relying on section 62 of the Law on the Execution of Sentences and Preventive Measures (Law no. 5275) and section   87 of the Regulation on the management of prisons and the execution of sentences and preventive measures, the Education Board of İmralı Prison (“the Board”) decided not to deliver to the applicant the five ‑ volume book series Demokratik Uygarlık Çözümü (“Manifesto for a Democratic Civilisation”) written by A.Ö., which had been sent to him by post, but to withhold the books instead. The Board noted that the impugned series was subject to a prohibition order issued by the Mersin Magistrates’ Court on 14   August 2015. 4 .     The applicant lodged an objection against the Board’s decision with the Bursa enforcement judge. On 13 November 2015 the judge issued a partial ruling in the applicant’s favour, allowing the delivery of the fourth volume of the series, noting that the prohibition issued by the Mersin Magistrates’ Court specifically covered volumes one, two, three and five. 5.     The applicant challenged this decision, seeking access to the remaining volumes. The Bursa Assize Court dismissed his objections, holding that the decision was in line with law and procedure. 6 .     In a summary judgment of 28 August 2019, the Constitutional Court declared the individual application lodged by the applicant inadmissible as manifestly ill ‑ founded. The judgment was notified to the applicant on 4   September 2019. judgment of the constitutional court CONCERNING the prohibition order with regard to the fifth volume of the book series 7 .     On 25 June 2014, in the case of Abdullah Öcalan (no. 2013/409), the plenary assembly of the Constitutional Court had found a violation of the complainant author’s right to freedom of expression on account of the prohibition order rendered with regard to the fifth volume of the book series by the Istanbul Magistrates’ Court. Complaint 8 .     The applicant complained of a violation of his right to freedom of expression under Article 10 of the Convention on account of the Board’s decision not to hand over to him the five-volume set of books which had been sent to him by post. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 9.     The Government raised two inadmissibility objections alleging that the applicant had not suffered a significant disadvantage and that he did not have victim status on account of the interception of the books in question. In this respect, they argued that the applicant was able to exercise his freedom to receive information and ideas in many other ways. The Court notes that similar objections raised by the Government have already been dismissed in other cases against Türkiye (see, for instance, Osman and Altay v.   Türkiye (nos.   23782/20 and 40731/20, § 33, 18 July 2023) and   Mehmet Çiftci v.   Turkey (no. 53208/19, § 25, 16 November 2021), and sees no reason to depart from those findings in relation to the objections raised in the present application. 10.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 11.     As to the merits of the application, the applicant submitted that the withholding of the book series in question could not be regarded as having been reasonably justified on the basis of the grounds put forward by the national authorities in the contested decisions, which constituted an infringement of his right to receive information and ideas. 12.     The Government considered that in the present case there had been no interference with the applicant’s right to freedom of expression. They stated that the interception of the set of books sent to the applicant was justified by a valid seizure order from the Magistrates’ Courts with regard to each volume, and that this measure was beneficial both to the institution and the applicant. 13.     In the event that the Court were to accept that there had been an interference, the Government submitted that such interference was provided for by law, namely by section 62 § 3 of the Law no. 5275 and section 87 of the Regulation on the management of prisons and the execution of sentences and preventive measures, and that it pursued the legitimate aims of protecting national security, preventing disorder, and preventing crime. 14.     Finally, the Government maintained that allowing the books in question would undermine the goal of rehabilitating the applicant and other inmates. They noted that the national authorities had duly examined the applicant’s appeals against the impugned decisions and found that the measure in question met a pressing social need, was necessary in a democratic society and was proportionate to the legitimate aim pursued. 15.     The Court notes that it examined similar complaints in the leading cases of Osman and Altay (cited above, §§ 40-60) and Mehmet Çiftci (cited above, §§ 32-46) and found a violation of Article 10 of the Convention on the grounds of the national courts’ failure to provide sufficient reasons for their decisions which could convincingly establish the necessity of the interference with the applicants’ right to freedom of expression. 16.     Turning to the present case, the Court observes that the Board, in justifying the interception of the impugned books, referred explicitly to the prohibition order issued by the Mersin Magistrates’ Court on 14 August 2015 (see paragraph 3 above) which had covered the first, second, third and fifth volumes of the series (see paragraph 4 above). However, the Court notes that neither the Education Board of the prison, nor the enforcement judge, nor the assize court, nor the Constitutional Court itself conducted any evaluation regarding the Constitutional Court’s prior judgment of 25 June 2014 which had identified a violation of the book author’s right to freedom of expression due to the prohibition of the fifth volume of the series (see paragraphs   3-7 above). 17.     The Court therefore finds that the domestic courts did not provide any reasons to demonstrate that there had been circumstances of a substantial and compelling character which would have justified a reassessment of a previous judgment of the Constitutional Court on the same matter, with regard to the fifth volume of the book series. 18.     Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to depart from its conclusion in Osman and Altay and Mehmet Çiftci (both cited above) regarding the failure to provide sufficient reasons justifying the impugned interference in the present application as to the fifth volume of the series. 19.     In view of this conclusion, the Court considers that there is no need to examine the complaint as regards the other volumes of the series in question. 20.     Having regard to the foregoing, there has been a violation of Article   10 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 21.     The applicant claimed 5,000 euros (EUR) in respect of non ‑ pecuniary damage and EUR 5,000 in respect of costs and expenses incurred before the Court, including lawyer’s fees. According to the invoice he submitted, the applicant was charged 10,000 Turkish liras (TRY) for translation costs (approximately EUR 1,000 at the time of the agreement). He further submitted a legal fees agreement concluded with his lawyer for TRY 30,000 (approximately EUR   3,000 at the time of the agreement). 22.     The Government contested those claims. 23.     As regards non-pecuniary damage, noting that the applicant presented no evidence or argument that would make it possible to assess the damage he had allegedly suffered as a result of the measure at issue, the Court considers that, having regard to the circumstances of the present case, the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage alleged (see, mutatis mutandis , Mehmet Çiftçi and Suat Incedere v.   Turkey , nos. 21266/19 and 21774/19, § 27, 18 January 2022; and also Murat Türk v. Turkey [Committee], no. 20686/19, § 19, 5 April 2022; and İncedere and Altay v. Türkiye [Committee], nos. 58778/19 and 2 others, §   16, 12   December 2023). 24.     As regards the costs and expenses claimed by the applicant, having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,000 covering costs under all heads, plus any tax that may be chargeable to the applicant. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 10 of the Convention; Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicant; Holds (a)   that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 9 July 2024, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Dorothee von Arnim   Jovan Ilievski   Deputy Registrar   President