CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 10 juin 2025

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background-color:#f8f8f8 } .s4D5288E0 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top; background-color:#b0b0b0 } .sF6A12959 { width:33%; height:1px; text-align:left } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4B8D41EE { font-family:Arial; font-size:10pt }   SECOND SECTION CASE OF KACIR AND OTHERS v. TÜRKİYE (Applications nos. 9587/19 and 36 others – see appended list)             JUDGMENT   STRASBOURG 10 June 2025   This judgment is final but it may be subject to editorial revision.     In the case of Kacır and Others v.   Türkiye, The European Court of Human Rights (Second Section), sitting as a Committee composed of:   Jovan Ilievski , President ,   Péter Paczolay,   Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the applications 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 thirty-seven Turkish nationals, whose relevant details are listed in Appendix I (“the applicants”), on the various dates indicated therein; the decision to give notice of the complaints concerning conditions of detention under Article 3 of the Convention in respect of all applications and certain complaints concerning Article 8 of the Convention in respect of the applications nos. 16179/20, 30016/20, 44124/20, 44134/20 and 44267/20 (see in detail paragraph 2 below) to the Turkish Government (“the Government”), represented by their Agent at the time, Mr   Hacı Ali Açıkgül, former Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare the remainder of the applications inadmissible; the parties’ observations; the decision to dismiss the Government’s objection to the examination of the applications by a Committee; Having deliberated in private on 20 May 2025, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     At the time of the events giving rise to the present applications, the applicants were detained in closed penal institutions for terrorism-related offences in connection with the attempted coup of 15   July 2016. 2 .     The applications concern the allegedly inadequate conditions of the applicants’ detention, in particular overcrowding, under Article 3 of the Convention (see for the relevant information Appendices II and III below). The applicants in applications nos. 16179/20, 30016/20, 44124/20, 44134/20 and 44267/20 further complained of a violation of Article 8 of the Convention on various grounds. The applicant Adnan Şimşek (no. 16179/20) complained of the considerable distance between his place of detention and his family’s place of residence. The applicants Davut Şen (no. 30016/20), Abdulvaris Altun (no. 44124/20) and Turgut Ergitürk (no. 44134/20) complained of the domestic authorities’ refusal to grant them permission to receive visits from their school-aged children during the weekends. The applicant Fatih   Ensaroğlu, who has two applications, complained in one of his applications (no.   44267/20) of the electronic recording and storage of his private correspondence in the National Judicial Network System (UYAP) during his detention. facts common to all applicants 3.     Except for the applicant Göksel Baykuş, each applicant initiated individual proceedings on various dates before the respective enforcement judges. Their objections to the decisions of the enforcement judges were subsequently rejected by the respective assize courts. 4.     The applicant Göksel Baykuş filed a criminal complaint with the Menemen Public Prosecutor’s Office, which issued a decision not to prosecute on 26 June 2018. The applicant’s objection to that decision was subsequently rejected by the Karşıyaka Magistrate’s Court on 7 August 2018. 5.     Furthermore, all applicants submitted individual applications to the Constitutional Court complaining about their conditions of detention. On the various dates specified in Appendix I, the court declared their applications inadmissible by summary decisions. additional facts specific to the five applicants who complained about separate issues under article 8 of the Convention Adnan Şimşek (no. 16179/20) 6.     The applicant had previously been appointed as a judge in the area where he was detained, namely Kocaeli No. 1 T-type Prison, and had had no opportunity to relocate his family with him before his detention on 19   July 2016, in the wake of the attempted coup. He had been detained in a prison facility located 600-700 km away from his family’s and parents’ places of residence, Merzifon and Tokat respectively. Arguing that his detention in this remote location imposed significant hardship on his family due to the considerable distance and associated financial burden, resulting in fewer visits, especially from his young children, aged 4 and 8 at the time of the events, he lodged a request with the Central Prison Authority on 12   March 2018 to be transferred to a prison close to his family, namely Tokat   T-type Prison. In his petition, he pointed out that he had no objection to being transferred to an overcrowded prison, as he had been detained in one at that time. 7.     On 26 March 2018 the applicant’s request for a transfer to the prison of his choice was refused by the Central Prison Authority, due to lack of available space in that prison. 8.     On 17 April 2018 he asked for alternative measures to alleviate the effects of the distance between the prison and his family such as providing him with longer telephone calls, extended visiting hours, or an increase in the number of visitors allowed, which were not granted. The applicant made use of the complaint procedure before the relevant enforcement judge. Following the dismissal of his complaint, he lodged an individual application with the Constitutional Court, which declared his complaint inadmissible on 29   November 2019. 9.     In their observations the Government submitted that the applicant had been transferred to Çorum L Type Prison on 31 August 2018 and that he was released from detention on 26 December 2019.   Davut Şen (no.   30016/20) 10 .     The applicant Davut Şen was detained in İzmir T-type Prison from 30   December 2016 until his transfer to Bolvadin T-type Prison on 27   February 2021. On 29 March 2018 the applicant lodged a request with the prison administration to schedule the visits of his school-aged children for weekends instead of weekdays. 11.     On 11 July 2018 the prison administration rejected that request, noting that visits on weekends were not allowed during the state of emergency declared following the coup attempt of 15 July 2016. 12 .     Upon the applicant’s objection, on 16 August 2018, the enforcement judge determined that the applicant’s request necessitated a new review by the prison administration, noting that the state of emergency had been lifted on 18 July 2018. The enforcement judge’s decision was subsequently upheld by the Karşıyaka Assize Court. 13.     On 20 September 2018 the prison administration issued a general decision announcing that it would not allow weekend visits. The applicant’s objection to that decision was dismissed by the enforcement judge and the Assize Court on 10 October and 5 November 2018, respectively. 14 .     On 10 January 2020 the Constitutional Court dismissed the applicant’s individual application concerning the rejection of his request for weekend visits as manifestly ill-founded, referring to its decision in the case of Orhan Alagöz (see, for background information, Subaşı and Others v.   Türkiye , nos. 3468/20 and 18 others, § 41, 6 December 2022). 15.     In the meantime, that is to say on 1 November 2019, the applicant was permitted to receive visits from his children during weekends. According to the Government, during the relevant period when the restrictions in question were in effect, Davut Şen was visited 29 times by his children. Abdulvaris Altun (no.   44124/20) and Turgut Ergitürk (no.   44134/20) 16.     The applicant Abdulvaris Altun has been detained in Osmaniye T-   type Prison since 19 October 2018. On 3 September 2018 that prison administration decided not to allow visits during weekends on account of lack of sufficient staff and the capacity of the prison to receive such visits. 17.     The applicant Turgut Ergitürk has been detained in Çorum L-type Prison since 11 November 2016. On 15 October 2018 that prison administration decided not to allow visits during weekends for similar reasons. 18.     Following those decisions, both applicants brought proceedings on various dates before the respective enforcement judges and assize courts, which dismissed their objections. The applicants then lodged individual applications with the Constitutional Court, relying on Article 8 of the Convention. On various dates, that court dismissed their applications as manifestly ill-founded in a summary decision. 19.     According to the Government, during the relevant period when the restrictions in question were in effect, Abdulvaris Altun was visited 35   times by his children, and Turgut Ergitürk 18 times. Fatih Ensaroğlu (no.   44267/20) 20.     During his detention, the applicant applied to the competent judicial authorities to put an end to the systematic recording of his private correspondence, both outgoing and incoming, in the UYAP system (see Nuh Uzun and Others v. Turkey , nos. 49341/18 and 13 others, §§ 11-26, 29   March 2022 for further information on this practice). The domestic courts, including the Constitutional Court, rejected the applicant’s complaints. THE COURT’S ASSESSMENT JOINDER OF THE APPLICATIONS 21.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly. THE GOVERNMENT’S REQUEST TO STRIKE OUT CERTAIN APPLICATIONS UNDER ARTICLE 37 OF THE CONVENTION 22.     In their observations submitted in respect of certain applications (nos.   20829/19, 30455/19, 65105/19, 6505/20, 15410/20, 16164/20, 17924/20, 24066/20, 30016/20, 49962/20 and 54772/20), the Government argued that the applicants in those cases had failed to appoint a representative and, accordingly, invited the Court to strike the applications out of its list of cases, under Article 37 § 1 (a) of the Convention. 23.     The Court notes that at the time the Government were given notice of the applications, the President of the Section granted leave to the applicants who were not represented by a lawyer to present their own case before the Court, in application of Rule 36 § 2 of the Rules of Court. That being the case, the Government’s request must be dismissed. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION The parties’ submissions 24.     Before the Court, all applicants complained of overcrowding (see for further details Appendices II and III below). In addition, the applicants Mustafa Erşahin, Selçuk Diker, Mesut Şahin, Hasan Eroğlu, Ali Yıldız, Fatih   Ensaroğlu, Mustafa Burgaç, Adnan Şimşek, Abdullah Kayhan, Haşim   Cankurtaran, Zakir Alada and Namuk Şengül also complained about having to sleep on mattresses on the floor. The Government accepted this state of affairs but submitted that the applicants had had their own mattresses and bedding at all times, and that they had not had to sleep in shifts. 25.     The applicants Ramazan İlter, Göksel Baykuş, Seydihan Güz, Turgut   Ergitürk, Erhan Bağcı and Mehmet İbrahimoğlu also complained about the sanitary and hygiene conditions. The Government provided detailed explanations about those conditions which are summarised in İlerde and   Others v.   Türkiye (nos. 35614/19 and 10 others, §§ 9 and 10, 5   December 2023). 26.     The applicants Ali Baz Kösmene, Göksel Baykuş, Mehmet Ali Demirci, Seydihan Güz, Cengiz Yetgin, Ali Arukan, Zekeriye Arslantürk, Aydın Kahveci, Akın Hamit Ilıkan and Namuk Şengül also complained about the insufficient number of toilets and showers in the unit, which had resulted in long queues. 27.     The applicants Mehmet Ali Demirci and Namuk Şengül also complained of insufficient ventilation. Namuk Şengül further claimed that he had been exposed to passive smoking from 17 May 2016 to 25 October 2019. In their observations the Government noted that during his detention at Akşehir T-Type Prison Mehmet Demirci had stayed in a unit that included its own outdoor yard, measuring an average of some 32 square metres. Moreover, they noted that the unit was equipped with six windows, enabling detainees to regulate ventilation. They further stated that the applicant first raised his complaint about exposure to smoke with the administration on 23   January 2020, several months after he had already been transferred to a non-smoking unit. Admissibility 28.     The Government asked the Court to declare those complaints inadmissible in respect of the applicants who had not duly raised their complaints before enforcement judges, who had not pursued compensatory remedies before civil or administrative courts or whose applications have been dismissed by the Constitutional Court with respect to its case-law in İbrahim Kaptan, which concerned restrictions on sports, social and educational activities (see İlerde and Others , cited above, §§   130-31, for the Constitutional Court’s relevant ruling). The Government argued that the core of these applicants’ complaints before the domestic authorities related to the ban on sports, social, and educational out-of-cell activities, rather than overcrowding itself. 29.     The Court notes that similar objections as the first and second objections raised by the Government have already been dismissed in İlerde and Others (see ibid., §§   145-47; §§ 150-53 and §§ 161-65) and sees no reason to depart from those findings in the present case. Moreover, as regards the third objection concerning the exhaustion of the individual application remedy before the Constitutional Court, the Court notes that in their individual applications, all applicants concerned complained about the challenges arising from overcrowding and their inability to participate in educational and social activities. It is clear that the applicants presented in substance their complaints as to the overcrowding before the Constitutional Court. The Court further observes that the Constitutional Court did not dismiss the individual applications for non-exhaustion of domestic remedies. Instead, the Constitutional Court qualified all the complaints as relating to the alleged violation of the right to respect for private and family life and declared the applications inadmissible as manifestly ill-founded. In the light of the foregoing the Court considers that the applicants gave the Constitutional Court the opportunity to examine the alleged violation. Consequently, the Court rejects the Government’s objection concerning the alleged failure to exhaust domestic remedies. 30.     The Court considers that the applicants’ complaints under Article 3 of the Convention are not manifestly ill-founded within the meaning of Article   35 §   3   (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible. Merits 31.     The Government submitted tables to the Court containing specific details about each applicant’s detention, including the measurements of the cells where they had been held. These tables also indicated the minimum and maximum living space available to each applicant, depending on the number of persons detained with them during the relevant period (see Appendix   II). However, these figures were not supported by a prison register, and the periods when the number of inmates was below the maximum were not specified. 32.     Despite these shortcomings, in the light of the methodology adopted in İlerde and Others (cited above, § 175), the Court decides to revise the figures submitted by the Government, excluding the sanitary facilities and outdoor yards from the calculation of the overall space. The revised figures for each applicant are set out in Appendix III. 33.     The Court refers to the principles established in its case ‑ law regarding inadequate conditions of detention (see Muršić v. Croatia [GC], no.   7334/13, §§   96 ‑ 141, ECHR 2016). It reiterates that a serious lack of space in a prison cell weighs heavily as a factor to be taken into account for the purpose of establishing whether the detention conditions described are “degrading” from the point of view of Article 3 and may disclose a violation, both alone or taken together with other shortcomings (see Muršić , cited above, §§ 122-41, and Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, §§   149 ‑ 59, 10   January 2012). 34.     In İlerde and Others (cited above), the Court has examined issues similar to those in the present case. It assessed the complaints of the applicants regarding their conditions of detention in three categories based on personal space: less than 3 sq. m, between 3 sq. m and 4 sq. m, and more than 4   sq.   m (ibid., §§ 169-99). The Court will examine the merits of the present applications on the basis of those categories as well. Conclusion in respect of applicants who had less than 3 sq. m of personal space 35.     The Court notes that all applicants, except Abdulvaris Altun and Turgut Ergitürk, endured a period during which they had less than 3 sq. m of living space in the relevant cells of the detention facilities, as specified in Appendix   III. In respect of these periods of detention, the Court notes that a strong presumption of a violation of Article 3 arises. That presumption can only be rebutted if certain factors are cumulatively met, inter alia , if the reductions in the required minimum personal space of 3 sq. m are short, occasional and minor (see Muršić , cited above, §§ 137-38). It is evident that the periods during which the applicants in the present case had less than 3   sq.   m of personal space were neither short nor occasional (see Appendix   III). Consequently, this cannot rebut the presumption of a violation of Article 3. This finding makes it unnecessary for the Court to address separately the applicants’ remaining allegations concerning the material conditions of their detention during such periods (compare also İlerde and   Others , cited above, § 188). 36.     There has accordingly been a violation of Article 3 of the Convention in respect of all applicants except Abdulvaris Altun and Turgut Ergitürk for the periods of their detention during which they had less than 3   sq. m of living space. Conclusion in respect of applicants who had between 3 sq. m and 4   sq.   m of personal space 37.     The Court notes that the applicants Abdulvaris Altun (no.   44124/20) and Turgut Ergitürk (no. 44134/20) had more than 3 sq. m of living space during the entire period of their detention, but had personal space ranging from 3 to 4 sq. m at some point during their detention, although the exact duration cannot be determined from the information submitted by the parties. Likewise, some of the other applicants had between 3 to 4 sq. m during at some point during their detention. 38 .     The Court has previously examined in İlerde and Others (cited above, §§   190-95) conditions such as those experienced by the applicants, including issues such as inadequate ventilation, insufficient sanitary facilities and hygiene and restrictions on water, and considered that the cumulative impact of these conditions did not meet the severity threshold required to qualify as inhuman or degrading under Article 3 of the Convention. The Court observes that all complaints from the applicants regarding their conditions of detention encompass the same issues as those addressed in İlerde and Others. Namuk Şengül is the sole applicant who raised an additional complaint regarding passive smoking. In relation to this issue, the Court notes the following: (i)   The applicant appeared to have tolerated the smoking as he did not demonstrate that he had lodged any complaints related to smoking with the prison authorities during his detention from 17 May 2016 to 25 October 2019; (ii)   the applicant only raised the issue of exposure to passive smoking on 23   January 2020, nearly three months after his transfer to another prison; (iii)   neither in the domestic proceedings nor in his application before the Court did he present factual allegations or initiate evidence regarding the actual intensity of passive smoking or its alleged negative effects on his physical or mental well-being   (see, a contrario , Elefteriadis v.   Romania , no.   38427/05, § 51, 25 January 2011). Based on these findings, the Court is not persuaded that this aspect, considered alone or in combination with other significant aspects of his detention, subjected him to distress or hardship exceeding the inevitable suffering inherent in detention. 39.     In line with the findings in İlerde and Others (cited above, §§   191 ‑ 95) the Court does not find that these conditions met the threshold of severity required to characterise the treatment as inhuman or degrading under Article   3 of the Convention. Conclusion in respect of applicants who had more than 4 sq. m of personal space 40.     The Court reaffirms its previous conclusion regarding the periods during which the applicants had more than 4   sq. m of personal living space. It reiterates that in cases where a detainee had more than 4 sq. m of personal space at his disposal in multi-occupancy accommodation in prison, no issue with regard to the question of personal space arises, yet other aspects of physical conditions of detention including those referred to above (see paragraph   38) remain relevant for the Court’s assessment. 41.     Considering its earlier findings concerning the other aspects of the applicants’ detention and the conditions in the prisons in question, the Court observes that the conditions of the applicants’ detention did not constitute ill ‑ treatment within the meaning of Article 3 of the Convention. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION IN RESPECT OF APPLICATIONS NOS.   16179/20, 30016/20, 44124/20, 44134/20 AND 44267/20 Adnan Şimşek 42.     The applicant Ahmet Şimşek (application no. 16179/20) alleged a violation of his right to respect for family life due to the hardship his family and parents faced in visiting him, caused by the considerable distance between his place of detention and their places of residence, as well as his inability to obtain a transfer to a closer location. He further explained that his 83-year-old father, who had required care due to illness, and his 70-year-old mother had also been affected. Admissibility 43.     The Government contended that the applicant had failed to exhaust domestic remedies, as he had not challenged the Central Prison Authority’s decision nor sought compensation before administrative courts. The Government further argued that the applicant had lost his victim status due to his voluntary transfer to Çorum L Type Prison on 31 August 2018, which was followed by his release on 26 December 2019. 44.     The Court observes that in the documents appended to the Government’s observations, the Central Prison Authority, in its communication to the Human Rights Department dated 5 August 2021, acknowledged the absence of any judicial remedy available for detainees contesting the rejection of their transfer requests. Furthermore, the Court notes that similar objections have already been dismissed in İlerde and Others (cited above, §§ 205-07), and sees no reason to depart from those findings in the present case. 45.     As regards the Government’s objection concerning the lack of victim status, the Court observes that the applicant requested to be transferred to Tokat T-type Prison, but this request was rejected by the Central Prison Authority. The applicant’s transfer to Çorum L-type Prison took place five months after his initial request, but the Government did not provide any documentation demonstrating that the applicant had specifically sought this transfer. His transfer to Çorum L-type Prison did not entail an acknowledgement that there had been any breach of the applicant’s rights. Accordingly, that decision does not deprive the applicant of his status as a “victim” of an alleged breach of Article   8 of the Convention. 46.     The Court considers that the applicant’s 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. Merits 47.     The general principles regarding the compatibility with Article 8 of the Convention of detention far away from the place of residence of the prisoner’s family so that visits are made very difficult or even impossible are set out, inter alia , in İlerde and Others (cited above, §§   212-15, with further references). 48.     As to whether there was an interference with the applicant’s right to respect for his family life, the Court notes that the applicant provided specific details about where his family resided, their financial circumstances, and the hardship encountered by his family and parents in making a journey of around 600   km to visit him. Furthermore, according to the prison registers provided by the Government, the applicant’s mother, father, and one of his children visited him only once between 19 July 2016 and 31 August 2018, during his time at Kocaeli no.   1 T-type prison. The Court concludes that there was consequently an interference with the applicant’s right to respect for his family life in the circumstances of the present case. 49.     As to whether that interference was justified, even assuming that the refusal to transfer the applicant close to the place of residence of his family was in accordance with the law and pursued the legitimate aim of preventing disorder, notably prison overcrowding, the Court, in examining the proportionality of the measure, notes that the prison administration’s refusal of the applicant’s transfer request was based on prison overcrowding, without any further assessment of whether alternative measures to alleviate the applicant’s grievances could be taken. 50.     In İlerde and Others (cited above, §§ 219-20), the Court already found a violation of Article 8 on account of the authorities’ failure to make any concrete assessment of whether an applicant could be transferred to another prison closer to his family, or whether any alternative means of compensating for the fewer visits he received would be possible, such as longer visits or even longer telephone calls. The same applies in the present case. The applicant’s subsequent transfer, approximately five months after his initial request, to a third city where, albeit it was located closer to his family’s place of residence, neither his family nor his parents resided, does not alter the Court’s conclusion. 51.     Accordingly, there has been a violation of Article 8 of the Convention. Davut Şen, Abdulvaris Altun and Turgut Ergitürk 52.     The applicants complained that their right to respect for their private and family life under Article 8 of the Convention had been violated due to the decisions of the national authorities to restrict their visiting rights with their children on weekends. Admissibility 53.     The Government argued that Davut Şen had failed to exhaust domestic remedies. They noted that although the enforcement judge had decided that his complaint had required a fresh review of the prison administration (see paragraph 12 above), he had not pursued this course of action and had instead filed an individual application. 54.     The Court observes that the applicant made use of the complaint procedure before the enforcement court twice and afforded the Constitutional Court the opportunity to establish and remedy the alleged violation. Furthermore, in the light of the reasons put forth in Subaşı and Others v.   Türkiye (nos. 3468/20 and 18 others, § 73, 6 December 2022 ), the Court is not convinced that at the time of the events an individual application would have had a reasonable prospect of success, had the applicant lodged another application with the Constitutional Court following the dismissal of his objection lodged against the general decision dated 20 September 2018 of İzmir T-type Prison (see paragraphs 10-14 above). Therefore, th