03 July 2018 Tuesday

Bayram Sivri (no. 2017/34955, 3 July 2018)

The Facts

After the coup attempt of 15 July 2016, the applicant was detained and placed in a penitentiary institution for alleged membership of the Fetullahist Terrorist Organization/Parallel State Structure (FETÖ/PDY).

In line with the Decree Law no. 667 on the Measures under the State of Emergency, the Administrative and Supervisory Board of the Penitentiary Institution decided that those who were already detained for the offences specified in the Decree Law and those who were detained for the first time and placed in the penitentiary institution would exercise their right to communicate by telephone once every fifteen days during the state of emergency.

The applicant’s objection to this decision was dismissed by the Execution Judge. Besides, his appeal against the decision of the Execution Judge was dismissed by the Assize Court.

The Applicant’s Allegations

The applicant maintained that his freedom of communication and right to respect for private life were violated due to the restriction imposed on his telephone communications.

The Court’s Assessment

Article 22 of the Constitution enshrines that everyone has the freedom of communication, and privacy of communication is essential. The right to respect for family life is also safeguarded under Article 20 of the Constitution.

In addition, as set out in Article 13 of the Constitution, fundamental rights and freedoms may be restricted only by law and in conformity with the reasons specified in the relevant provisions thereof. Such restrictions cannot be contrary to the requirements of a democratic order of the society and the principle of proportionality.

In the present case, the applicant did not raise any allegation as to the complete hindrance of communication with his family members and relatives. His complaint concerns the restriction of his right to communicate by telephone to a period of ten minutes once every fifteen days.

His complaint is examined under Article 13 of the Constitution which lays out that such restrictions must be prescribed by law, pursue a legitimate aim, and comply with the requirements of the democratic order of the society as well as with the principle of proportionality.

The applicant’s right to communicate by telephone was restricted within the framework of a legal provision. Regard being had to a detention for an offence falling into the scope of the Anti-Terror Law, differences among the rights and opportunities afforded to prisoners, by the nature or gravity of their offences, may be deemed justified.

Given the gravity of the offences and specific circumstances of the state of emergency, it has been concluded that the restriction imposed on telephone communications of certain detainees, for the purposes of maintaining public order, safety and discipline of the penitentiary institution, satisfies the requirement of pursuing a legitimate aim.

In the aftermath of the coup attempt of 15 July, a great number of public officers and civilians considered to have a link with the FETÖ/PDY were detained on remand by a court decision, and the European Court of Human Rights also acknowledged that this coup attempt revealed the existence of a public threat posing a risk to the life of the nation.

Regard being had to the extent of the coup attempt threatening the life of the nation and to detention of many persons due to terrorist offences following the coup attempt, it cannot be said that the interference in the present case is not necessary in a democratic society.

Besides, the complained restriction was applied only during the state of emergency. The time granted to the applicant for communication was not restricted. Nor did he raise an allegation that he was deprived of his right to communicate by telephone.

For the reasons explained above, the Constitutional Court declared the alleged violations of the right to respect for family life and the freedom of communication inadmissible for being manifestly ill-founded.