Individual Application

The Facts

Certain books sent via post to the applicants, who were detainees or convicts in different penitentiary institutions, were not delivered to them due to the decisions rendered by the education boards of the penitentiary institutions. No allegation has been made that, as of the date of the application, a court order was issued for the prohibition of sale, confiscation or seizure of various books which had not been delivered to the applicants. Subsequently, the applicants brought an action before the inferior courts, which upheld the decision denying the delivery of the books to the applicants.

The Applicants’ Allegations

The applicants claimed that their freedom of expression had been violated due to denial to deliver the books posted to them while detained or convicted in penitentiary institutions.

The Court’s Assessment

Having assessed the impugned administrative decisions and the decisions of the inferior courts as a whole, the Court has observed that the relevant decisions failed to include relevant and sufficient grounds. It has been understood in the present case that there had been lack of mechanisms capable of preventing any arbitrariness in the provision of non-periodicals to the detainees and convicts in the penitentiary institutions; of ensuring the application of the same procedures to those who experience similar judicial circumstances; and of guaranteeing clear, guiding and consistent administrative acts. Accordingly, the practice of preventing the delivery of non-periodical publications in prisons under the current system constitutes a structural problem. In this respect, there is a need for the establishment of a mechanism that can ensure the effective assessment of the non-periodicals in question and prevent the emergence of different practices imposed on the prisoners.

Within this context, it has been found that there are efforts to establish a certain procedure in line with the above-mentioned criteria and mechanisms preventing arbitrariness with regard to prisoners’ access to the foreign-language periodicals. The law-maker amended Article 62 of the Law no. 5275 on the Execution of Penalties and Security Measures on 14 April 2020 and regulated the assessment of whether the admission of the periodicals in question by the penitentiary institution will cause any inconvenience shall be incumbent upon the Ministry of Justice due to the difficulties encountered by the local authorities in carrying out such an assessment.

Undoubtedly, the prisoners are not entitled to an unlimited right of access to non-periodicals. The obligations arising from the mere fact of being imprisoned and the facilities of the relevant penitentiary institution entail certain natural restrictions on the access to non-periodicals by the prisoners. Furthermore, the prisoners have access to other non-periodicals as defined by the law in addition to their right to access to the libraries of the penitentiary institutions and public libraries. In this respect, there is no doubt that restrictions may be imposed through the implementation of a policy that is prescribed by law, foreseeable and ensures the application of uniform practice, concerning the non-periodicals which were brought by relatives of the prisoners or sent as a gift via shipping or post, to the penitentiary institution and the sender of which cannot be verified. In this regard, it is clear that the new system to be implemented will be subjected to a review by the Constitutional Court as the last resort through the use of the individual application mechanism.

Accordingly, it is essential to take administrative and legal measures in respect of the delivery of the non-periodicals to the prisoners and to establish effective procedures in order to ensure that the non-periodicals are provided to the prisoners through the use of uniform and fair mechanisms in compliance with the criteria set out by the Constitutional Court. Otherwise, the impugned structural problem will persist and it will fall contrary to the requirements of the democratic social order and amount to a continuous or recurring violation of the freedom of expression safeguarded under Article 26 of the Constitution.

Consequently, the Court has found a violation of the freedom of expression.