Individual Application

The Facts

The applicant who had been placed in a T-type closed penitentiary institution, complained of the poor conditions of the institution due to the overcrowded cell he was kept in and the refusal to sell the periodical he requested. The applicant applied to the execution judge, requesting a decrease in the number of inmates in the cell and the sale of the periodical in question. The judge dismissed the applicant’s request on various grounds. The applicant’s appeal against the judge’s decision was dismissed, with no right of appeal, by the incumbent assize court.

The Applicant’s Allegations

The applicant claimed that the prohibition of ill-treatment and the freedom of expression had been violated respectively due to his detention in an overcrowded cell of the penitentiary institution and to the refusal of his request to purchase the periodical at his own expense.

The Court’s Assessment

A. Alleged Violation of the Prohibition of Ill-Treatment

Article 17 of the Constitution guarantees that the living conditions of a detainee who is placed in the penitentiary institution should be compatible with human dignity. The manner and method of execution must not subject prisoners to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in deprivation of liberty. In this respect, three factors are taken into account as regards the complaints of overcrowded cells and lack of personal space. These three factors include the allocation of 4 m² for each detainee, the ensuring of a separate sleeping area for each detainee, and the building of the floor of the ward in a way that enables the detainee to freely move among the furniture. The absence of one of the three factors in question will, in itself, lead to a strong presumption as to the violation of the prohibition of ill-treatment due to the poor conditions of the detention.

In addition, even if a strong presumption as to the violation of Article 17 of the Constitution is arisen due to the reduction of the minimum living space allocated for an individual in the multi-occupancy cells below 4 m², it may be eliminated by the fulfilment of three factors.  Firstly, the reduction of the minimum personal space below 4 m² should short, minor and occasional. Secondly, such reduction must be accompanied by sufficient freedom of movement and activities outside the ward. Lastly, the applicant must be accommodated in a penitentiary institution that is generally appropriate and does not aggravate the conditions of the detention.

In the present case, the applicant was accommodated for 280 days in the impugned penitentiary institution. The minimum personal space required to be allocated for the applicant was reduced below 4 m² for a total of eight consecutive months during this period. The reduction in the minimum personal living space, in itself, leads to a strong presumption as to the violation of the prohibition of ill-treatment due to the poor conditions of the detention. In this regard, the initial assessment should focus on the duration, frequency, and severity of the reduction of the minimum personal living space below 4 m². It cannot be said that the insufficient nature of personal living space, which had lasted for 8 months, was considered as short, minor, and occasional. Therefore, it has been concluded that in consideration of the distinct and cumulative effects of detention conditions on the applicant, the reduction in the minimum personal living space attained the level of severity required to constitute a violation of the prohibition of ill-treatment.

Consequently, the Court has found a violation of the prohibition of ill-treatment.

B. Alleged Violation of the Freedom of Expression

In its Recep Bekik and Others judgment ([Plenary], no. 2016/12936, 27 March 2019), the Constitutional Court, examining the application having factual similarities with the present case, set the constitutional principles to be applied. In that judgment, the Court concluded that the right to freedom of expression had been violated due to the lack of mechanisms that would prevent arbitrariness in the provision of periodicals to the detainees and convicts in the penitentiary institution, ensure the application of the same procedures to those who were in a similar situation, and guarantee clear, guiding and consistent administrative acts. It has been observed that although following the Recep Bekik and Others judgment, various measures were taken by Law no. 7242 and other amending acts, the present case relates to the interferences carried out before the said statutory and procedural amendments. Therefore, there is no reason for the Court to depart from the conclusion and principles reached in the relevant judgment.

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