Individual Application

The Facts

Upon the death of the applicant Celaleddin Kolutek, his wife Fadime Kolutek continued the application in his stead as well as on behalf of their children. An investigation had been launched against the deceased applicant for his alleged membership of the Fetullahist Terrorist Organization/Parallel State Structure (“FETÖ/PDY”) during which he was detained on remand. Meanwhile, the Administration and Monitoring Board of the Penitentiary Institution (“the Board”) issued a decision allowing for the monitoring of the meetings of detainees, who were held in the penitentiary institution on charges of membership of the FETÖ/PDY, with their lawyers in accordance with the Decree Law no. 667 on the Measures Taken within the Scope of the State of Emergency (“Decree Law no. 667”). The applicant’s meeting with his lawyer was monitored by an officer in charge at the penitentiary institution in accordance with the said decision. Afterwards, a disciplinary investigation was launched by the Disciplinary Board of the Penitentiary Institution due to the statements allegedly made by the applicant during the monitored meeting. At the end of the investigation, the applicant was placed in solitary confinement for five days pursuant to the Law no. 5275 on the Execution of Sentences and Security Measures for  allegedly insulting and threatening the officer in charge. The applicant appealed the decision before the execution judge, requesting its revocation for its alleged unlawfulness. However, the former dismissed the applicant’s appeal. The applicant’s subsequent appeal was also dismissed by the assize court with no right of appeal.

The Applicants’ Allegations

The applicants claimed that the right to respect for private life as well as the right to a fair trial had been violated on respective grounds that the meeting with the lawyer had been monitored by the officers and that the appeal against the disciplinary punishment, which had been imposed relying on the report issued after the said meeting, had been dismissed.

The Court’s Assessment

1. Alleged Violation of the Right to Respect for Private Life

In the present case, the said measure was taken against the applicant during a period when a state of emergency was declared nationwide. It has been observed that the impugned measure was aimed at preventing potential threats to the security of the society and the penitentiary institution, management of terrorist organisations or other criminal organisations, communication of orders and instructions to them, or transmission of covert, overt or encrypted messages through expressions, and at eliminating the risks posed by the state of emergency. Thus, the alleged violation of the applicant’s right to respect for private life has been examined within the scope of Article 15 of the Constitution.

Considering the circumstances of the state of emergency, it may be reasonable to impose additional measures on the persons concerned, in accordance with the legitimate purposes, provided that there are objective and convincing grounds. Pursuant to Decree Law no. 667, which was in force at the material time, the prisoner’s right to meet his lawyer in private was protected and the confidentiality of the said meeting was acknowledged as a rule. According to the relevant regulation, if there is certain information, findings or documents indicating the involvement of the prisoners of given offences in endangering the security of the society and the penitentiary institution, managing terrorist organisations or other criminal organisations, communicating orders and instructions to them, or transmitting covert, overt or encrypted messages through expressions, then the public prosecutor may restrict the prisoner’s right to meet his lawyer by a decision. However, it has been observed that the relevant decree law did not limit the right to meet a lawyer for a definite period of time and did not establish a specific inspection mechanism as to the ongoing necessity of the impugned measure.

Besides, it has been established that the monitoring decision was not issued by the public prosecutor, but the Board, and that it was of a general nature and lacked any specific reasoning as regards the deceased Celaleddin Kolutek. As a result, when considered from the standpoint of Article 15 of the Constitution, which allows for the suspension and limitation of the exercise of fundamental rights and freedoms during the state of emergency, it has been evaluated that the impugned measure was not proportionate to the extent required by the exigencies of the situation.

Consequently, the Court has found a violation of the right to respect for private life.

2. Alleged Violation of the Right to a Fair Trial

In the present case, the applicant was imposed a disciplinary punishment based on the minutes kept by the officers at the penitentiary institution as well as their statements. In view of the conclusion reached as regards the monitoring of the applicant’s meetings with his lawyer, it has been concluded that the use of the said minutes and the statements of the officials as decisive evidence in the disciplinary proceedings undermined the overall fairness of proceedings.

Consequently, the Court has found a violation of the right to a fair trial.