European Court of Human Rights

 

 

SECOND SECTION

CASE OF KURT AND OTHERS v. TÜRKİYE

(Applications nos. 29715/19 and 9 others -
see appended list)

 

 

 

 

JUDGMENT

STRASBOURG

24 September 2024

 

 

 

 

 

 

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Kurt and Others v. Türkiye,

The European Court of Human Rights (Second Section), sitting as a Committee composed of:

          Jovan Ilievski, President,
          Diana Sârcu,
          Gediminas Sagatys, 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 the applicants listed in the appended table ("the applicants"), on the various dates indicated therein;

the decision to give notice of the complaint under Article 8 of the Convention regarding the electronic recording and storage of the applicants' letters to the Turkish Government ("the Government"), represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Türkiye, and to declare inadmissible the remainder of the applications;

the parties' observations;

the decision of 14 December 2023 to strike application no. 60583/19 out of the Court's list of cases in accordance with Article 37 § 1 (a) of the Convention and the decision of 4 April 2024 to restore application no. 60583/19 to the list of cases in accordance with Article 37 § 2 of the Convention;

the decision to dismiss the Government's objection to the examination of the applications by a Committee;

Having deliberated in private on 3 September 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The present applications concern the electronic recording and storage of the applicants' correspondence on the computer system of the National Judicial Network (UYAP) by the applicants' respective prison administrations during their detention.

2.  At the material time the applicants were detained in various prisons in Türkiye on charges of membership of an organisation referred to by the Turkish authorities as FETÖ/PDY ("Fetullahist Terror Organisation/Parallel State Structure") following the attempted coup d'état of 15 July 2016.

3.  During the applicants' detention, with reference to letters from the General Directorate of Prisons and Detention Centres of the Ministry of Justice, the relevant prison administrations recorded the applicants' correspondence - both incoming and outgoing - on the UYAP system.

4.  The applicants objected to the above-mentioned practice of the prison administrations before the relevant enforcement judges and subsequently before the assize courts. The domestic courts dismissed their objections, holding that the practice was in line with law and procedure. In application no. 27416/20 the enforcement judge found it not necessary to deliver a decision regarding the complaint of the applicant Mehmet Hakyemez.

5.  The Constitutional Court declared the individual applications lodged by the applicants inadmissible as being manifestly ill-founded.

THE COURT'S ASSESSMENT

I.        JOINDER OF THE APPLICATIONS

6.  Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment.

II.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

7.  The applicants complained that the recording and storage of their private correspondence on the UYAP system had infringed their right to respect for private life and correspondence under Article 8 of the Convention.

8.  As regards all the applications, the Government invited the Court to declare this complaint inadmissible for the reasons they had raised in Nuh Uzun and Others v. Turkey (nos. 49341/18 and 13 others, §§ 29-34, 29 March 2022). The Court notes that it dismissed the Government's objections in that case (ibid., §§ 39-44 and 82) and sees no reason to depart from those findings in the present applications. The Court therefore considers that this 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.

9.  As to the merits of the applications, the Court notes that it examined a similar complaint in the leading case of Nuh Uzun and Others (ibid., §§ 79‑99) and found a violation of Article 8 of the Convention, as the impugned interference with the applicants' right to respect for their private lives and their correspondence by the recording and storage on the UYAP system of correspondence sent and received by them could not be regarded as having been "in accordance with the law" within the meaning of Article 8 § 2 of the Convention.

10.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to depart from its approach in Nuh Uzun and Others (cited above).

11.  There has accordingly been a violation of Article 8 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

12.  The applicants submitted the following just satisfaction claims:

- Application no. 29715/19: 5,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,000 euros in respect of costs and expenses incurred before the Court, including the lawyer's fees. The applicant did not submit any document to support his claims in respect of costs and expenses.

- Application no. 60583/19: EUR 15,000 in respect of non-pecuniary damage.

- Application no. 13438/20: EUR 12,000 in respect of non-pecuniary damage, EUR 2,000 in respect of costs and expenses incurred before the Court, including the lawyer's fees. In support of his claims, the applicant submitted a legal fee agreement and the minimum lawyer fee tariff published by the Union of Turkish Bar Associations for 2024.

- Application no. 14814/20: EUR 100,000 in respect of non-pecuniary damage.

- Application no. 15379/20: EUR 100,000 in respect of non-pecuniary damage, EUR 20,000 and 400 Turkish Liras (TRY) in respect of costs and expenses incurred before the Court, including the lawyer's fees. In support of his claims, the applicant submitted a legal fee agreement.

- Application no. 27416/20: EUR 100,000 in respect of non-pecuniary damage.

- Application no. 41244/20: EUR 12,000 in respect of non-pecuniary damage, EUR 2,000 in respect of costs and expenses incurred before the Court, including the lawyer's fees. In support of his claims, the applicant submitted a legal fee agreement and the minimum lawyer fee tariff published by the Union of Turkish Bar Associations for 2024.

- Application no. 52862/20: EUR 12,000 in respect of non-pecuniary damage, EUR 2,000 in respect of costs and expenses incurred before the Court, including the lawyer's fees. In support of his claims, the applicant submitted a legal fee agreement and the minimum lawyer fee tariff published by the Union of Turkish Bar Associations for 2023-2024.

- Application no. 53143/20: EUR 100,000 in respect of non-pecuniary damage.

- Application no. 28157/21: EUR 5,000 in respect of non-pecuniary damage, EUR 2,000 in respect of costs and expenses incurred before the Court, including the lawyer's fees. The applicant did not submit any document to support his claims in respect of costs and expenses.

13.  The Government contested those claims.

14.  The Court considers that in the circumstances of the present case, the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage alleged (see Nuh Uzun and Others, cited above, § 111).

15.  According to the Court's case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. The applicants' claims in applications nos. 29715/19 and 28157/21 in respect of costs and expenses must be rejected, regard being had to the terms of Rule 60 § 2 of the Rules of Court and the applicants' failure to provide the Court with any documents in support of their claims. However, the Court considers it reasonable to award the applicants in applications nos. 13438/20, 15379/20, 41244/20 and 52862/20 the sum of EUR 500 for costs and expenses incurred in the proceedings before it, plus any tax that may be chargeable to the applicants, and dismisses the remainder of the claims.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Decides to join the applications;

2.      Declares the applications admissible;

3.      Holds that there has been a violation of Article 8 of the Convention;

4.      Holds that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants;

5.      Holds

(a)  that the respondent State is to pay the applicants in applications nos. 13438/20, 15379/20, 41244/20 and 52862/20, within three months, EUR 500 (five hundred euros), plus any tax that may be chargeable to the applicants, in respect of costs and expenses, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(a)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

6.      Dismisses the remainder of the applicants' claim for just satisfaction.

Done in English, and notified in writing on 24 September 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

       Dorothee von Arnim                                                Jovan Ilievski
          Deputy Registrar                                                      President

 

 

APPENDIX

List of cases:

No.	Application no.	Case name	Lodged on	Applicant Year of Birth Place of Residence Nationality	Represented by
1.	29715/19	Kurt v. Türkiye	10/05/2019	Sami KURT 1978 Kocaeli Turkish	Ümit ÖZKAN
2.	60583/19	Şahin v. Türkiye	09/11/2019	Ömer Said ŞAHİN 1983 Trabzon Turkish	Mehmet ÜSTÜNDAĞ
3.	13438/20	Ayar v. Türkiye	13/02/2020	Adem AYAR 1979 Osmaniye Turkish	Kadir ÖZTÜRK
4.	14814/20	Türk v. Türkiye	09/03/2020	Kenan TÜRK 1980 Osmaniye Turkish
5.	15379/20	Çolaker v. Türkiye	27/02/2020	Mustafa ÇOLAKER 1974 Istanbul Turkish	Ümran DOĞAN
6.	27416/20	Hakyemez v. Türkiye	12/06/2020	Mehmet HAKYEMEZ 1968 Yalova Turkish	Burhan DEMİRCİ
7.	41244/20	Şanlı v. Türkiye	27/08/2020	Sedat ŞANLI 1985 Osmaniye Turkish	Kadir ÖZTÜRK
8.	52862/20	Şahin v. Türkiye	13/11/2020	Erhan ŞAHİN 1980 Istanbul Turkish	Kadir ÖZTÜRK
9.	53143/20	Gülerden v. Türkiye	10/11/2020	Ömer Faruk GÜLERDEN 1993 Hatay Turkish
10.	28157/21	Sulukan v. Türkiye	26/05/2021	Coşkun SULUKAN 1978 Tokat Turkish