KARATAY v. TURKIYE - 28377/11 (Judgment : Article 8 - Right to respect for private and family life : Second Section Committee) [2023] ECHR 219 (07 March 2023)

JUDGMENT STRASBOURG 7 March 2023 This judgment is final but it may be subject to editorial revision. In the case of Karatay v. Türkiye, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Pauliine Koskelo , President , Lorraine Schembri Orland, Davor Derenčinović , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the application (no. 28377/11) 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”) on 28 April 2011 by a Turkish national, Mr Ali Karatay (“the applicant”), who was born in 1971 and detained in İzmir, and was represented before the Court by Mr S. Cengiz, a lawyer practising in İzmir; the decision to give notice of the complaints under Articles 6, 8 and 11 of the Convention and Article 3 of Protocol No. 1 to the Convention 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 the remainder of the application inadmissible; the decision to reject the Government’s objection to examination of the application by a Committee; the parties’ observations; Having deliberated in private on 7 February 2023, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1. The application mainly concerns, under Article 6 §§ 1 and 3 (c) of the Convention, the systemic restriction imposed on the applicant’s right of access to a lawyer and the use of statements he had made to the police in convicting him and, under Article 8 of the Convention, an alleged breach of his right to respect for his correspondence on account of interference with his letter to his lawyer by prison authorities. 2. The application further pertains to an alleged breach of the applicant’s right to vote under Article 3 of Protocol No. 1 to the Convention and of his right under Article 11 of the Convention to chair or audit foundations, associations, unions, companies, cooperatives and political parties, which stemmed from a prison sentence imposed on him for having intentionally committed an offence. THE COURT’S ASSESSMENT I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 ( c ) OF THE CONVENTION 3. The Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by these complaints. They further requested the Court to strike the application out of its list of cases in accordance with Article 37 of the Convention. 4. The Government acknowledged a violation of Article 6 §§ 1 and 3 of the Convention. They offered to pay the applicant the amount specified in the appended table and invited the Court to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention. The amount would be converted into the currency of the respondent State at the rate applicable on the date of payment and would be payable within three months from the date of notification of the Court’s decision. In the event of failure to pay that amount within the above-mentioned three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. 5. The payment would constitute the final resolution of the case. 6. The applicant was sent the terms of the Government’s unilateral declaration on 6 September 2018. The Court received a response from the applicant refusing the terms of the declaration on 3 October 2018 on the ground that it covered only one of the complaints of which the Government had been given notice. 7. The Court observes that Article 37 § 1 (c) enables it to strike an application out of its list of cases if “for any other reason established by the Court, it is no longer justified to continue the examination of the application”. 8. It may thus strike out applications under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see, in particular, Tahsin Acar v. Turkey (preliminary issue) [GC], no. 26307/95 , §§ 75‑77, ECHR 2003-VI). 9. The Court has established in a number of cases, including cases brought against Türkiye, its practice concerning complaints of systemic denial of legal assistance and the use of statements to the police, obtained in the absence of a lawyer, in convicting applicants (see, among other authorities, Bayram Koç v. Turkey , no. 38907/09 , 5 September 2017; İzzet Çelik v. Turkey , no. 15185/05, 23 January 2018; Canşad and Others v. Turkey , no. 7851/05, 13 March 2018; Girişen v. Turkey , no. 53567/07 , 13 March 2018; Ömer Güner v. Turkey , no. 28338/07 , 4 September 2018; Mehmet Duman v. Turkey , no. 38740/09, 23 October 2018, and Mehmet Zeki Çelebi v. Turkey , no. 27582/07, 28 January 2020). 10. The Court also takes note of the fact that on 31 July 2018 the Turkish Law no. 7145 entered into force. Sections 4, 17, 18 and 19 of that Law provide for a right to request the reopening of domestic court proceedings or investigations following a decision by the Court to strike out an application on the basis of a friendly settlement or a unilateral declaration. The Court has already stressed on several occasions that the reopening of the domestic proceedings is the most appropriate way to provide an effective solution to an alleged breach of the Convention (see Salduz v. Turkey [GC], no. 36391/02, § 72, ECHR 2008 with further references). In this connection, bearing in mind the Court’s subsidiary role in protecting the rights and freedoms guaranteed by the Convention and the Protocols thereto, it falls in the first place to the national authorities to redress any violation of the Convention (see, amongst others, Yacan v. Turkey (dec.) [Committee], no. 69750/12, 21 October 2021). 11. Having regard to the above considerations and noting the admissions contained in the Government’s declaration, as well as the amount of compensation proposed - which is consistent with the amounts awarded in similar cases - the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c) of the Convention). 12. In the light of the above considerations, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine ). 13. Lastly, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application may be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07 , 4 March 2008). 14. In view of the foregoing, it is appropriate to strike the part of the application concerning this complaint out of the list. II. OTHER ALLEGED VIOLATIONS UNDER WELL-ESTABLISHED CASE-LAW 15. The applicant also raised a complaint under Article 8 of the Convention concerning the opening and inspection, by the prison authorities, of his letter to his lawyer. He stated that his letter concerning the present application was forwarded to his lawyer on 6 April 2011 by the prison administration which had stamped each page of it as “seen”. This complaint is covered by the well‑established case-law of the Court. It is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. Accordingly, it must be declared admissible. Having examined all the material before it, the Court concludes that it discloses a violation of Article 8 of the Convention in the light of its findings in its previous judgments (see, in particular, Eylem Kaya v. Turkey , no. 26623/07, §§ 24-49, 13 December 2016 ). III. OTHER COMPLAINTS 16. The applicant also complained under Article 11 of the Convention about a violation of his right to chair or audit foundations, associations, unions, companies, cooperatives and political parties and under Article 3 of Protocol No. 1 thereto about a violation of his right to vote, both resulting from a prison sentence imposed on him for having intentionally committed an offence. Having regard to the facts of the case, the submissions of the parties and its findings above, the Court considers that it has dealt with the main legal questions raised by the case and that there is no need to examine the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08 , § 156, ECHR 2014). APPLICATION OF ARTICLE 41 OF THE CONVENTION 17. The applicant claimed 45,000 euros (EUR) in respect of non‑pecuniary damage and EUR 11,127 in respect of costs and expenses and lawyer’s fees. In support of those claims, the applicant submitted a timesheet drawn up by his lawyer, together with the Adana Bar Association’s 2017 fee scales. 18. The Government contested those claims. 19. The Court awards the applicant EUR 300 in respect of non-pecuniary damage in relation to his complaint under Article 8 of the Convention, plus any tax that may be chargeable on that amount. 20. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,500 covering costs under all heads, plus any tax that may be chargeable to the applicant. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Takes note of the terms of the respondent Government’s declaration and of the arrangements for ensuring compliance with the undertakings referred to therein; 2. Decides to strike the part of the application concerning Article 6 §§ 1 and 3 (c) of the Convention out of its list of cases in accordance with Article 37 § 1 (c) of the Convention; 3. Declares the application admissible in so far it concerns the complaint under Article 8 of the Convention; 4. Holds that there has been a violation of Article 8 of the Convention as regards the complaint concerning the opening and inspection, by the prison authorities, of the applicant’s letter to his lawyer; 5. Holds that there is no need to examine the admissibility and merits of the remaining complaints under Article 11 of the Convention and Article 3 of Protocol No. 1 thereto; 6. Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement: (i) EUR 300 (three hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) 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; 7. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 7 March 2023, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. {signature_p_1} {signature_p_2} Dorothee von Arnim Pauliine Koskelo Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII