SAZ v. TURKIYE - 29218/20 (Article 8 - Right to respect for private and family life : Second Section Committee) [2023] ECHR 825 (24 October 2023)

JUDGMENT STRASBOURG 24 October 2023 This judgment is final but it may be subject to editorial revision. In the case of Saz and Others v. Türkiye, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Jovan Ilievski , President , Lorraine Schembri Orland, Diana Sârcu , 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 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 decision to grant the applicant Cumali Saz leave to represent himself in the proceedings before the Court (Rule 36 § 2 of the Rules of Court); the Government's observations; the observations of the applicant Tahir Kaplan and the confirmation, by the applicants Cumali Saz and Abdullah Akı, of their intention to pursue their applications; Having deliberated in private on 3 October 2023, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1. The applications concern the refusal of the domestic authorities to grant the applicants, who were detained at the time of the events, permission to receive visits from their school-age children during the weekends. 2. The applicant Cumali Saz was detained in Osmaniye T-Type Prison between 6 November 2018 until his release on probation on 31 January 2020. The applicant alleged that during the period in question he had had significantly fewer visits from his school-aged children owing to the prohibition put in place by the Osmaniye T-Type prison administration on 3 September 2018 with respect to weekend visits. 3. The applicant Tahir Kaplan was detained in Bolu T-type Prison from 4 August 2016 until his release on probation on 19 March 2021. On September 2018 the Bolu T-type Prison administration decided to not allow visits during weekends on account of lack of sufficient staff and the capacity of the prison to receive such visits. 4. The applicant Abdullah Akı has been detained in Türkoğlu L-Type Prison since 9 August 2019. His request to use his visiting rights during the weekends was rejected by the Türkoğlu L-Type Prison administration on 23 August 2019 on account of lack of resources. 5. All applicants made use of the complaints procedure before the relevant enforcement judges for the restrictions on weekend visits to be lifted. When their complaints were dismissed, they lodged individual appeals before the Constitutional Court, relying on Article 8 of the Convention. The Constitutional Court dismissed their appeals as manifestly ill-founded by way of a summary decision. 6. According to the information provided by the Government, during the relevant period where the impugned restrictions were in place, the applicant Cumali Saz was visited 26 times by his children, the applicant Tahir Kaplan 56 times and the applicant Abdullah Akı 9 times. THE COURT'S ASSESSMENT JOINDER OF THE APPLICATIONS 7. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 8. All the applicants complained that their right to respect for their private and family life under Article 8 of the Convention had been violated as a result of the decisions of the national authorities to restrict their visiting rights with their children at weekends. 9. The Government submitted that the applicants had not suffered a significant disadvantage, given that they had nonetheless been able to receive visits from their children on weekdays and that they had not been deprived of the possibility of using other means of communicating with their children, such as by telephone or correspondence. 10. The Court notes that similar objections have already been dismissed in Subaşı and Others v. Türkiye (nos. 3468/20 and 18 others, §§ 61-63, 6 December 2022), and sees no reason to depart from those findings in the present cases. 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. 11. Furthermore, in the leading case of Subaşı and Others (ibid., §§ 77-93), the Court already found a violation of Article 8 in respect of issues similar to those in the present case. 12. Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion on the merits of the present complaint. It notes that the impugned restrictions affecting the applicants were taken solely on the basis of the capacity of the prisons and without taking into account the prisoners' right to respect for their family life and their relationships with their children (ibid., § 90) and that the domestic courts reviewing those restrictions failed to take a Convention-compliant approach (ibid., § 91). Having regard to its case-law on the subject, the Court considers that the domestic legal framework as applied in the current case did not provide the applicants with sufficient protection against arbitrary interference with their right to respect for family life, as required by the Convention (see also ibid., § 93). It therefore finds that there has been a violation of Article 8. APPLICATION OF ARTICLE 41 OF THE CONVENTION 13. The applicant Tahir Kaplan claimed 15,000 euros (EUR) in respect of non-pecuniary damage and EUR 1,600 in respect of costs and expenses including attorney fees. However, he did not submit any supporting documents in respect of the latter claim. 14. The Government contested Tahir Kaplan's claim as belated and in any event excessive. 15. The Court notes that the President of the Section had decided on 29 March 2023, pursuant to Rule 38 § 1 of the Rules of Court, to admit Tahir Kaplan's observations and claims for just satisfaction, submitted outside the time-limit, to the case file. That being the case, the Court awards that applicant EUR 1,500 in respect of non-pecuniary damage, plus any tax that may be chargeable. As for the applicant's claims in respect of costs and expenses, the Court observes that he has failed to show by any supporting documents that he actually incurred the alleged costs and expenses. The Court therefore dismisses the remainder of the claims. 16. Lastly, the remaining applicants did not submit a claim for just satisfaction within the time-limit fixed by the Court. The Court therefore considers that there is no call to award them any sum on that account. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Decides to join the applications; Declares the complaint under Article 8 of the Convention admissible; Holds that there has been a violation of Article 8 of the Convention; Holds a) that the respondent State is to pay Mr Tahir Kaplan, within three months, EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of Mr Tahir Kaplan's claims for just satisfaction. Done in English, and notified in writing on 24 October 2023, pursuant to Rule §§ 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. 29218/20 Saz v. Türkiye 26/06/2020 Cumali SAZ Hatay Turkish 2. 29787/20 Kaplan v. Türkiye 03/07/2020 Tahir KAPLAN Samsun Turkish Osman GÖL 3. 31074/20 Akı v. Türkiye 14/07/2020 Abdullah AKI Şanlıurfa Turkish Rıfat HANÇERKIRAN BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII