Case Summary and Outcome

The European Court of Human Rights held that Türkiye did not violate Article 10 of the European Convention on Human Rights. The case concerned a prisoner’s complaint that his right to receive information was infringed when prison authorities refused to deliver documents printed from the internet, sent to him by his wife, which contained educational and physiotherapy materials, on the grounds that internet printouts posed risks to prison order and security. The Court found that this interference was prescribed by domestic law and pursued the legitimate aims of protecting national security and preventing disorder and crime. In assessing proportionality, the Court accorded a wide margin of appreciation to the national authorities, accepting that the review of a large volume of non-official printouts could overwhelm prison staff and that the prisoner had alternative means of accessing information. The Court concluded that the domestic courts, particularly the Constitutional Court, had conducted a careful balancing of the competing interests and that the measure was not disproportionate.

Facts

The applicant, Abdül Samed Tergek, a Turkish national, was serving a prison sentence in Kocaeli T-Type Prison following his conviction for membership of an armed terrorist organization, the “Fetullahist Terror Organisation/Parallel State Structure” (FETÖ/PDY). The factual background of the application involves two separate incidents concerning correspondence sent to him.

The first incident occurred on 22 October 2018. The prison’s letter-reading committee reviewed a letter from the applicant’s sister containing thirty-one pages of internet printouts and deemed it “objectionable” and referred to the Disciplinary Board. On the same day, the Board, citing Section 68(3) of Law No. 5275 on the execution of sentences and preventive measures, decided to withhold the letter. The Board justified its decision on the grounds that the enclosures contained statements potentially threatening prison security, that the publisher and purpose of the information were unclear, and that the material included phrases which could facilitate communication within the FETÖ/PDY. The applicant lodged an objection with the Kocaeli enforcement judge on 26 October 2018, explaining that the documents contained physiotherapy exercises for rehabilitation from an ankle injury and materials for a distance-learning course in real-estate management. On 19 August 2019, the enforcement judge upheld the objection, ruling that withholding the documents without a specific assessment of their content was unlawful. The applicant received the letter and its enclosures on 25 October 2019.

The second incident began on 18 December 2018, when the letter-reading committee deemed another letter, sent by the applicant’s wife and containing sixty-one pages of internet printouts, a one-page handwritten note, and four pictures, to be objectionable. The Disciplinary Board again cited Section 68(3) of Law no. 5275 and referenced a prior decision of the Administration and Monitoring Board from 4 November 2016 concerning the risks of allowing internet printouts. The Board decided to withhold the sixty-one pages of printouts but authorised the delivery of the handwritten note and pictures. The decision did not address the specific content of the withheld documents. The applicant objected to this decision on 24 December 2018, reiterating that the documents were essential for his rehabilitation and education. However, on 27 August 2019, the enforcement judge dismissed the objection, reasoning that internet printouts could not be classified as “books” or “correspondence” under Section 62 of Law no. 5275 due to their unknown origin and susceptibility to interference. This decision was upheld by the Kocaeli Assize Court on 17 September 2019.

Following these domestic proceedings, the applicant lodged an individual application with the Constitutional Court of Türkiye on 30 October 2019, arguing that his right to respect for correspondence had been violated. On 16 June 2020, the Constitutional Court, sitting as a panel of two judges, declared the application manifestly ill-founded, relying on its leading judgment in the case of Diyadin Akdemir.

The applicant subsequently lodged an application with the European Court of Human Rights on 3 December 2020, alleging a violation of his rights under the European Convention on Human Rights, particularly Article 10 concerning freedom to receive information and ideas.

Decision Overview

The Second Section (Chamber) of the European Court of Human Rights delivered the judgment. The primary issue before the Court was whether the refusal by the Turkish prison authorities to deliver the internet printouts enclosed with the second letter sent to the applicant by his wife constituted a violation of his right to receive information and ideas under Article 10 of the Convention. The complaint regarding the first letter was declared inadmissible due to the applicant losing his victim status after the domestic courts provided redress.

The applicant argued that the withholding of the documents constituted an unjustified infringement of his Convention rights. He contended that the national authorities’ decisions were based on generic reasoning and failed to justify withholding the documents by examining their actual content, which pertained solely to his health and education and posed no threat to prison security. He maintained that the restriction was disproportionate and unnecessary in a democratic society.

The Government raised preliminary objections, arguing the applicant lacked victim status and had not suffered a significant disadvantage, and that the application was manifestly ill-founded. On the merits, the Government asserted that there had been no violation. They submitted that the interference had a clear legal basis in Section 68(3) of Law no. 5275 and Regulation 91(3) of the relevant prison regulations, which authorize the prison administration to withhold correspondence if it poses risks to order, security, or rehabilitation. The Government argued that the measure pursued the legitimate aims of maintaining prison discipline, preventing disorder or crime, and protecting national security. The Government further contended that the measure was both proportionate and necessary, stressing the specific context of the applicant’s imprisonment for terrorism-related offences and the risk that such printouts could facilitate intra-organisational communication. They also emphasised that the applicant had alternative means of accessing information, such as through the prison library and other authorized channels, which rendered the restriction reasonable.

Citing Yankov v. Bulgaria and Tapkan and Others v. Turkey, the Court began its legal analysis by reaffirming established jurisprudence that “prisoners continue to enjoy all the fundamental rights and freedoms guaranteed by the Convention, with the exception of the right to liberty,” including the right to freedom of expression and to receive information and ideas. [para. 53] The Court found that the refusal to hand over the printed documents amounted to an interference with the applicant’s rights under Article 10. It was uncontested that this interference was “prescribed by law,” specifically Sections 62 and 68(3) of Law no. 5275, and that it pursued legitimate aims under Article 10(2), namely national security protection and the prevention of disorder and crime.

The Court then turned to examine whether the interference was necessary in a democratic society. The Court reiterated that it must assess whether the reasons provided by the national authorities were “relevant and sufficient” and whether the measure was proportionate to the legitimate aim pursued. [Bédat v. Switzerland [GC] and Kula v. Turkey] The Court emphasised its subsidiary role, stating that if the domestic courts’ balancing exercise was compliant with Convention criteria, “serious reasons are required for the Court to substitute its opinion.” [para. 59] Referring to Haldimann and Others v. Switzerland,  the Court emphasized that it should not replace national courts but verify that the balancing exercise fell within the State’s margin of appreciation. It noted that the quality of the domestic judicial review was of particular importance, stressing that when general measures are at issue, such as a blanket refusal to allow printouts into prisons, the justification must be particularly persuasive, since such rules apply irrespective of individual circumstances. [Animal Defenders International v. United Kingdom]

In applying this framework, the Court placed significant weight on the assessment conducted by the Turkish Constitutional Court in its leading judgment in the Diyadin Akdemir case. The Court noted that the Constitutional Court had held that photocopied or printed documents were not covered by the legal regime for “periodicals and non-periodicals” and that subjecting them to the same inspection criteria would place “an unreasonable burden” on prison administrations and the judiciary. The Court found this reasoning persuasive, observing that “reviewing a large volume of printed or photocopied documents, in addition to the regular publications sent to prisoners could indeed overwhelm prison staff, impede their duties, and place an excessive burden on the judiciary.” [para. 63]

The Court also acknowledged the qualitative difference between officially published books or periodicals, which are subject to regulatory scrutiny before release, and printouts or photocopies, which bypass such safeguards and may contain risks for prison order and security, especially in cases involving prisoners convicted of terrorism. Furthermore, the Court considered that the applicant had various alternative means available for of accessing information. The Court noted that prisoners could obtain publications upon request, access official institutional publications and school textbooks, make use of prison libraries, and even receive books as gifts on certain occasions. [Osman and Altay v. Türkiye] These avenues, it held, lessened the impact of restrictions on internet printouts.

Consequently, the Court found that the national authorities’ decision to regulate the manner in which prisoners obtain photocopied or printed documents fell within their margin of appreciation. It held that the Constitutional Court had carried out “a detailed and carefully balanced assessment of the competing interests involved” and saw no reason to substitute its own view. [para. 66] The Court therefore concluded that the retention of the printed documents did not constitute a violation of Article 10.

Dissenting opinion of the Judge Arnfinn Bårdsen

Judge Arnfinn Bårdsen, joined by Judges Anja Seibert-Fohr and Juha Lavapuro, delivered a joint dissenting opinion. They characterised the measure as a “blanket ban” on prisoners receiving internet printouts or photocopied documents, applied solely on the basis of format, without any examination of content. They recalled that “the Convention does not stop at the prison gate” and that restrictions on prisoners’ rights must always be justified under Article 10(2) of the Convention. The dissenters also expressed “serious doubts” that such a blanket ban was “prescribed by law” within the meaning of the Convention, as neither Section 62 nor Section 68 of Law no. 5275 expressly referred to or authorized a restriction based on the format of photocopied or printed documents. [paras. 4–6 of the dissent] On the question of necessity, they argued that the wide-ranging and absolute character of the ban required a particularly convincing justification. They observed that the interference was imposed without individualized assessment, excluded even materials essential for health and education, and applied indiscriminately to all prisoners regardless of risk profile. They found that neither the domestic legislation nor the Constitutional Court’s reasoning in Diyadin Akdemir, which relied solely on avoiding an “unreasonable burden” without weighing it against the prisoner’s right to receive information, demonstrated the required careful balancing of the competing interests. [para. 15 of the dissent] The dissenters concluded that the Government had not convincingly demonstrated that the blanket ban was “necessary in a democratic society” and would have found a violation of Article 10.