Mehmet Koray Eryaşa, Application No: 2013/6693, 16 April 2015 [Right to Communicate with Lawyer Under Arrest and Freedom of Communication in General – Article 22 of the Constitution – Violation – Non-Monetary Damages]

A) Facts

As of the date of application, the applicant was under arrest in the 3rd Corps Commandership Military Prison. In the meanwhile, he requested to be allowed to talk with his lawyer on the phone, to have contact visitations without any restrictions on time, to have telephone conversations without any restrictions person, date and time; and to have access to the Internet without any limitations in order to facilitate the means of preparing his defence; however, all of these requests were rejected. Following the rejection, Eryaşa applied to the Constitutional Court, claiming that his fundamental rights under the Articles 13, 19, 20, 22, 36 and 41 of the Constitution were violated, that the related articles of the regulation forming the basis of the rejection should be annulled and that a compensation should be awarded.

B) Judgment and Reasoning of the Court

In the judgment, the allegations of the applicant were analysed in relation to the right to communicate and the right to respect for private and family life. For the alleged violation of the right to communicate, the Court made its assessment under two different sections for the allegations of “prohibition to communicate with lawyer” and “inspection of communication via telephone and mail”. In the first section, the Court stated that according to Article 66 of the Law no. 5275, communication encompasses telephone conversations; and Article 114(5) of the law code stipulates that there shall be no restrictions or prohibitions brought on the convicts’ communication with their lawyers. Considering the foregoing, since “the applicant’s telephone conversations with his lawyer was recorded and the prohibition of communication with his lawyer, without any specific rule, does not conform with the principle of legality,” the Court ruled that the applicant’s right to communicate under Article 22 of Turkish Constitution has been violated.

On the other hand, as regards to the applicant’s correspondence and telephone conversations, the Court came to the conclusion that, as a result of Articles 66 and 68 of Law no. 5275 satisfying the principle of legality; the aim of inspections being legitimate as to enable security in prison and to prevent crimes; and the inspection of the convicts’ and arrestees’ communication being proportionate in general; there has been no violation of the right to communicate.

Finally, as regards to the alleged violations of the right to respect for private and family life, it was concluded that the restriction was prescribed by law; that a legitimate aim was pursued in order to enable security and order in prison and to prevent the commission of crimes; and that the said measure could be considered as necessary in a democratic society and proportionate. Therefore, no violation was found under the right to respect for private and family life.

“In the present case, in striking a balance between the restrictions brought on the applicant’s right to respect for private and family life as a natural and inevitable consequence of imprisonment and the public interest in the legitimate aim of enabling order in prison together with the prevention of crimes, the prison administration cannot be said to have acted against the protection of arrestees’ and convicts’ right to communicate with their families and other relatives in accordance with law. The applicant also did not make such a claim. On the contrary, the applicant has the opportunity to be visited four times (one of them as contact-visitation) per month and to make ten-minutes long telephone conversations per week. It also cannot be stated that being an arrestee does not make the applicant to be more privileged compared to the convicts in respect of its communications with outside world. In this regard, it is obvious that the applicant’s telephone conversations and contacts with his family during visitations are held in regular order.”

C) Significance of the Judgment

This judgement deserves attention as it includes a comprehensive analysis of the right to communicate in prison. Moreover, taking into account the Articles 41 and 20(1) of the Constitution, it is ruled by the Court that the state is under the obligation to take necessary measures to provide arrestees and convicts the means to communicate with their families. It is also significant that the Court has referred to the Recommendation Rec(2006)2 of the Council of Europe Committee of Ministers to Member States on the European Prison Rules and to the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.