Press Release No: Individual Application 45/18
20.09.2018

PRESS RELEASE CONCERNING THE DECISION FINDING INADMISSIBLE THE ALLEGED VIOLATIONS OF THE PROHIBITION OF ILL-TREATMENT AND THE PRINCIPLE OF EQUALITY DUE TO RESTRICTION OF ACCESS TO TRAINING AND REHABILITATION ACTIVITIES IN THE PENITENTIARY INSTITUTION

On 18 July 2018, the Second Section of the Constitutional Court found inadmissible the alleged violations of the prohibition of ill-treatment and the principle of equality in the individual application lodged by İbrahim Kaptan (no. 2017/30510).

The Facts

After the coup attempt of 15 July 2016, the applicant was detained and placed in the penitentiary institution for membership of the Fetullahist Terrorist Organization/Parallel State Structure (FETÖ/PDY).

With the decision of the Administrative and Supervisory Board of the Penitentiary Institution, “Provision of Prisoners with Training and Rehabilitation Activities”, it was held that those who had been detained within the scope of the investigations into the FETÖ/PDY would not be allowed to participate in the training and rehabilitation activities. It was underlined in the reasoning of the decision that the state of emergency was continuing and that the number of persons detained within the scope of the relevant investigations was high, and that therefore the measure in question was taken in order to prevent any security vulnerability.

The applicant’s objection to this decision was dismissed by the Execution Judge. Thereupon, the applicant appealed against the decision of the Execution Judge. The Assize Court dismissed the applicant’s appeal. Hence, the applicant lodged an individual application.

The Applicant’s Allegations

The applicant maintained that the prohibition of ill-treatment was violated due to restriction of access to training and rehabilitation activities in the penitentiary institution where he was held and that the principle of equality was violated in conjunction with the prohibition of ill-treatment due to imposition of this restriction only with respect to the persons detained within the scope of the investigations into the FETÖ/PDY.

The Constitutional Court’s Assessment

1. Alleged Violation of the Prohibition of Ill-treatment

It must be noted that a treatment must attain a minimum level of severity if it is to fall within the scope of Article 17 of the Constitution. The assessment of this threshold of severity is made in regard of the specific circumstances of the case.

According to the regulation, the applicant shall have the opportunity to enjoy the outdoor yard and do individual exercise there at least 1 hour per day in the penitentiary institution where he is being held. Furthermore, the applicant shall have access to periodical and non-periodical publications on the condition that they do not lead to any inconvenience and shall be provided with the opportunity to obtain newspapers, books and printed publications issued by the official institutions, universities and public professional organizations, as well as, foundations exempted from tax by the Council of Ministers and public interest associations, on the condition that they are not banned by a court decision.

In the present case, the applicant was deprived of training and rehabilitation activities such as access to outdoor and indoor sports halls and to library. The penitentiary institution expressed that this measure was necessary for ensuring the security of prisoners, preventing organizational activities and preventing terrorist organizations from directing prisoners and from giving orders and instructions to them.

In this context, the measure in question was based on acceptable and reasonable grounds such as prevention of offence and maintenance of discipline and security in the penitentiary institution. In addition, the applicant enjoyed the opportunity to walk in the open air at least 1 hour per day and during this time he could perform sports activities such as exercising. He also had access to any periodical and non-periodical publications, including books and magazines, on the condition that they did not lead to any inconvenience, and he did not face any obstacle preventing him from obtaining information. The temporary measure in question was subsequently lifted with the decision of the Administrative and Supervisory Board.

Considering these issues as a whole, the temporary measure in question that was based on reasonable grounds did not attain a minimum level of severity to fall within the scope of Article 17 of the Constitution, beyond the distress caused by its nature and regarded as an inevitable consequence of detention.

Consequently, the Constitutional Court declared the alleged violation of the prohibition of ill-treatment inadmissible for being manifestly ill-founded.

2. Alleged Violation of the Principle of Equality in conjunction with the Prohibition of Ill-treatment

Regard being had to the reasoning of the decision of the Administrative and Supervisory Board concerning the prevention of those who were detained within the scope of the investigations into the FETÖ/PDY from training and rehabilitation activities in question, it appears that it was aimed to prevent organizational activities, to prevent terrorist organizations from directing prisoners and from giving orders and instructions to them and to ensure the security of the prisoners.

 It was also underlined in the reasoning of the decision that the state of emergency was continuing and that the number of persons detained within the scope of the relevant investigations was high, and that therefore the measure in question was taken in order to prevent any security vulnerability.

Considering the complex structure of the FETÖ/PDY as well as the strictness of the organizational relationship thereof and the grounds for the state of emergency, it is apparent that it was probable for the persons detained within the scope of the investigations into the FETÖ/PDY to come together in the same penitentiary institutions and continue their organizational activities. Therefore, it has been concluded that the different treatment in question, which aimed at preventing such a probable situation, was based on objective and reasonable grounds.

In the present case, the applicant enjoyed the opportunity, even if limited, to do exercise and access books, and the measure in question was temporary. As a result, although it is clear that the applicant was treated differently, it has been concluded that the impugned treatment was based on objective and reasonable grounds and that the method employed was proportionate.

Consequently, the Constitutional Court declared the alleged violation of the principle of equality in conjunction with the prohibition of ill-treatment inadmissible for being manifestly ill-founded.

This press release prepared by the General Secretariat intends to inform the public and has no binding effect.

The Constitutional Court of the Republic of Turkey © 2019