SECOND SECTION
CASE OF MEHMET DEMİR v. TÜRKİYE
(Application no. 55569/19)
 
 
 
 
 
 
JUDGMENT
 
 
 
 
STRASBOURG
24 October 2023
This judgment is final but it may be subject to editorial revision. In the case of Mehmet Demir 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 application (no. 55569/19) 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 30 September 2019 by a Turkish national, Mr Mehmet Demir (“the applicant”), who was born in 1985 and is detained in Gaziantep;
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 the remainder of the application inadmissible;
the Government’s observations;
the interest expressed by the applicant in pursuing the application;
the decision to dismiss the Government’s objection to the examination of the application by a Committee;
 
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 application concerns the monitoring by prison authorities of documents exchanged between the applicant and his lawyer during their meetings in prison. 2. At the material time the applicant was detained in Osmaniye First T‑Type Closed Prison, pending trial on charges of membership of the organisation described by the Turkish authorities as FETÖ/PDY (“Fetullahist Terror Organisation/Parallel State Structure”). Decisions of the Osmaniye Magistrate’s Court ordering the monitoring of documents exchanged in MEETINGS between DETAINEes AND THEIR LAWYERS
3. At the request of the Osmaniye chief public prosecutor’s office, on 6 January 2017 the Osmaniye Second Magistrate’s Court (Osmaniye İkinci Sulh Ceza Mahkemesi) decided – under section 59(5) of Law no. 5275 on the enforcement of sentences and preventive measures (hereinafter “Law no. 5275”), as amended by Emergency Legislative Decree no. 676 (see paragraph 11 below) – to carry out monitoring in the Osmaniye First and Second Closed Prisons of documents exchanged between the detainees and their lawyers. The decision described the following incidents involving inmates in Osmaniye penal institutions, detained on charges relating to the organisation described by the Turkish authorities as FETÖ/PDY, as grounds for the monitoring in question:
(i)  a letter containing unintelligible words was written by a detainee in prison and placed in a sealed envelope;
(ii)  a compass was found during a search of a room of those arrested;
(iii)  during a meeting in prison a lawyer attempted to covertly pass on a document to the detainee that he was representing;
(iv)  the wife of a detainee wiped off with her saliva an inscription on her left arm that had come to light during a body search. Having regard to the above-mentioned findings, the Magistrate’s Court concluded that, in their meetings with their lawyers, the inmates detained for the offences specified in section 59(5) of Law no. 5275 were endangering the safety of society and the penal institution, were being directed by terrorist organisations or other criminal organisations, were giving orders and instructions to those organisations, or were conveying secret, open or encrypted messages in their communications. Accordingly, the court decided that for a period of three months the detainees’ meetings with their lawyers should be subject to the following restrictions:
“... 3. Notwithstanding the principle of the sanctity of defence, in case the meeting with the detainee and his or her lawyer is held for the purpose of endangering the safety of society and of the penal institution, of directing terrorist organisations or other criminal organisations, of giving orders and instructions to those organisations or of transmitting secret, open or encrypted messages in their communications, the documents and/or their copies given by the lawyer to the detainee or by the detainee to the lawyer, as well as the files and records relating to the meetings between the detainee and the lawyer, shall be confiscated and the meeting held for this purpose shall be terminated immediately,
...”
4. At the end of the three-month period, the restrictions were renewed by decisions of a magistrate’s court, with similar content. In the decision of the Osmaniye First Magistrate’s Court dated 20 April 2018, it was decided that the same monitoring measures would be re-imposed on all detainees, including those who might be detained in future, for any of the offences specified in section 59(5) of Law no. 5275. Proceedings brought by the applicant against the monitoring of documents exchanged with HIS lawyer
5. The applicant submitted an objection to the Osmaniye enforcement judge on 3 May 2018 against the monitoring of documents exchanged with his lawyer and requested that it cease. 6. On 12 July 2018 the Osmaniye enforcement judge dismissed the objection, considering essentially that the monitoring of documents was in compliance with the above-mentioned decision of the Osmaniye Second Magistrate’s Court (see paragraph 3 above). 7. On 9 August 2018 the applicant lodged an appeal with the Osmaniye First Assize Court against the decision of the Osmaniye enforcement judge. The Assize Court dismissed his appeal on 6 September 2018 on the grounds that the decision of the enforcement judge was in accordance with the law and procedure. 8. Upon the dismissal of his appeal, the applicant lodged an individual application with the Constitutional Court on 13 December 2018, complaining about the monitoring of the documents exchanged with his lawyer. 9. Having examined the applicant’s complaint under the right to legal assistance by defence counsel, on 8 August 2019 the Constitutional Court declared the application inadmissible for non-exhaustion of legal remedies, referring to its previous Ahmet Sil (2) decision (application no. 2017/20969, 28 June 2018). 10. On 4 September 2019 the applicant was notified of the Constitutional Court’s decision. RELEVANT DOMESTIC LAW AND PRACTICE
11. Article 6 of Emergency Legislative Decree no. 676, published in the Official Gazette of 29 October 2016, amended paragraph (4) of section 59 of Law no. 5275 and added new paragraphs to that section. Following these amendments, the provision reads as follows:
Right to consult a lawyer and a notary
“Section 59 ... (4)  During the meeting, the documents and/or their copies, files and records kept by the convicted person and his or her lawyer regarding the conversation between them shall not be inspected; the conversation of the convicted person and his or her lawyer shall not be listened to or recorded. (5)  In the event of the discovery of information, materials or document which indicates that the safety of society and of the penal institution is endangered, that terrorist organisations or other criminal organisations are being directed, that orders and instructions are being given to these organisations, or that secret, open or encoded messages are being transmitted in their communications during the meetings of convicted persons – who are imprisoned for the offences defined in Article 220 of the Turkish Criminal Code and in the Fourth, Fifth, Sixth and Seventh Parts of Chapter IV of Volume II of the Turkish Criminal Code or for the offences falling within the scope of the Prevention of Terrorism Act (Law no. 3713 of 12 April 1991) – then at the request of the chief public prosecutor’s office and by order of the enforcement judge the meetings may, for a period of three months, be recorded in audio or video format via a technical device, an officer may be present during the meeting so as to monitor the meeting between the convicted person and his or her lawyer, the documents or copies of documents and files given by the convicted person to his or her lawyer and vice versa and the records kept by them in relation to the conversations between them may be seized, or the days or hours of these meetings may be restricted.
... (9)  The decisions delivered by the enforcement judge pursuant to this section may be challenged in accordance with Law no. 4675.
... (11)  The judge at the investigation stage and the relevant court at the trial stage shall be authorised to deliver a decision according to the provisions of this section ...”
12. Under Law no. 7070 enacted on 1 February 2018 and published in the Official Gazette on 8 March 2018, Emergency Legislation Decree no. 676 was approved by the National Assembly, thus becoming law.

Outcome for Article 8: violation