DECEMBER 2023

EUROPEAN COURT OF HUMAN RIGHTS

İLERDE AND 10 OTHERS v. TÜRKIYE ■ Applications nos. 35614/19 and 10 others

Inadequate conditions of detention (mainly due to systemic overcrowding), compensation claim before administrative courts deemed ineffective remedy due to fault-based liability approach: violation of Article 3
Detention in remote facility resulting in fewer family visits, not compensated by alternative measures: violation of Article 8

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HALİT KARA v. TÜRKIYE ■ Application no. 60846/19

Refusal of the prison authorities to dispatch a letter addressed by a prisoner to his brother, who was detained in another prison: violation of Article 8.

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Court of justice OF THE EUROPEAN UNION

GN ■ Case C-261/22 ■ Request for a preliminary ruling (Italy)

The executing judicial authority can refuse to execute a European arrest warrant in respect of a mother of young children where there are systemic or generalised deficiencies in the conditions of detention of mothers of young children and of the care of those children in the issuing Member State and where there is a risk of breach of the fundamental rights of the persons concerned on account of these conditions.

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EUROPEAN COURT OF HUMAN RIGHTS

İLERDE AND OTHERS v. TÜRKIYE ■ Applications nos. 35614/19 and 10 others ■ Second Section ■ 5 December 2023

Art 3 (substantive) ■ Overcrowding ■ Individual outdoor yard (annexed to each cell and available during daylight hours) and sanitary facilities excluded from calculation of floor space for each applicant ■ Violation in relation to applicants with personal space below 3 sq. m. ■ Sleeping on a mattress on the floor taken alone or in conjunction with other material aspects of detention not amounting to degrading or inhuman treatment
Art 8 ■ Applicant held in a penal facility located far away from his family’s place of residence ■ Lack of alternative measures to compensate fewer visits
Art 35 § 1 ■ Exhaustion of domestic remedies ■ Compensation claim before the administrative courts ineffective remedy in case circumstances due to fault-based liability approach

Facts ■ The case concerned 11 Turkish nationals who were detained (pending trial or appeal proceedings) in closed penal institutions for alleged terrorism-related offences in connection with the attempted 2016 coup.
Relying on Article 3, the applicants complained of inadequate detention conditions mainly caused by systemic overcrowding.
Relying on Article 8, two applicants also complained of being held in remote facilities, which resulted in fewer family visits for them. Their transfer requests were rejected owing to prisons elsewhere lacking space.

Law ■ Article 3

(a) Admissibility

The Court dismissed the Government’s objection that the applicants should have filed a complaint to the prison administration board. It recalled that “as a rule, it would be unduly formalistic to require applicants to exercise a remedy which the relevant domestic authorities would not oblige them to exhaust” (para. 146) and observed that the applicants “raised their complaints regarding their detention conditions before the relevant enforcement judge and assize court, and then finally before the Constitutional Court”, none of which “considered that the applicants had not complied with the requirement to first raise a complaint with the prison administration” (para. 147).

The Court also dismissed the Government’s objection that the applicants should have filed a complaint to the enforcement judge. The Court first noted that Türkiye experienced a situation of “systemic” overcrowding (para. 153), resulting from the surge in the prison population following the 2016 coup. In these circumstances, enforcement judges’ decisions e.g. to transfer applicants to another facility, would “assist only individual complainants at the expense and to the detriment of other detainees, rather than addressing the system as a whole” and would therefore “not be considered effective” (idem). What is more, the Court noted that there is no specific minimum standard with respect to floor space in national legislation that would allow enforcement judgments to “assess in concrete terms whether prisoners had adequate living space in the light of other cumulative conditions” (idem). Consequently, while this remedy was deemed effective in previous cases (Sakin v. Turkey (dec.), no. 20616/13, 2016), the circumstances rendered it ineffective. As a matter of fact, the Government did not provide any decision of the enforcement judges offering relief in the particular circumstances following the attempted coup.

Lastly, the Court dismissed the Government’s objection that applicants should have applied to the civil or administrative courts for compensation. The Court noted at the outset that “there is confusion in domestic law and practice as to which type of proceedings – administrative or civil – are to be pursued when lodging a compensation claim against the prison authorities” (para. 161). It added that, irrespective of the competent court, the remedy lacks a preventive component as “it was not demonstrated […] that the domestic courts […] imposed (or could impose) immediate measures in the form of injunctions or otherwise in order to change a situation” (idem).
The Court was also not convinced that the remedy offered adequate compensation. The examples provided by the Government “postdate the facts of the cases and the dates when the applications were lodged with the Court” (para. 164). Furthermore, while “poor conditions of detention are not necessarily due to the failings of individual officials but are often the product of more wide-ranging factors […], especially when the nature of the problem is systemic” (idem), in the examples provided, the administrative courts condition the award of a compensation “on the existence of a service fault on the part of the administration” (para. 164).
Furthermore, the absence of any legal standards on the minimum floor space per prisoner “have contributed to administrative courts deviating from the Court’s case-law principles with respect to the methodology for assessing overcrowding complaints” (idem).

(b) Merits

The Court noted at the outset that the Government submitted incomplete information on the applicants’ detention conditions and that some of the applicants’ submissions disputing the Government’s information were “not precise and […] not based on objective and concordant proof” (para. 173). It also noted that while there are no CPT reports in respect of the facilities examined in the present case, other CPT reports concerning Turkish prisons “noted the general problem of overcrowding in the aftermath of the attempted coup” (idem).

The Court revised the information submitted by the Government by “excluding the sanitary facilities and outdoor yards from the calculation of overall space” (para. 176). As regards the latter, on which the Court gave some guidance for the first time, it stated that while outdoor yards are not to be included in this calculation, “the availability of unrestricted access to an outdoor yard during daylight hours is a weighty factor which should be assessed when considering overall material conditions of detention” (para. 175).

As regards applicants who had less than 3 sq. m. of personal space, noting that the period of detention under these conditions had not been “short, occasional or minor”, the presumption of violation of Article 3 cannot be rebutted (para. 188).

As regards applicants who had between 3 sq. m. and 4 sq. m. of personal space, the Court noted that the fact that they “had unlimited access to the outdoor yards of their units during daylight hours, where they could have the benefit of natural light and fresh air, and could use those spaces for basic individual exercise, should be taken into account as a significantly alleviating factor in relation to the scarce allocation of personal space” (para. 191). Furthermore, the Court observed that “the overall conditions of the cells, including cleanliness, ventilation and lighting, were adequate vis-à-vis Convention standards” (para. 193). As regards applicants who had to sleep on mattresses on the floor, the Court, while admitting being “uneasy” about this fact, considered that “this aspect, taken alone or in conjunction with other material aspects of their detention, [did not subject] them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention” (para. 194). The Court therefore declared there had been no violation of Article 3.

As regards applicants who had more than 4 sq. m. of personal space, the Court found the submissions (mentioning lack of hygiene, insufficient lavatory facilities and insufficient ventilation) to be insufficiently substantiated. The Court also dismissed the applicants claims that he was exposed to a noisy environment (“this is a general issue stemming from the nature of detention in multi-occupancy units and having to share space with other inmates”, para. 197) and that he was allowed to buy only 15 litres of bottled water per week (it “does not appear to be inadequate”, idem). The Court therefore found there had been no violation of Article 3.

Conclusion ■ Violation of Article 3 in respect of eight applicants; no violation of Article 3 in respect of three applicants.

Law ■ Article 8

(a) Admissibility

The Court accepted the Government’s objection that the first applicant’s complaint should be considered inadmissible “as in his individual appeal before the Constitutional Court, the applicant did not raise, even in substance, his complaint regarding the distance of the prison facility from his family’s place of residence” (para. 208).

The Court rejected the Government’s objection that the second applicant should have sought to challenge before the administrative court the prison administration’s decision to reject their transfer request. The Court observed that the applicant had lodged a complaint before the enforcement judge, who is competent to examine complaints with respect to transfer requests and reiterated that “when a remedy has been pursued, [the] use of another remedy which has essentially the same objective is not required” (para. 205, see Micallef v. Malta [GC], no. 17056/06, 2009). As regards the Government’s objection that the applicant should have lodged actions for a full remedy with administrative courts, the Court observed that no decision by an administrative court awarding compensation in a situation comparable to that of the applicants had been submitted.

(b) Merits

The Court established the fact that there had been an interference with the applicant’s right to respect for family life. To visit him, his family members had to take a 1,000 km journey involving three different connections. This remoteness was not compensated by the high number of visits he received (his mother visited him once, his family visited him 67 times in five years).

The Court also observed that the applicant “was not provided with any reasoning when he was first transferred” from Nevşehir (in central Türkiye, close to his family) to İzmir prison (on the Aegean coast). These transfers therefore took place “in the absence of procedural safeguards against arbitrary interference with his right to respect for family life” (para. 219).

Furthermore, while the applicant’s subsequent requests to be transferred to a facility closer to his family were rejected on grounds of overcrowding, the Court observed that the authorities “did not make any concrete assessment of whether the applicant could be allocated to another prison relatively closer to his family, or whether any alternative means of making up for the fewer visits he received would be possible, such as longer visits (as recommended as a general measure in the decision of the Ombudsman) or even longer telephone calls” (idem).

Conclusion ■ Violation of Article 8 of the Convention (one applicant).

HALİT KARA v. TÜRKIYE  ■ Application no. 60846/19 ■ Second Section ■ 12 December 2023

Art 8 ■ Correspondence ■ Refusal of the prison authorities to dispatch a letter addressed by the applicant to his brother ■ Domestic authorities’ failure to balance competing interests at stake and prevent arbitrary interference with applicant’s right ■ Not demonstrated that reasons adduced relevant and sufficient or measure necessary in a democratic society ■ Impugned measure not strictly required by special circumstances of the state of emergency

Facts ■ The applicant was imprisoned for membership of an armed terrorist organisation described by the Turkish authorities as the “Fetullahist Terror Organisation/Parallel State Structure” (FETÖ/PDY). He complained that the prison authorities refused to dispatch a letter addressed to his brother (who was detained in another prison), on the grounds that it contained “reprehensible” statements (para. 8, namely description of ill-treatment by public officials in police stations).
The enforcement judge and the Assize Court dismissed the applicant’s complaints, arguing that the impugned decision had been given in compliance with domestic law. The Constitutional Court dismissed as manifestly ill-founded the applicant’s complaint that his freedom of expression and his right to respect for his correspondence had been violated.

Law  ■ Article 8

The Court established that there had been an interference with the applicant’s rights under Article 8 (as “the actual content of the correspondence is immaterial in determining whether a restrictive measure constitutes an ‘interference’: what counts is whether the private correspondence was interfered with”, para. 48 – see Frérot v. France, no. 70204/01, 2007 and Mehmet Nuri Özen v. Türkiye, no. 15672/08, 2011). The Court also accepted that the interference was lawful.

As regards the necessity of the interference, the Court first observed that the trial courts accepted the prison administration argument that the letter contained “false and slanderous statements towards officials” (para. 54), without carefully considering the applicant’s arguments (that no official or authority was specifically mentioned, and that newspapers documented similar facts) and “adequately weighed up his right to respect for his correspondence against other interests at stake, such as the maintenance of prison order and discipline” (para. 54). Similarly, the Constitutional court merely held that there had been no interference with the applicant’s rights (para. 57).

Furthermore, while the letter and its enclosure were 16-pages long, the prison administration based its decision not to dispatch the letter based on a single paragraph containing the said statements. The authorities “did not provide adequate reasoning as regards the possibility of dispatching the letter after redacting the specific parts that were considered to be objectionable” (para. 55, see Pfeifer and Plankl v. Austria, 1992, Series A no. 227).

The Court added that the impugned measure “cannot be said to have been strictly required by the special circumstances of the state of emergency” following the 2016 coup attempt (para. 59).

Conclusion ■ Violation of Article 8

Article 41 ■ No claim.

court of justice of the European union

GN ■ Case C-261/22 ■ Grand Chamber ■ 21 December 2023

Arts 1 & 15 of FD EAW ■ Reference for a preliminary ruling ■ European arrest warrant ■ Grounds for non-execution ■ Respect for private and family life ■ Best interests of the child ■ Right of every child to maintain on a regular basis a personal relationship and direct contact with both parents ■ Mother of young children

Facts ■ A Belgian judicial authority issued in 2020 a European arrest warrant (EAW) against GN for the execution of a sentence (handed down in absentia) of five years’ imprisonment for the offences of trafficking in human beings and facilitating unlawful immigration. GN was arrested in Italy in September 2021. At the time of her arrest, GN was living with her minor child who was under three years of age, and was pregnant with a second child.

The Court of Appeal of Bologna, Italy, requested the Belgian authorities to provide information on domestic arrangements for enforcement of sentences imposed on mothers living with minor children, the custodial conditions to which GN would be exposed upon surrender, measures that would be taken in relation to her minor child and the possibility of a retrial in the proceedings having led to GN being sentenced to a five-year prison sentence.

Receiving no reply to its request, the Court of Appeal considered it was uncertain that the Belgian legal order “provides for custodial arrangements comparable to those of the executing Member State, which protect the mother’s right not to be deprived of her relationship with her children and her right to care for them, and which ensure that children receive the necessary maternal and family assistance” as provided for in the Italian Constitution and the European Charter of Fundamental Rights (ECFR, para. 19). The Prosecutor General at the Court of Appeal of Bologna appealed this judgment before the Supreme Court of Cassation, who decided to refer the case to the CJEU.

The question at hand is whether the Framework Decision 2002/584 on EAW (FD EAW) should be interpreted “as meaning that [it does] not permit the executing judicial authority to refuse or in any case defer the surrender of a mother who has minor children living with her” and, if so, whether the relevant articles in the FD EAW are compatible with the ECFR, the case law of the ECtHR, “and the constitutional traditions common to the Member States, in so far as they require the surrender of the mother, thus severing ties with minor children living with her without considering the best interest of the child”.

Law  ■ Articles 1 & 15 of FD EAW

After The Court recalled that, in application of the principle of mutual recognition, refusal to execute an EAW “is intended to be an exception which must be interpreted strictly” (para. 37, see E.D.L., C‑699/21, 2023 on ground for refusal based on the requested person’s health). It also observed that the FD EAW does not provide that an EAW may be refused “on the sole ground that the person who is the subject of that arrest warrant is the mother of young children living with her” (para. 38).

However, when implementing the FD EAW, EU member states must observe their fundamental rights obligations. After recalling the main principles which must govern the action of public authorities with regard to the right to private and family life (Art. 7 ECFR) and the rights of the child (Art. 24 ECFR), the Court asserted that “the existence of a real risk that the person in respect of whom a [EAW] has been issued and/or his or her children would, if that person is surrendered to the issuing judicial authority, suffer a breach of those fundamental rights is […] capable of permitting the executing judicial authority to refrain, exceptionally, from giving effect to that [EAW]” (para. 43).

To establish that such a risk exists, a mere “lack of certainty […] as regards the existence, in the issuing Member State, of conditions comparable to those existing in the executing Member State concerning the detention of mothers of young children and the care of those children” does not suffice (para. 44).

The executing judicial authority’s decision to refuse to execute an EAW must be based on a two-step examination. First, it must establish that there are “systemic or generalised deficiencies in the conditions of detention of mothers of young children or of the care of those children in the issuing Member State, or deficiencies in those conditions affecting more specifically an objectively identifiable group of persons, such as children with disabilities” (para. 45).
Second, it must also determine “specifically and precisely, to what extent the deficiencies identified in the first step of the examination […] are liable to have an impact on the conditions of detention of the person who is the subject of the [EAW] or of the care of his or her children, and whether, having regard to their personal situation, there are substantial grounds for believing that that person or his or her children will run a real risk of breach of those fundamental rights” (para. 48). To that end, the executing judicial authority is entitled to request supplementary information from the issuing judicial authority for it to be able to conduct each step of the examination.

The Court lastly reiterated that while the FD EAW allows for the postponement of the EAW for humanitarian reasons, this should remain temporary and exceptional, and is therefore “impracticable for a considerable period of time” (para. 56 – see also E.D.L. cited above).

Conclusion ■ The executing judicial authority can refuse to execute a European arrest warrant in respect of a mother of young children where there are systemic or generalised deficiencies in the conditions of detention of mothers of young children and of the care of those children in the issuing Member State and where there is a risk of breach of the fundamental rights of the persons concerned on account of these conditions.

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