Events
The applicant, who was housed in a type T closed penal institution, complained that the conditions were not appropriate due to the large number of people in the room where he was being held, and that the newspaper he requested had not been sold; he applied to the execution judge with a request to reduce the number of people in the room and sell the newspaper. The judge’s office rejected the applicant’s request on various grounds. The applicant’s objection to the judge’s decision was also definitively rejected by the high criminal court.
The Allegations
The applicant claimed that the prohibition of ill-treatment due to being kept in a crowded room at the prison also violated the freedom of expression due to the refusal of the request to purchase periodicals through the institution’s administration, the fee of which was covered by him.
The Court’s Assessment
A. In Terms of the Claim that the Prohibition of Ill-Treatment has Been Violated
17 of the Constitution. the article also protects that the conditions of a prisoner held in a penitentiary institution should be in a manner befitting human dignity. The method of execution and the behavior during the execution process should not put prisoners in a more distressed or tormented situation than the inevitable level of suffering that is the natural result of deprivation of liberty. In this context, three factors are taken into account in complaints about overcrowding and lack of personal space. These are that there should be at least 4 m2 of Decking area for each prisoner, each prisoner should have a separate sleeping place, and the general surface of the ward should be such that prisoners can move freely between furniture. The absence of one of the three mentioned factors will in itself create a strong presumption that the conditions of detention violate the prohibition of ill-treatment.
In addition, if the minimum living area for one person in multi-person wards falls below 4 m2, Article 17 of the Constitution shall apply. the strong presumption that it is assessed that it will arise for a violation of the article can be eliminated if three elements coexist. Dec. First of all, the Decrement of the minimum personal area below 4 m2 should be short-term, small-scale and occasional. Secondly, such reductions should be supported by adequate freedom of movement outside the ward and adequate out-of-ward activities. Finally, the applicant must be held in a penal institution that is generally appropriate and does not have any other aggravating factors for the conditions of detention.
In the concrete case, the applicant was housed for 280 days in the execution facility where he filed a complaint. During this period, the minimum personal space required to be provided to the applicant fell below 4 m2 for a total of eight months in successive time periods. This reduction in the minimum personal living space in itself constitutes a strong presumption that the conditions of detention violate the prohibition of ill-treatment. In this context, the first thing that should be evaluated is the duration, frequency and diameter of the minimum personal area falling below 4 m2. It will not be said that the lack of personal space, which persists for a period of eight months, is short-term, small-scale and occasional. Dec. For this reason, it was concluded that the space reductions that occurred -taking into account the individual and collective effects of the conditions of detention on the applicant – reached the weight level necessary to qualify as a ban on ill-treatment.
The Constitutional Court has ruled that the prohibition of ill-treatment has been violated on the grounds described.
B. In Terms of the Claim that the Freedom of Expression has Been Violated
Constitutional Court Recep Bekik and others ([GK], B. No: 2016/12936, 27/3/2019) in his decision, he determined the constitutional principles to be applied by examining an application whose events and facts are of a similar nature to the concrete application. In this decision, it was concluded that the freedom of expression was violated on the grounds that there is no mechanism to prevent arbitrariness in whether periodicals are delivered to prisoners and convicts in penal institutions, to ensure the same application to those in the same legal situation, to guarantee clear, guiding and stable administrative practices. Although a number of measures have been taken with the Law No. 7242 and related regulatory actions after the decision of Recep Bekik and others, it has been understood that the application in hand relates to interventions prior to the legal and practical changes in question. For this reason, there is no situation that requires a departure from the principles explained in the aforementioned decision and the conclusion reached.
The Constitutional Court has ruled that the freedom of expression has been violated on the grounds described.