Individual Application

The Facts

The applicant was detained on remand in a penitentiary institution for being a member of an armed terrorist organisation.

Pursuant to the Circular of 10 October 2016, which was issued by the Directorate General for Prisons and Detention Houses (“Circular”), the penitentiary institutions throughout the country were informed by the chief public prosecutor’s offices that “with the exception of faxes and letters in sealed envelopes sent by remand and convicted prisoners to their lawyers for defence purposes or for submission to the authorities, all letters, faxes and requests must be scanned and uploaded onto the National Judiciary Informatics System (“UYAP”) server. The penitentiary institutions took the necessary steps in line with the Circular. The letters, which were sent and received by the applicants, were accordingly uploaded onto the UYAP server within the scope of the said Circular.

The applicant filed an application with the magistrate judge, seeking the termination of this practice and deletion of his records. The magistrate judge, examining the applicant’s application, held that the practice in question was not unconstitutional, stressing that as envisaged in Article 68 § 2 of the Law no. 5275 on the Execution of Penalties and Security Measures, the letters, faxes and telegraphs sent and received by the convicts shall be monitored by the Correspondence-Reading Board, and in the absence of such a board, by the highest official of the penitentiary institution. The applicant’s challenge against the magistrate judge’s decision was dismissed by the assize court.

The Applicant’s Allegations

The applicant maintained that the uploading of all letters, which he wished to send or which were sent to him in the penitentiary institution where he was detained on remand, onto the UYAP server had been in breach of his right to respect for private life and freedom of communication.

The Court’s Assessment

The procedure whereby the prisoners’ correspondences are uploaded on the UYAP server is predicated on Article 38/A of the Code of Criminal Procedure no. 5271, Article 68 of the Law no. 5275, Articles 122 and 123 of the By-law on the Administration of Penitentiary Institutions and Execution of Penalties and Security Measures (“By-law”), as well as on the Circular.

It has been observed that the restriction imposed on the correspondences of the prisoners in the penitentiary institutions by way of monitoring them is regulated in Article 68 of the Law no. 5275, and the By-law issued with respect to the said regulation lays down the details of the monitoring procedure and consequences thereof. In considerations of these regulations, it has been observed that the penitentiary institutions are authorised to monitor the correspondences, and that accordingly, the letters found non-prejudicial shall be delivered or sent to the addressees, whereas those found prejudicial shall be kept in the penitentiary institution.

Besides, Article 38/A of Law no. 5271 provides for that all data, information, documents and decisions regarding the criminal trial procedures may be processed, recorded and saved through the UYAP server. Taken into consideration both laws and the relevant legislation as a whole, it may be said that there is a statutory regulation which enables, in principle, the uploading of the prisoners’ correspondences onto the UYAP server within the scope of the monitoring power conferred upon the penitentiary institutions. However, merely the formal existence of statutory regulations regarding the restriction of fundamental rights and freedoms does not suffice. The lawfulness requirement also entails a substantive content, and in this sense, the quality of the law comes into prominence.

In this sense, it should also be stressed that regard being had to the fact that the prisoners’ correspondences may involve issues which are related to their private lives and which the prisoners wish to remain confidential, as well as which involve the information likely to fall into the scope of personal data, the laws imposing restrictions on the fundamental rights and freedoms must indicate the basic principles and procedures with respect thereto. Accordingly, the relevant law or the legislation issued on the basis of this law must set the principles regarding the scope of the systematic uploading of the correspondences and the storage of the letter and private information and personal data included therein. Moreover, the statutory arrangements must also embody clear and detailed provisions that would provide those concerned with sufficient safeguards against the excess of power and arbitrariness with respect to the storage period of the prisoners’ correspondences, the access to these correspondences by third persons, the use and destruction of the data included therein, and ensuring the confidentiality of these data.

It has been considered that the regulation giving rise to the present case enabled the uploading and storage of the prisoner’s correspondences, which were found non-prejudicial, which contained personal data and which were not related to the trial processes, onto the UYAP, and that it thus gave rise to the departure from the procedure established by the legislation on the basis of whether the given letter was prejudicial or not.

It should be also emphasised that the impugned procedure enables the systematic uploading of all correspondences onto the UYAP server, without making any distinction on the basis of the characteristic of the offence leading to conviction or the statuses of a detainee and convict that indeed vary in the criminal law, and regardless of whether they are prejudicial. It has been further observed that there is no clear statutory arrangement as to the period during which the prisoner’s correspondences will be stored in the system, under which conditions they will be accessed and used by third persons, the authorities to which the penitentiary institution may disclose them, and how the personal data and privacy will be protected. It has been also observed that there is an uncertainty with respect to these issues also in practice. In the light of these explanations, it has been concluded that the impugned interference had no legal basis.

Consequently, the Court has found violations of the right to respect for private life and freedom of communication.