Banning the release of a prisoner’s novel for publication is a violation of freedom of expression
JUDGMENT
Sarıgül v. Turkey 23-5-2017 (no. 28691/05)
SUMMARY
Freedom of expression. Novel of a prisoner. The case concerned the seizure, by the prison authorities, of a draft novel that Mr Sarıgül had written in prison, and the seizure of a letter he wanted to send to his lawyer. The Court found in particular that the seizure of Mr Sarıgül’s manuscript constituted an interference with his right to freedom of expression, then noted that the interference was not “in accordance with the law” under Article 10 of the Convention. The Court referred to its previous finding that the prison administration rules, on which the authorities had based their decision to seize Mr Sarıgül’s manuscript, did not indicate with sufficient clarity the scope and terms of the authorities’ discretionary powers in such matters, and that their practical application did not appear to remedy that shortcoming.
The Court held that the seizure of the prisoner’s handwriting constituted an interference with the Right to Freedom of Expression and that the prohibition imposed on him was not provided for by law.
PROVISION
Article 10
PRINCIPAL FACTS
The applicant, Resul Sarıgül, is a Turkish national who was born in 1962. He was being held in Erzurum Prison (Turkey) when he lodged his application.
On 1 December 2004 Mr Sarıgül deposited a handwritten draft of a novel with the prison administration, requesting that it be sent to his lawyer, who was supposed to forward it to his family with a view to publication. On 6 December 2004 the chairman of the prison board responsible for reading prisoners’ correspondence reported that the text supported an illegal organisation, insulted the police and used abusive and inappropriate language, including expressions that were directed against women, public morale and beliefs. The manuscript was thus sent to the prison administration’s disciplinary board, which decided to seize it on 15 December 2004. On 16 December 2004 Mr Sarıgül appealed to the Erzurum sentence executions judge to have that decision revoked, stating that the novel was a work of fiction, but his appeal was dismissed on 7 January 2005. Mr Sarıgül appealed against the decision to the Erzurum Assize Court, invoking his freedom of expression, but was unsuccessful.
On 25 January 2005 Mr Sarıgül handed the prison administration a letter for his lawyer, together with the decision of the sentence executions judge of 7 January 2005 and his further appeal against that decision. The letter was seized by the prison administration and Mr Sarıgül’s request for annulment of that decision was rejected. In addition, a criminal investigation was opened against Mr Sarıgül for public denigration of Turkishness, of the Republic, of the armed forces and of the State security services, but the proceedings were discontinued as one of the elements of the offence – that of publicity – was lacking. In March 2006 the draft novel was returned to Mr Sarıgül.
THE DECISION OF THE COURT
Article 10 (freedom of expression)
The Court observed that the seizure of Mr Sarıgül’s manuscript constituted an interference with his right to freedom of expression. That interference was not “in accordance with the law” within the meaning of Article 10 § 2 of the Convention.
Firstly, the disciplinary board had not expressly relied on any statutory basis in ordering the seizure of the manuscript, explaining only that the text in question contained inappropriate words and expressions according to the administration’s pre-established verification table, of which no details were given in the application file. The Court reiterated that any rules concerning the supervision of prisoners’ correspondence which did not circumscribe the scope or define what was meant by “inappropriate” could not meet the requirement of foreseeability.
Secondly, the correspondence-reading board had based its decision to forward the manuscript to the disciplinary board on a circular concerning the prisoners’ contacts with the outside world. That circular, considered by the Government to be the legal basis for the interference, referred to Articles 144 and 147 of the prison administration rules – as in force at the time – and sought to clarify the implementation of the measures imposed by those rules. The Court thus found that the legal basis for the interference was constituted by Articles 144 and 147. The Court referred to its previous finding that the prison administration rules did not indicate with sufficient clarity the scope and terms of the authorities’ discretionary powers in such matters, and that their practical application did not appear to remedy that shortcoming. It saw no reason to depart from that approach and concluded that the interference with Mr Sarıgül’s right to freedom of expression was not “in accordance with the law”. It thus held that there had been a violation of Article 10 of the Convention.
Article 6 (right to a fair hearing)
As regards the seizure of the letter of 25 January 2005, the Court noted that Mr Sarıgül had not exhausted all the domestic remedies because he had not appealed against the decision of the executions judge of 8 February 2005.
As regards the complaints concerning the unfairness of the domestic proceedings, those complaints had been submitted to the Court by 11 May 2010, more than six months after the final domestic decision (decision of the Erzurum Assize Court of 1 March 2005), and were thus out of time.
The Court thus rejected those complaints pursuant to Article 35 §§ 1 and 4 of the Convention.
Article 41 (just satisfaction)
The Court held that Turkey was to pay the applicant 1,500 euros (EUR) in respect of non-pecuniary damage. injection steroide
