The ECHR found a violation of the requirements of Article 2 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.

Заголовок: The ECHR found a violation of the requirements of Article 2 of Protocol No. 1 to the Convention for the Prot Сведения: 2020-04-03 04:53:48

ECHR judgment of June 18, 2019 in the case of Mehmet Resit Arslan and Orhan Bingol v. Turkey (application No. 47121/06 and other complaints).

In 2006, the applicants were assisted in preparing applications. Subsequently, the applications were consolidated and communicated by Turkey.

In the case, a application was successfully considered regarding the prisoners' inability to use a computer and have access to the Internet in order to receive higher education. The case contained a violation of Article 2 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms.


Circumstances of the case


In June 2006, two applicants convicted of terrorist activities passed entrance exams to higher educational institutions. The first applicant was enrolled in the 2006-2007 academic year at the Faculty of Economics and Management, which provided distance learning opportunities. The second applicant received grades that allowed him to go to college, and he was enrolled in the university for the 2006-2007 school year.

In this regard, and on the basis of relevant legislation, the applicants requested that they be allowed to use a computer and access the Internet in the premises allocated for this purpose by the administration of the correctional institution in order to be able to obtain higher education. The first applicant also requested permission to use the calculator and the electronic translator in his cell. The correctional authorities denied the applicants their requests. Complaints about these decisions were unsuccessful.


QUESTIONS OF LAW


Regarding compliance with Article 2 of Protocol No. 1 to the Convention. (a) Scope of the first sentence of Article 2 of Protocol No. 1 to the Convention. The applicants' requirements submitted to the administrations of the correctional facilities concerned the use of audiovisual, informational or electronic materials in order to prepare for entrance exams and study at the university. Consequently, it does not matter whether the second applicant was subsequently enrolled in a university. Both applicants planned to study at higher education institutions that provided distance learning opportunities, and they confirmed their requirements by the fact that in 2006 they passed entrance exams to higher education institutions.

Turkish law provides convicts with the opportunity to study in correctional institutions within the limits of these institutions. In particular, correctional institutions must not impede access to educational activities held in these institutions. In this regard, in accordance with paragraph 3 of Article 67 of Law No. 5275, the use of audiovisual teaching aids and computers, as well as access to the Internet are allowed under the control of the administration in the premises allocated for this purpose by the administration of the correctional institution as part of reintegration or educational programs. This opportunity is a material means, without which it is impossible to exercise the right to education, since it allows convicts to prepare for entrance examinations at an educational institution and, if necessary, to study there. According to the established case-law of the European Court, access to educational institutions that exist at a particular point in time is an integral part of the law enshrined in the first sentence of Article 2 of Protocol No. 1 to the Convention. Consequently, this complaint is within the scope of this article.

(b) Merits. Turkish law recognized prisoners the opportunity to use a computer and have access to the Internet under certain conditions. Such use, however, could be placed under the control of the administration of the correctional institution and be restricted in relation to persons who represented a certain danger or who were convicted of being members of an illegal organization. Accordingly, the restriction on the applicants' rights was provided for by law and could pursue the legitimate goals of protecting public order and preventing crime.

The method of regulating the conditions for access to audiovisual educational facilities, a computer and the Internet relates to the limits of the margin of appreciation acceptable for respondent states in the field of human rights regulation. In addition, neither during the proceedings at the domestic level, nor during the proceedings before the European Court, any specific justifications related to the insufficient funds of the relevant correctional institutions were given.

At the same time, the applicants ’desire to seize the opportunity provided by law arose from their desire to receive an education.

However, the refusal to allow the first applicant to use a calculator and an electronic device with translation functions from English to Turkish was justified, especially since the use of this device was allowed under supervision in a place that was to be determined by the administration of the correctional institution.

As regards access to computers and the Internet, although the security concerns voiced by the Turkish authorities regarding the nature of the crimes for which the applicants were convicted may be considered appropriate, the Turkish courts did not conduct a detailed analysis of the security risks and did not comply, on the one hand , its task of comparing the various interests involved in the case, and, on the other hand, its obligation to discourage any abuse on the part of the administrations of correctional institutions. Under these conditions, the Court is not convinced that in the present case there were sufficient grounds for refusing the authorities in respect of the applicants' requests, the purpose of which was to exercise the right enshrined in paragraph 3 of Article 67 of Law No. 5275.

The same shortcomings did not allow the European Court to establish effectively whether the Turkish authorities applied the standards established in the case-law of the European Court in order to compare the interests involved in the case.

Thus, the Turkish courts did not ensure a fair balance between the applicants' right to education and the requirements of public order protection.


RESOLUTION


In the case, there was a violation of the requirements of Article 2 of Protocol No. 1 to the Convention (adopted unanimously).


COMPENSATION


In application of Article 41 of the Convention. The Court ruled that a finding of a violation of the Convention would in itself constitute sufficient just satisfaction for non-pecuniary damage, and claims for pecuniary damage were rejected.

 

 

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