Procedural and substantive deference: the Court’s assessment of a blanket ban on prisoners receiving internet printouts and photocopies in Tergek v. Türkiye

by Harriet Ní Chinnéide

Introduction

Tergek v. Türkiye concerned a blanket ban on prisoners receiving any internet printouts or photocopied documents, based solely on their format. The Court found that the ban constituted a proportionate restriction on the applicant’s right to receive information under Article 10 ECHR largely because reviewing a large volume of printed or photocopied documents, on top of regular publications, would pose an excessive administrative burden on administrative staff. It concluded that the respondent State had convincingly demonstrated that the ban was based on a careful and detailed balancing of the competing interests.

However, as argued by Judges Bårdsen, Seibert-Fohr and Lavapuro in their joint dissenting opinion, it is difficult to reconcile the approach taken by the majority with the Court’s established case law and questions can be asked both about the conclusion reached by the majority as well as the approach employed. Having set out the facts of the case and summarising the Court’s judgment, this blog post will reflect on the arguments made by the dissenting judges and the argumentation employed by the majority.

Facts

The applicant’s complaint centres around the prison authorities’ withholding of two separate pieces of correspondence sent to him, the first from his sister and the second from his wife. At the time of the events giving rise to his complaint, the applicant was detained following his conviction for membership of an armed terrorist organisation described by the Turkish authorities as the Fetullahist Terror Organisation/Parallel State Structure (FETÖ/PDY). The correspondence consisted of letters, notes, and pictures as well as internet printouts.  

The first letter was sent to the applicant by his sister in October 2018. It contained 31 pages of documents printed from the internet. Citing domestic law on the execution of sentences and preventive measures (Section 68(3) of Law no. 5275), the prison’s Disciplinary Board withheld the letter. The Disciplinary Board claimed that its content included statements which could pose a threat to prison security, that its authorship was unclear, and the information it contained could facilitate communication within the FETÖ/PDY organisation. The applicant objected, explaining that his sister was a physiotherapist and the internet printouts consisted of rehabilitation exercises for an ankle injury he had received, as well as materials related to a distance-learning course he was enrolled in. The enforcement judge upheld his objection, referencing relevant ECtHR and Turkish Constitutional Court case law. The letter was delivered to the applicant in October 2019.

The second letter was sent to the applicant by his wife in December 2018. It contained 61 pages of documents printed from the internet, a one-page hand-written note and four pictures. The Disciplinary Board again invoked Section 68(3) of Law no. 5275 and referred to a prior decision of the Administration and Monitoring Board, which had warned of the general risks posed by printed internet materials in prisons. The Board withheld the internet printouts without addressing their content in any way. The applicant objected to that decision before the enforcement judge, arguing again that the documents contained information on various physiotherapy exercises and real‑estate management and were essential for both his rehabilitation and his ongoing education. The applicant’s complaint was dismissed.

The applicant claimed that his rights under Article 8 had been violated due to the delayed delivery of the internet printouts he was sent by his sister and the withholding of printed documents sent to him by his wife.

Judgment

Although the applicant complained under Article 8, the Court decided to examine his complaint under Article 10. The Court deemed his complaint with regards to the first letter inadmissible as the domestic courts had already recognised that his rights were violated and provided him with redress. However, it proceeded to examine his complaints regarding the second letter.

Noting that the parties did not dispute that the interference was prescribed by law, and accepting that it pursued a legitimate aim (the prevention of disorder and crime), the Court proceeded to assess whether the reasons for the interference were ‘relevant and sufficient’ and whether the ban on internet printouts and photocopies was ‘proportionate to the legitimate aim pursued.’

In assessing whether relevant and sufficient reasons were provided, the Court observed that its task is not to take the role of the competent domestic courts but to review the decisions their decisions pursuant to their margin of appreciation. In this connection, the Court reiterated its now familiar refrain:

Citing its seminal ruling in Animal Defenders International v. United Kingdom, the Court explained that in cases such as this one, which concern general measures, the quality of the judicial review of the necessity of the measure is particularly important. The more convincing the general justifications put forward in support of a measure, the less importance the Court will attach to its impact in a particular case.

Turning to the facts of the case at hand, the Court noted that the Turkish Constitutional Court had set out the criteria which prison authorities must consider when examining photocopied documents sent to prisoners in its ruling in Diyadin Akdemir. The Constitutional Court had stated that section 62 of Law no. 5275 referred specifically to ‘periodicals and non-periodicals’ and that photocopied documents were not covered by that section. It held that applying the same inspection criteria to photocopied documents as to periodicals and non-periodicals would impose an unreasonable burden on prison administrations and the domestic courts. In their written submissions, the Government had also pointed to the significant risk of intra-organisational communication, particularly on account of the large volume of incoming documents relating to prisoners convicted of terrorism-related crimes.

Although domestic law did not explicitly regulate the the receipt of photocopied or printed documents in prison, the Court found that the Constitutional Court had thoroughly assessed the matter in Diyadin Akdemir. It had balanced the rights of prisoners with the duties and workload of the prison authorities, as well as the serious risks associated with intra-organisational communication. The Court recognised the administrative burden reviewing photocopies and printouts would entail for prison staff as well as the differences between printouts/photocopies and officially printed periodicals and books which have been subject to pre-publication scrutiny.

It observed that there were various means for prisoners to obtain publication in line with domestic law and concluded that in the circumstances of the case, the applicants’ right to receive information and ideas was not disproportionately affected by his inability to access the printed materials sent to him by post. It fell within the State’s margin of appreciation to regulate the manner in which prisoners may obtain photocopied and printed documents to ensure the efficient functioning of prison services. The Court saw no reason to substitute its review for that of the Constitutional Court which it considered to have carried out a detailed and balanced review of the competing interests at play.

Commentary

In their joint dissenting opinion Judges Bårdsen, Seibert-Fohr, and Lavapuro convincingly argued that a violation of Article 10 should have been found and that the majority’s reasoning cannot be reconciled with the Court’s established case law. In doing so, the dissenting judges raised pertinent points concerning (a) the lawfulness of the measure and (b) the Court’s approach to determining the proportionality thereof. Both of these issues merit further observation.

(1) On the lawfulness of the measure: ‘the Convention does not stop at the prison gate.’

As is well-established in the Court’s case law, any interference with Article 10 must be prescribed by law, in pursuit of a legitimate aim and necessary in a democratic society in order to be compatible with the Convention.

While the majority simply accepted that the measure was lawful, noting that this had not been disputed by the applicant without dwelling any further on this aspect of the case, the dissenting judges questioned whether this was so. They pointed out that the relevant provisions of domestic law relied on by the government and cited by the majority, made no reference to photocopied/printed documents and nor did they empower prison authorities to withhold documents from prisoners solely based on their format.

As noted by the minority, the starting point of the domestic law as interpreted by the domestic authorities appears to be diametrically opposed to the starting point required by the Convention. While domestic law (as interpreted by the domestic courts) suggests that prisoners are only entitled to receive information to the extent expressly permitted by the legislation, the Court’s case law operates on the basis that any limitation on the right to receive information must be prescribed by law. This is no different when the case concerns the rights of prisoners. The fact that internet printouts and photocopies are not mentioned in domestic legislation should mean that they have a right to receive them rather than the opposite.

Reading the arguments raised by the dissenting judges raises the question of why this aspect of the case was not examined in greater detail by the majority. One apparent reason may be because the applicant did not explicitly complain about the lawfulness of the measure. However, when we look at the Court’s ruling in Günana and Others v. Turkey it becomes clear that this in itself did not preclude the Court from doing so. In Günana, despite the fact that the lawfulness of the interference was not contested by the applicants, the Court found that the seizure of handwritten documents by the prison authorities violated Article 10 as none of the legal provisions cited by the government and the prison administration as a basis for the contested measure provided for the seizure of a prisoner’s manuscripts under any circumstances.

Given the apparent ‘illegality’ of the measure (which was presumably raised by dissenting judges during the Chamber deliberations), it is not clear why the Court did not adopt the same approach in this case.

(2) On the necessity of the measure: deference on a procedural and a substantive level

The minority (rightly) recognised that the prisoners’ right to access information may be limited and that States have a margin of appreciation in this context. However, they highlighted the fact that the ban at issue contained no exceptions whatsoever: it applied to all prisoners, regardless of the crimes they committed; it applied to all internet printouts and photocopies, regardless of their content; and it made no distinction between photocopies from physical origins like books and magazines and printouts from online sources. Ultimately, the measure effectively ‘blocked prisoners’ access to any information available on the internet unless they were given access to the internet itself’ (para 8).

Even accepting that the measure had a lawful basis, the necessity and proportionality thereof can be contested. Firstly, there is a strong argument to be made that greater weight should have been accorded to the blanket nature of the ban. While it is true that it would impose a significant administrative burden on prison authorities were all prisoners to begin receiving 100s of pages of internet printouts every month, it is hard to see why it would be more challenging for them to review internet printouts containing diagrams of physiotherapy exercises than handwritten diagrams of the self-same exercises, which would presumably be permitted under the existing law. Similarly, it is difficult to see how a differentiated regime, applying only to prisoners deemed a particularly high security risk, would have been unworkable. Thus, it seems clear that a less restrictive measure could have been applied in this case, which would have enabled a better balance to be struck between prisoners’ rights, the legitimate aims pursued and the practical realities of the situation.

Secondly, with regard to the methodology employed by the Court, it is well established in the Court’s jurisprudence that general measures may be accepted as a feasible means of achieving a legitimate aim when a provision allowing for a case-by-case examination where the latter would give rise to significant uncertainty (Animal Defenders, para 108). On this basis, the Court has held that the more convincing the general justifications underlying the measure, the less importance the Court will attach to its impact in the particular case. Although the case law is somewhat unclear on this point (cf. Animal Defenders para 109 and Executief van de Moslims van België, para 117), the question is then not whether a less restrictive means could have been adopted, but whether the State acted within its margin of appreciation. Central to this, will be the quality of the domestic judicial and parliamentary review of the measure. This general approach has been regularly applied in the Court’s case law (see for instance, here, here, and here), and has been referred to as ‘procedural rationality review’ or the ‘general measures approach’ in the literature. It is a form of process-based review as the Court focuses on the quality of national decision-making in determining the proportionality of the interference.

Although the Court has tended to present its approach in cases concerning general measures as a uniform one, as noted by Popelier, numerous divergences can be identified in its approach undermining the consistency and coherence of its jurisprudence. This case contributes further to this confusion as the majority failed entirely to examine the quality of the parliamentary review of the measure — despite the fact that in at least one previous case concerning a general measure, precisely this aspect caused the Court to find an implicitly procedural violation of the Convention. In Tergek, the minority noted that there was little evidence to show that the legislative weighed up the competing rights and interests even if the law they referred to can be taken as a legal basis for the interference. Without access to the case file and the parliamentary debates it is difficult to determine if this was indeed the case, however, the fact that internet printouts and photocopies go unmentioned in the law itself is somewhat telling. I have argued elsewhere, that it is problematic to strike down a law merely because it was not surrounded by adequate parliamentary debate. However, the majority’s failure to examine this aspect of the case at all is surprising in light of the approach taken in other similar cases.

Despite its failure to consider the quality of the parliamentary review, the Court did examine the quality of the judicial review and endorsed domestic court’s reasoning in accepting the ban. However, as the dissenting judges pointed out it is ‘not at all clear’ from the Constitutional Court’s judgment in Diyadin Akdemir (which they cited as evidence that it had thoroughly assessed the matter), that it took the fact that prisoners have the right to receive information in any format as its starting point, nor that it addressed the broad scope of the ban and its potential impact on prisoners’ effective enjoyment of the right in question. Instead, the ban appears to have been justified based on practical reasons. As previously stated, these practical considerations are of course relevant and should not be disregarded. However, at some point they must be balanced against the rights enshrined in Article 10. But where and when was this done?

While a process-based approach may result in a true sharing of responsibility and an operationalisation of both the positive and negative dimension of subsidiarity where the substantive deference it entails is accompanied by a sufficiently exacting review of the domestic processes, in this case the Court’s review was deferential on both a procedural and a substantive level. This undermines the logic of its approach: rather than requiring domestic authorities to ‘step up’ and effectively review the case by themselves while promising to accept the decision they reach where they do so, the Court seems to be simply retreating from meaningful scrutiny altogether. It neither holds domestic authorities to account for the flaws in their reasoning, nor holds the State to account for its introduction of an intrusive general measure.

Conclusion

This judgment illustrates the challenges the Court faces in balancing its subsidiary role within the Convention system with its duty to safeguard Convention rights. While the majority’s approach aligns with recent trends towards a greater ‘sharing of responsibility’ and increased deference to States through process-based review, the dissenting opinion raises legitimate concerns about the adequacy of both the legal basis for the restriction and the proportionality review conducted. On a substantive level, there is a clear argument that the blanket ban at issue was disproportionate and that less restrictive means could have been employed to achieve the legitimate aims pursued. Moreover, even accepting that the adoption of such a measure fell within the State’s margin of appreciation and that a degree of deference was appropriate on a substantive level, the deferential approach adopted by the Court with regard to the quality of the domestic processes is striking. It undermines the logic of process-based review and runs counter to the dual nature of the subsidiarity principle.