APRIL 2023

EUROPEAN COURT OF HUMAN RIGHTS

HALLAÇOĞLU AND OTHERS v. TÜRKİYE ■ Applications nos. 6239/19 and 2 others

Uploading of prisoners’ correspondence onto the national server regulated by unpublished internal regulations to which prisoners did not have access: violation of Article 8.

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MASLÁK v. SLOVAKIA (No. 3) ■ Application no. 35673/18

Seizure of a prisoner’s letter addressed to another prisoner: violation of Article 8.

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Court of justice OF THE EUROPEAN UNION

E. D. L. ■ Case C‑699/21 ■ Request for a preliminary ruling (Italy)

A serious risk to the health of persons whose surrender is requested by a European Arrest Warrant (EAW) justifies the postponement of the surrender and obliges the executing authority, in order to rule out the risk at issue, to inquire about the circumstances under which the issuing authority will detain and try the requested persons.
In exceptional circumstances, if, in the light of the information provided by the issuing judicial authority and of any other information, that risk cannot be ruled out within a reasonable period of time, the executing judicial authority must refuse to execute the EAW.

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EUROPEAN COURT OF HUMAN RIGHTS

HALLAÇOĞLU AND OTHERS v. TÜRKİYE ■ Applications nos. 6239/19 and 2 others  ■ Second Section Committee ■ 4 April 2023

Art 8 ■ Recording and storage of prisoners’ private correspondence in the computer system of the National Judicial Network Server not provided for by law ■ Unpublished internal documents ■ Monitoring of correspondence of the prisoner with his lawyer ■ Lack of substantiation of the measure

Facts ■ The applicants complained that their right to respect for private life and correspondence was violated by the prison administration that recorded and stored their correspondence on the National Judicial Network Server (Ulusal Yargı Ağı Bilişim Sistemi – “UYAP”). One of the applicants alleged that his correspondence with an attorney was also monitored through the UYAP system. At the material time, the applicants were all detained in various prisons in Turkey following the attempted coup of 15 July 2016, for alleged membership of an organisation referred to by the Turkish authorities as FETÖ/PDY (“Fetullahist Terror Organisation/Parallel State Structure”), considered by the Turkish authorities to be a terrorist organisation. Some of them were subsequently released while others were still in detention at the time of consideration of their complaints. Throughout their detention period, the applicants addressed various judicial authorities with the requests to put an end to the practice of systematic monitoring and/or recording of their correspondence, both incoming and outgoing, on the UYAP system.

Law ■ Article 8

When reviewing both the admissibility and the merits of the case, the Court referred to the leading case Nuh Uzun and Others v. Türkiye (nos. 49341/18 and 13 others, 29 March 2022).

In particular, the Court recalled that in Nuh Uzun and Others it concluded that there had been a violation of Article 8 as he recording and retention on the UYAP system of the applicants’ correspondence, both sent and received, constituted an encroachment on their right to privacy and confidentiality, and could not be considered as having been carried out “in accordance with the law”. The Court saw no reason to depart from this conclusion.

As to the complaints regarding monitoring of correspondence with the lawyer of one of the applicants, the Government has referred to two circulars of the Ministry of Justice as being an additional legal basis for the recording of such correspondence. Nevertheless, the Court has taken note that the national authorities did not make any reference to those circulars while deciding on the contested measure. Specifically, the Court observed that the circulars did not include any guidance concerning the registration of inmates’ communication with their legal representatives on the UYAP system.

Conclusion ■ Violation of Article 8.

Article 41 ■ Finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage sustained by the applicants.

MASLÁK v. SLOVAKIA (No. 3)  ■ Application no. 35673/18 ■ First Section Committee ■ 27 April 2023

Article 8 ■ Seizure of a letter of a prisoner addressed to another prisoner ■ Allegedly defamatory content as a ground for seizure ■ Lack of analysis by the courts of the content of the letter ■ Lack of “relevant and sufficient reasons” for the interference ■ Seizure not necessary in a democratic society

Facts ■ The applicant complained of the seizure of his letter addressed to another prisoner under the pretext that it contains defamatory statements. This letter was addressed to a person serving their sentence in another prison and contained the following: “… I am fulfilling my civic duty and even if I live in fear that some silly guys full of complexes will come to beat me up too, I will not be intimidated …”

The prison authorities confiscated the letter pursuant to the national legislation, according to which they are allowed to seize the correspondence that contains defamatory information. The domestic prosecutors and judicial bodies, including the Constitutional Court, upheld the decision of prison authorities and agreed that the statement “some silly guys full of complexes” is of defamatory nature.

Law ■ Article 8

The Court started its analysis by acknowledging that there had indeed been interference with the right to respect for the applicant’s correspondence. The Court did not doubt that the measures pursued legitimate aims, namely, the protection of the rights of others and the prevention of crime listed in Article 8(2). The lawfulness was also substantiated by the provisions of the national law. The Court affirmed that achieving complete certainty in framing laws is an unattainable goal, and any attempt to do so may lead to an overly rigid outcome. While the Court agrees that the phrasing of the national law was reasonably predictable in its implementation, it decided to look into whether the authorities followed the principle of proportionality when applying the law to the applicant’s circumstances.


In this regard the Court has noted that control over the correspondence of prisoners is not in itself incompatible with the standards of the ECHR. In the present case, the formulation “some silly guys full of complexes” was probably referring to the prison staff. This statement is rather insulting than defamatory, it is not particularly strong and is being addressed to another person in private correspondence. However, the authorities in their numerous decisions have not conducted sufficiently thorough analysis of the content of the letter and failed to explain why the above passage should be considered “defamatory”. Therefore, the domestic authorities did not provide satisfactory and pertinent justification for the intervention. Consequently, seizing the applicant’s correspondence was not “necessary in a democratic society”.

Conclusion ■ Violation of Article 8

Article 41 ■ EUR 2,600 in respect of non‑pecuniary damage; EUR 968 in respect of costs and expenses.

court of justice of the European union

E. D. L. ■ Case C‑699/21 ■ Grand Chamber ■ 18 April 2023

Reference for a preliminary ruling ■ Judicial cooperation in criminal matters ■ European arrest warrant ■ Framework Decision 2002/584/JHA ■ Surrender of sentenced or suspected persons to the issuing judicial authorities ■ Obligation to respect fundamental rights and fundamental legal principles ■ Prohibition of inhuman or degrading treatment ■ Risk of serious harm to health ■ Circumstances that may justify a postponement of surrender or a refusal to execute the arrest warrant ■ Duty of sincere cooperation ■ Obligations of the executing judicial authority, including an obligation to enter into dialogue with the issuing judicial authority

Facts ■ In September 2019, the Zadar Municipal Court (Croatia) issued a European arrest warrant (EAW) in the framework of a criminal procedure initiated against E.D.L. The request person resided in Italy at the time of the EAW issuance. A psychiatrist’s report ordered by the Milan Court of Appeal (Italy) revealed that he was suffering from a psychotic disorder requiring treatment that made him unsuitable for prison life. The Court of Appeal accordingly held that the execution of the EAW would interrupt E.D.L.’s treatment and lead to a deterioration in his general state of health, or even to an increased risk of suicide. Since the Italian law transposing Framework Decision 2002/584 on the EAW did not contain any provision to the effect that the surrender of a requested person can be refused for such health reasons, the Court of Appeal referred the case to the Italian Constitutional Court, which, in turn, decided to make a reference to the CJEU on how to interpret the Framework Decision in such a situation.

Law ■ Article 23(4) of Framework Decision 2002/584, Article 4(3) TEU, Article 4 CFR

The Court first reiterated that the principle of mutual recognition constitutes the ‘cornerstone’ of judicial cooperation in criminal matters. Accordingly, executing judicial authorities may refuse to execute a EAW only on the grounds listed in the corresponding Framework Decision as interpreted by the Court (see Puig Gordi and Others, C-158/21, 31 January 2023, §§ 69-73), and refusal should be interpreted strictly as an exception (see Openbaar Ministerie, C-562/21 PPU and C 563/21 PPU, 22 February 2022, § 44). The Court also declared that it stems from the principle of mutual trust that “there is a presumption that the care and treatment provided in the Member States” is adequate, including in a prison setting (§ 35).

However, “it cannot be ruled out that the surrender of a person who is seriously ill may cause that person to be exposed to a real risk of inhuman or degrading treatment within the meaning of Article 4 [CFR], either as a result of or, in certain circumstances, regardless of the level of quality of the care available in the issuing Member State” (§ 39). As a result, when there are “serious reasons for believing, on the basis of objective material, such as medical certificates or expert reports, that the execution of the arrest warrant manifestly risks endangering the health of that person, for example because of a temporary illness or condition of that person existing before the date on which he or she is to be surrendered” (§ 35), the executing judicial authority is authorised postpone temporarily the surrender of the requested person.

Such considerations cover situations were “the surrender of the requested person, who is seriously ill, would expose him or her to a real risk of a significant reduction in his or her life expectancy or of a rapid, significant and irreversible deterioration in his or her state of health” (§ 42, see also Staatssecretaris van Justitie en Veiligheid, C-69/21, 22 November 2022, §§ 63-66).

Therefore, in case such risk exists, the executing judicial authority must suspend the surrender in accordance with Article 23(4) of Framework Decision 2002/584, read in conjunction with Article 4 CFR.
At the same time, “it must ask the issuing judicial authority to provide it with all the information necessary to ensure that the manner in which the criminal proceedings on which the EAW is based will be conducted or the conditions of any detention of that person make it possible to rule out the risk” mentioned (§ 47).

If appropriate safeguards are provided by the issuing authority, the EAW must be executed. The Court stressed that “that the chronic and potentially long-lasting nature of the exceptionally serious illness suffered by the requested person does not […] preclude the executing judicial authority […] from obtaining assurances from the issuing Member State to the effect that that illness will be subject, in that Member State, to appropriate treatment or care, whether in prison or otherwise in a manner which keeps that person available to the judicial authorities of that Member State” (§ 49). If the information provided by the issuing authority, or any other information, suggest that there is a risk that the requested person will be subject to inhuman or degrading treatment, and that that risk “cannot be ruled out within a reasonable period of time” (§ 50), the executing authority “must refuse to execute” the EAW (§ 55). The Court indeed recalled that the postponement of the surrender shall be temporary: it would therefore be contrary to the Framework Decision “for an executing judicial authority to be able to defer the surrender of a requested person for a considerable or even indefinite period of time in order to avoid such a risk materialising (§ 51).

Conclusion ■ In cases where there are reasonable grounds to believe that the surrender of a person requested under a EAW would significantly reduce his or her life expectancy or cause irreversible deterioration in his or her health, the executing authority must postpone the surrender and request information from the issuing authority on how the requested person will be tried or detained. If the risk to the person’s health cannot be eliminated within a reasonable time frame, the executing authority must refuse to execute the EAW.

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