Prison Letters and the Right to Communication: Inspection, Withholding and Objection

The sending and receiving of letters by a person in prison is a right recognized by law. Inspection carried out for security purposes does not permit any content to be blocked without reasons. Which part of a letter is found objectionable and why, whether withholding the whole of it is necessary, and the possibility of applying against the decision must be assessed together.

A delay in communication and a withholding decision issued about a letter are different problems. In one, the question is whether the item reached the institution and how the distribution process went; in the other, the legal basis of the interference is examined. In addition, a family letter, an application sent to an official authority and a document sent to an attorney for the purpose of defense are not subject to the same inspection regime. These distinctions are the foundation of file preparation that prevents loss of rights.

The scope of the right to letters in prison

Article 68 of Law No. 5275 regulates a convicted prisoner’s right to receive letters, faxes and telegrams and to send them on condition of bearing the cost. In institutions with the necessary technical infrastructure, using electronic methods under the procedures and principles set by the Ministry is also possible. This provision does not mean unlimited access to a personal e-mail account in every institution. [1]

Article 22 of the Constitution protects freedom and confidentiality of communication. Being held in a penal institution does not remove this protection. The balance to be struck between institutional security and the continuation of communication requires an examination of the content and the concrete circumstances. In correspondence affecting family ties, the right to respect for private and family life may also be part of the assessment.

What distinction should be made for pretrial detainees?

Besides the application of the relevant provisions of the law to pretrial detainees, there may be special decisions issued because of a continuing criminal investigation or prosecution. For this reason, the application should not merely say that the letter was not delivered; it should be investigated whether the action rests on an institution board decision or on a judicial restriction. The route of application is determined according to the source of the decision.

Postage and electronic communication

Bearing the cost of sending and inspecting the content are different stages. Insufficient funds in the account, a wrong address, a returned item or a technical system problem should not be treated as a content ban. Separating the record concerning the cost of sending from the withholding decision helps explain the dispute correctly.

In institutions where the electronic method can be used, the recipient, delivery and access records also matter. In particular, the time of sending an application to an official authority may be decisive for a legal-remedy time limit. The article on petitions and access to court explains separately the function of these records.

What criteria apply in inspecting letters?

The law provides for restrictions on messages that endanger the order and security of the institution; single out staff as targets; give rise to organizational communication; contain false and misleading information likely to cause panic; or contain threats and insults. However, writing a statutory phrase into the decision is not sufficient by itself. The link between the specific passage in the message and the risk alleged must be explained. [1]

Are criticism and a security risk the same thing?

A statement criticizing institutional practices cannot be considered objectionable automatically merely because it is critical. The expressions used, the context, the addressee and the risk alleged to arise are assessed together. On the other hand, the right to communication gives no protection for threats or for instructions aimed at committing an offense. A firm conclusion should not be reached from a few words without seeing the whole text.

In the application, it may be requested that the disputed sentence be assessed together with what comes before and after it. The purpose of informing the family, seeking legal help or questioning the accuracy of an event should be explained concretely. Relying abstractly on freedom of expression does not take the place of a reasoned objection to the content.

Can the whole letter be withheld?

Full withholding has consequences for communication as a whole. If the part considered objectionable can be separated, it should be assessed why delivering the remaining part would not be sufficient. Partial delivery need not be possible in every case; but it should be understandable why a more limited measure was inadequate. This distinction is particularly important where ordinary family information and an expression regarded as objectionable are in the same letter.

The Ahmet Temiz decision and making the reasoning concrete

In its Constitutional Court, Ahmet Temiz, Application No. 2013/1822, May 20, 2015 decision, the Court examined a complaint about the withholding and destruction of a letter sent from another penal institution. The decision found that it had not been sufficiently explained why the content needed to be blocked for security reasons, and that the serious interference was not supported by concrete grounds. It held that freedom of communication had been violated. [2]

The decision’s contribution to practice

The decision does not say that every kind of letter must be delivered without inspection. It requires that the interference be shown, with concrete facts, to be necessary and proportionate. The content of the letter, the context of the event and the severity of the chosen measure are assessed together. Because withholding and destruction do not have the same consequences, preserving the document and being able to examine it on judicial review also become important.

Merely listing this decision by name and number in a petition is not enough. It must be explained which deficiency in the concrete file resembles the principle in the decision. For example, a failure to show which expressions were objectionable, a failure to consider partial delivery, or an objection authority that did not answer a decisive defense point may each be a separate ground of application.

Conclusions that cannot be drawn from the decision

The historical amount of compensation awarded by the AYM is not a payment tariff for all of today’s files. The violation decision was rendered on the applicant’s circumstances and the characteristics of the interference. In a new application, the damage, the time, the existing means of redress and the admissibility conditions are assessed separately. The earlier decision does not remove the burden of documenting the event.

Correspondence sent to official authorities and to attorneys

Article 68/4 of Law No. 5275 provides that letters, faxes and telegrams sent by a convicted prisoner to official authorities or to his or her attorney for defense purposes are not subject to inspection. It envisages that these messages be delivered by post or electronically, on request, with measures that prevent access by anyone other than the recipient. [1]

Identifying the recipient and the defense purpose

The recipient authority or attorney should be clearly shown on the envelope and on the application. A dispute may arise between a document sent for defense purposes and any personal correspondence sent to a person who is said to be an attorney. Which file the document relates to and what legal need it serves should be shown without unnecessarily revealing confidential matters.

This provision does not by itself remove the special rules in the whole field of communication with an attorney. Meetings, the exchange of documents and exceptional judicial measures are assessed separately. The explanations on meetings with an attorney and confidentiality show the boundary between family correspondence and defense communication.

If a petition to be sent to a court is delayed

The date of the application, the date of delivery to the institution and the date of dispatch should be recorded separately. A petition delivered by the person within the time limit but sent later is not the same as one delivered late from the start. The effect on the time limit is assessed according to the type of application; a single delivery rule should not be assumed for all applications.

A copy of the application, the list of enclosures and the delivery record should be kept. If an enclosure was not sent, its name, number of pages, which allegation it supports and why it could not be obtained may be explained. Asking the court to call for the institution’s records or the document replaces an unsupported allegation with a concrete request for investigation.

If the letter is not delivered, which records are requested?

First, it should be established from postal tracking whether the item reached the institution. Reaching the institution may not be the same date as delivery to the convicted prisoner. The inspection process, a wrong ward or institution detail, a transfer, a return and withholding should be distinguished from one another. It is not accurate for a relative who has no information about the contents of the item to characterize every delay after it reaches the institution as a definite censorship decision.

How is the chain of records built?

If the letter is not in hand, it may be requested that the withholding decision and a copy of the letter be brought to the file. The applicant should not make statements by guessing the content he or she cannot see. It should be stated clearly that the decision in hand is not sufficient and how being unable to access the text affects the defense.

How is personal data protected?

Letters may contain health, address and family information belonging to third parties. The part necessary for the judicial application should be submitted; irrelevant personal information should not be shared publicly. Submitting a document to a court and publishing it on social media are not the same act. If the full text is needed for the examination, a request for protection of confidentiality can be made separately.

Complaint and objection against a withholding decision

In complaints within the scope of Law No. 4675, fifteen days from learning and in any case thirty days from the date of the action are taken into account. The current general time limit for objecting to an enforcement judgeship decision is two weeks from notification. The subject of the application, the date of the letter, its sender or recipient and the number of the withholding decision should be stated. [3]

What legal connection should be made in the petition?

The chronology of events should be given first; then the disputed content and the reasoning of the decision should be compared. Concrete points such as the failure to specify the objectionable passage, the failure to explain why family information was blocked, or the failure to consider a more limited measure can be addressed in separate paragraphs. The request can be framed as lifting the decision and delivering or sending the message; where necessary, partial delivery can be put forward as an alternative.

A complaint does not stop the action by itself. If a consequence that is hard to reverse, such as destruction of the document, is alleged, the conditions for a stay or postponement should be made concrete. The application should not be left as a purely theoretical discussion of unlawfulness; it should show which action will be carried out when and what document is sought to be protected.

When can one go to the Constitutional Court?

The exhaustion of ordinary and effective remedies, the time limit and the other admissibility conditions should be examined. An individual application is not an ordinary objection that can be used directly against the institution’s initial inspection of a letter. It is important that the constitutional claim was in substance raised in the earlier applications and that the relevant documents were submitted. [4]

Deficiencies that may lead to rejection of the application

Merely stating that the letter did not arrive

In an application made without the tracking number, date and recipient details, it may remain unclear which message is to be investigated. If there are several letters, each should be listed on a separate line. If the applicant cannot obtain all the records, he or she should submit the minimum information at hand and explain which record he or she asks to be requested from the institution. Uncertainty does not show that the event did not occur; but it makes the direction and scope of the examination harder.

Applying an old decision to a current event without explanation

The event in the Ahmet Temiz decision and the content in a new file may not be the same. One letter informing the family, another containing a threat and a third message being a defense document require different assessments. The importance of a precedent lies in its principles of concrete reasoning and proportionality. It should be shown why these principles have been violated in the new file.

Requesting only delivery in the face of a possibility of destruction

If there is a current risk concerning the preservation of the document, it may be requested that the letter be kept in safekeeping until the judicial examination is completed. The source of the risk, which part of the decision it relies on and why it could not be remedied should be explained. Instead of a vague request for protection of all documents, it is more functional to prepare the application around a message with a specific date and number.

Where the correspondence is directed to a relative abroad or to a consulate, different procedural problems may also arise. The article on communication rights of foreign detainees and convicted prisoners addresses the points where a consular notification is distinguished from a family letter. A delay of an international item in transit and the institution’s withholding action should again be investigated separately.

Conclusion

In protecting the right to letters, the strongest file is the one that sets out together the fate of the item and the reasons for the interference. Content inspection must be concrete and proportionate; the special safeguards for official applications and defense correspondence must be protected. The lawfulness of a withholding decision is examined by assessing the letter as a whole and the possibility of a more limited interference.

Frequently Asked Questions

Is every letter sent to a prison read?

The inspection rules in the legislation apply to ordinary correspondence. There is a special safeguard for correspondence sent to official authorities or to an attorney for defense; not all communications are treated as the same.

Is it prohibited to criticize the prison in a letter?

Criticism alone is not an automatic ground for withholding. The context of the expressions and their concrete link with the statutory grounds for restriction must be assessed.

If one sentence is objectionable, can the whole letter be held?

The proportionality of the measure and whether partial delivery would be sufficient are examined. It must be explained why full withholding is necessary.

What if the post shows delivery but the letter was not handed over?

The institution’s entry, inspection and distribution records, and the withholding decision if there is one, should be requested. Delivery by post and delivery to the person are different stages.

Can I object when I do not have a copy of the letter?

By submitting the decision and information in hand, it may be requested that the letter be obtained from the institution. How being unable to access the content affects the objection should be explained.

Sources

1. Law No. 5275, Arts. 68, 114 and 116. The amendment by Law No. 7328 on electronic correspondence has been taken into account.
2. AYM, Ahmet Temiz, Application No. 2013/1822, May 20, 2015, especially the reasoning and the proportionality assessment.
3. Law No. 4675 on the Enforcement Judgeship, Arts. 5 and 6.
4. Constitutional Court, individual application information.