The fact that a protest carried out in a penal institution (ceza infaz kurumu) is a form of expressing opinion does not place the disciplinary penalty to be imposed outside constitutional review. At the same time, not every restriction relating to freedom of expression or to institutional security and order is unlawful in itself. The nature of the act, the statutory disciplinary provision, its concrete effects, the opportunity to make a defense and the severity of the penalty must be examined together.
The decisions of the Constitutional Court (Anayasa Mahkemesi, AYM) in Kahraman Güvenç (3) and Kahraman Güvenç (4) assess this balance through penalties imposed for hunger strikes. In both decisions the conclusion on freedom of expression is that no violation was found; however, one of them contains a dissenting opinion. Separating the reasoning of the decisions from the criticism in the dissent is a precondition for using this case law correctly.
Freedom of Expression Continues to Apply in Prison
Being Convicted or Detained Does Not End Entitlement to Rights
Being in prison does not mean that a person gives up all of their constitutional rights. Although restrictions arising from the nature of enforcement exist, each restriction requires a legal assessment. The AYM accepts that some protests and hunger strikes may be a method of expressing opinion. That acceptance does not mean that every concrete act will go unsanctioned. The right of convicted persons to access publications is also examined separately in the article freedom of expression in prison and access to publications.
The AYM's direct statement reads:
“In this context, the freedom of expression of convicted persons and detainees is also under protection within the scope of the Constitution.”
Source of the quotation: Kahraman Güvenç (3), Application No. 2013/3551, April 14, 2016, § 32. The sentence is taken from the Turkish full decision text; the English rendering above is a translation.
Institutional security, the rights of other persons and the protection of health may be legitimate aims. However, the fact that an aim is legitimate does not show that every sanction applied is necessary and proportionate. Under Articles 13 and 26 of the Constitution, a separate examination of legality, concrete need and proportionality must be carried out.
The Actual Conduct, Not the Label of Protest, Must Be Determined
Refusing food, shouting slogans, submitting a joint petition and insulting staff are different acts. Even if all of them are called protest, they cannot be assessed under the same disciplinary provision. It must be clearly established which conduct was carried out, by whom, when and in what manner.
For hunger strikes, there is also a distinction between Article 40/2-g of Law No. 5275 on the Execution of Sentences and Security Measures and other disciplinary provisions concerning the educational or propaganda activities of organizations. If the administration applies a different provision, it must explain the additional conduct and facts that make up the elements of that provision. The legal characterization of the act directly affects the type and severity of the penalty. The State's duty of protection with regard to the right to life is described in the article on the right to life.
Facts and Rulings in the Kahraman Güvenç Decisions
A One-Month Activity Restriction in the Third Kahraman Güvenç Application
In the Kahraman Güvenç (3) application, the convicted person began an indefinite hunger strike to draw attention to the lack of an adequate response to his grievances concerning his prison treatment and requests. The institution imposed a penalty barring him from cultural and sports activities for one month. The enforcement judgeship and the objection authority rejected the applications.
The AYM majority took into account, together, the assessment of institutional order and security, the measures carried out upon the applicant's complaints and the scope of the sanction. It stated that the penalty did not remove all communication and contact opportunities and was limited to certain activities. It concluded that freedom of expression had not been violated. See §§ 48–52.
Summary of the AYM ruling: By majority vote, the decision found no violation under Article 26 of the Constitution. Engin Yıldırım and Alparslan Altan dissented. The acceptance of the request for legal aid and the exemption from litigation costs do not mean that a violation finding was made regarding freedom of expression.
Citation correction: The date the source book gives for this decision differs from the date of the full decision. The correct date of the full decision text is April 14, 2016. June 23, 2020 is the date of the Kahraman Güvenç (4) decision. The two decisions should not be presented as decisions of the same date or with the same application number.
The Dissent Criticized the Lack of Concrete Reasoning
The dissenting opinions criticize the fact that it was not sufficiently shown how one person's protest about their own conditions affected the order of the institution, and that the administrative authorities' reasoning was insufficient for the concrete case. In particular, the reaching of a conclusion through general assumptions rather than reasoning specific to the applicant is discussed.
Legal status of the dissent: These statements are not the majority's ruling. They provide an assessment that can be used in a defense; however, it is incorrect to present them as if the AYM found a violation in this application. If a dissent is to be relied on, the name of its author and the fact that it is a dissenting opinion must be clearly stated.
Duration and Institutional Impact in the Fourth Kahraman Güvenç Application
In Kahraman Güvenç (4), Application No. 2016/15659, June 23, 2020, the applicant carried out a prolonged action concerning requests for clarification of the death of his brother. The AYM accepted that the claim was legitimate. However, it assessed the duration of the action, the form it took, the conditions of the high-security institution and the extraordinary measures considered necessary in the fields of health and security.
Summary of the AYM ruling: On the question of freedom of expression, it was unanimously decided that there was no violation with regard to the penalty of barring participation in certain activities for two months. The right-to-life claim in the same application was rejected as a repeated application, because it had already been examined earlier. The procedural outcome of the right-to-life complaint is not the outcome of the substantive examination of the disciplinary penalty.
Which Documents Matter in Reviewing a Disciplinary Penalty
The Act Must Be Matched Correctly with the Statutory Provision
Article 37 of Law No. 5275 on the Execution of Sentences and Security Measures sets out the framework for protecting regular life, security and discipline in the institution. Article 40 of the same Law regulates the penalty of barring participation in certain activities and the acts that require it. For hunger strikes, the special provision and the general disciplinary framework must be examined together.
The file must show which incident corresponds to which article. If the act has been wrongly classified, a general objection that the penalty is severe is not enough; it must be explained which element of the applied article is not present. Attributing to the applicant conduct that was not theirs, or leaving the date of the act uncertain, are also separate grounds for objection.
The Security Justification Must Be Assessed on the Concrete Facts
The administration may put forward concrete data concerning the duration of the action, the participation of other persons, the functioning of the institution, or health and security measures. The application must discuss this data. A claim that the action was brief, limited to one person or had no other effect must be supported by incident records.
No fixed rule can be set that in every file an actual injury must have occurred. On the other hand, the mere use of the general word "security" is not enough as an explanation. The relationship between the foreseen risk and the sanction applied to the person is examined. A reasoning that the AYM accepted in an earlier file does not by itself justify the practice of another institution at another time.
Hearing the Defense and a Reasoned Decision Are Procedural Safeguards
In a disciplinary investigation, the allegation must be communicated in an understandable way, the person must be given an opportunity to make a defense, and the decision must be reasoned. In the review, the incident report, the request for a defense, the defense statement, health and observation records, any footage and the notification documents must be considered together. Objection routes and time limits for disciplinary penalties are discussed separately in the article on complaints and objections to disciplinary penalties in prison.
Health records are important here not to produce a treatment recommendation, but to assess how the effects of the action and the reasons put forward by the administration are documented in the file. A measure concerning health protection and a disciplinary sanction may have different purposes and conditions; the existence of one does not automatically confirm the other. Allegations of ill-treatment are assessed separately under the criteria in the article on the prohibition of torture and ill-treatment.
Complaint to the Enforcement Judgeship and Subsequent Remedies
Complaint and Objection Time Limits Differ
Under the general framework of Article 5 of Law No. 4675 on Enforcement Judgeships, a complaint may be made to the enforcement judgeship (infaz hâkimliği) within fifteen days from learning of the act and, in any event, within thirty days from the date it was carried out. The date of notification is one of the key records showing when the act was learned of. Which date is the starting point must be determined from the act and notification documents.
For decisions of the enforcement judgeship given on or after June 1, 2024, an objection may be made to the High Criminal Court (Ağır Ceza Mahkemesi) within two weeks from notification. The one-week period in older sources should not be used as the current general period. After ordinary remedies, an individual application to the AYM generally has a period of thirty days from learning of the final decision. For the general operation of enforcement judgeship applications, see the article on applications and objections to the enforcement judgeship.
| Stage | General time limit | Focus of the request |
|---|---|---|
| Complaint to the enforcement judgeship | 15 days from learning of the act and, in any event, 30 days from the act | Annulment of the decision or act; deferral or suspension where the conditions are met |
| Objection to the enforcement judgeship's decision | Under the current regime, two weeks from notification | Correction of legal and factual errors in the judgeship's decision |
| Individual application to the AYM | After effective ordinary remedies, generally 30 days from learning of the decision | Examination of the concrete constitutional violation and of appropriate redress |
A Request for Suspension and the Main Complaint Are Not the Same Request
A complaint does not, as a general rule, automatically suspend the act or activity complained of. Within the framework of Law No. 4675, a request for deferral or suspension may be assessed only if the conditions are specified: consequences that are difficult or impossible to remedy, together with clear unlawfulness. The special provisions of Law No. 5275 on the finality and enforcement of a disciplinary penalty must also be taken into account separately.
If the application seeks only the annulment of the penalty and does not explain the continuing effects, this may be a deficiency. On the other hand, it cannot be assumed that every sanction removes all visiting or communication rights. The type and duration of the penalty and its effect on other enforcement decisions must be shown from the file.
Author's assessment: The strong legal objection in this field is not limited to saying that the protest pursued a justified aim. The correct legal characterization of the act, the concrete demonstration of its effect on the institution, the procedural safeguards and the severity of the sanction must be discussed together. The different approaches of the majority and the dissent, particularly on the concreteness of the reasoning, call for careful file review.
Conclusion
Disciplinary review of protests in prison requires assessment, on the concrete facts, of freedom of expression alongside the security and order needs of the institution. The Kahraman Güvenç decisions are not general provisions that make the imposition of a penalty mandatory for every protest. The application number, date, sanction, voting position and the distinction between the majority and the dissent should be preserved when using them. For measures connected with expression of opinion, the article on judicial control and freedom of expression and the article on qualified rights in Constitutional Court decisions may also be consulted.
Frequently Asked Questions
Can a hunger strike be examined within the scope of freedom of expression?
Yes. The AYM may evaluate it as a method of expressing opinion. However, this characterization does not make every restriction unlawful.
What is the correct date of the third Kahraman Güvenç decision?
The decision on Application No. 2013/3551 is dated April 14, 2016. The decision dated June 23, 2020 is the fourth application, No. 2016/15659.
Does the existence of a dissenting opinion mean the penalty was annulled?
No. The outcome is determined by the majority's ruling. A dissenting opinion shows a different legal approach.
Is the objection period to an enforcement judgeship decision one week?
For decisions given on or after June 1, 2024, the current period is two weeks from notification. The period for the first complaint is different.
Are a disciplinary penalty and a health-related measure the same procedure?
No. Their purposes and legal conditions may differ. Each procedure must be examined on its own basis and effect.
Sources and legal bases
- Constitutional Court (AYM), Kahraman Güvenç (3), Application No. 2013/3551, April 14, 2016, in particular §§ 25–38, 48–52, the operative part and the dissenting opinions. Official decision record · Full text access.
- Constitutional Court (AYM), Kahraman Güvenç (4), Application No. 2016/15659, June 23, 2020, in particular §§ 35–41 and the operative part. Official decision record · Full text access.
- Constitutional Court (AYM), Qualified Rights Decision Summaries (Nitelikli Haklar Karar Özetleri), June 2025, printed pp. 19–22. The date of the third application was corrected on the basis of the full decision.
- Text of Law No. 5275 on the Execution of Sentences and Security Measures, Articles 37, 40, 47, 48 and 52; Law No. 4675 on Enforcement Judgeships, Articles 5–6.
- Directorate General of Prisons and Detention Houses (Ceza ve Tevkifevleri Genel Müdürlüğü, CTE), Sesleniş, June 2024, statements on disciplinary investigation, complaints and the two-week objection period. Law No. 6216 on the Establishment and Trial Procedures of the Constitutional Court, Articles 45, 47 and 50.