CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 24 octobre 2006

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margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s453B1FB7 { width:53.61pt; display:inline-block } .s7E362E6E { width:209.32pt; display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block }     SECOND SECTION     CASE OF TANER KILIÇ v. TURKEY     (Application no. 70845/01)     JUDGMENT       STRASBOURG   24 October 2006       FINAL     12/02/2007       This judgment will become final in the circumstances set out in Article   44 §   2 of the Convention. It may be subject to editorial revision. In the case of Taner Kılıç v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Mr   J.-P. Costa, President,   Mr   I. Cabral Barreto,   Mr   R. Türmen,   Mr   M. Ugrekhelidze,   Mrs   A. Mularoni,   Mrs   E. Fura-Sandström,   Mr   D. Popović, judges, and Mrs S. Dollé , Section Registrar , Having deliberated in private on 3 October 2006, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 70845/01) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Taner Kılıç (“the applicant”), on 5 January 2001. 2.     The applicant was represented by Mr O.K. Cengiz, a lawyer practising in İzmir. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court. 3.     On 4 December 2003 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the search carried out at the applicant’s home and office, the confiscation of videotapes during the search and a lack of legal remedies in this respect, to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 4.     The applicant was born in 1969 and lives in İzmir. 5.     He is a lawyer and a board member of the İzmir branch of the Human Rights Association for Oppressed People (Mazlumder). 6.     On 16 June 1999 the Public Prosecutor at the Ankara State Security Court requested the court to issue a warrant authorising the search of the headquarters and branches of the Mazlumder, in order to collect evidence concerning certain acts of the association, allegedly carried out against the “integrity of the country and the secular regime”. On the same day the court issued the search warrant which provided as follows: “...In accordance with Article 13 of the Code on the Establishment and Procedures of State Security Courts and Articles 86, 94, 95, 96, 97 and 98 of the Code on Criminal Procedure and in line with the request of the Public Prosecutor, it has been decided to carry out a search of the headquarters and all branches of the Mazlumder, during day time and on one occasion only, for the purpose of collecting evidence.” 7.     On 18 June 1999 the Public Prosecutor at the Ankara State Security Court communicated the court decision to the Ministry of the Interior for execution. On the same day, the Public Prosecutor sent an additional letter which read as follows: “Pursuant to Article 86, and the following articles of the Code of Criminal Procedure, and considering that this is a situation where delay would be prejudicial, the Public Prosecutor’s office has also decided to carry out a search of the homes and offices of the General Director and board members of the association.” 8.     On the same day the Under-Secretary of State of the Ministry of the Interior sent a letter to the governors of 80 provinces, which read as follows: “Pursuant to the Ankara State Security Court’s decision of 16 June 1999 and the Public Prosecutor’s decision of 18 June 1999, in accordance with Article 86 and the following articles of the Code of Criminal Procedure, and in the light of all the information and evidence establishing that the Mazlumder is acting against the integrity of the country and the secular regime, it is requested that a search be carried out of its headquarters and branches, as well as the homes and offices of the General Director and board members, which includes the homes and offices of the board members of the branches.” 9.     On 19 June 1999 police officers carried out a simultaneous search of all the premises mentioned in the letter of the Under-Secretary of State, including the applicant’s home and law office. 10.     During the search of his home, the police officers showed the applicant the letter of the Under-Secretary of State. They confiscated two videotapes found in his home and photocopied various documents taken from his office. Following the search of his home, the applicant and his wife signed a search report drafted by the police. 11.     On 23 November 1999 the applicant filed a petition with Principal Public Prosecutor at the Court of Cassation, alleging an abuse of power by the Public Prosecutor at the Ankara State Security Court, the Under-Secretary of State of the Ministry of the Interior and the police officers who carried out the search. 12.     On 7 February 2000 the Principal Public Prosecutor held that there was no need to act on the petition charging the Under-Secretary of State with an abuse of power, as he had merely assisted the judicial authorities, acting within the powers conferred on him by law. 13.     On 28 February 2000 the applicant objected to the decision of the Principal Public Prosecutor. He complained that, by extending the search warrant issued by the State Security Court, the Public Prosecutor had exceeded his authority and the Under-Secretary of State had interpreted the Public Prosecutor’s instructions too broadly to include even the residences of all the branch board members. 14.     On 20 April 2000 the Investigation Board of the Ministry of the Interior issued a non-prosecution decision in respect of the Under-Secretary of State. The Investigation Board maintained in its decision that the search warrant issued by the Ankara State Security Court and the instruction of the Public Prosecutor needed to be interpreted as a whole. It therefore concluded that the search had been in accordance with the decision taken by the prosecution, and it dismissed the applicant’s objection. On 2 June 2000 the applicant appealed against this decision to the Supreme Administrative Court. 15.     On 12 June 2000 the applicant filed a petition with the Public Prosecutor at the Ankara State Security Court, requesting the return of his videotapes, seized during the search of his home. 16.     On 30 June 2000 the Directorate of Criminal Affairs attached to the Ministry of Justice dismissed the applicant’s request to initiate criminal proceedings against the Public Prosecutor at the Ankara State Security Court, without giving any reasons. 17.     On 19 September 2000 the Supreme Administrative Court dismissed the applicant’s objection against the Investigation Board’s decision, maintaining that it had been in accordance with the law. 18.     On 4 March 2003 the Public Prosecutor at the Ankara State Security Court gave a decision of non-prosecution in respect of the General Secretary of the Association. In his decision, the Public Prosecutor stated that the materials seized during the search did not reveal any criminal intention or activity. However, he concluded that the materials seized should be considered as evidence and that they should therefore be retained. 19.     In May 2004 all the items confiscated during the search of   19   June   1999 were returned to the headquarters of Mazlumder. The applicant subsequently retrieved his video cassettes. II.     RELEVANT DOMESTIC LAW 20.     The Court refers below to the pertinent domestic law, concerning search and seizure, in force at the time of the incident: A.     The Constitution 21.     Articles 20 and 21 of the Constitution (prior to the amendments of 17 October 2001) guaranteed the right to respect for privacy and family life. Article 20 provided that the person, private papers or belongings of an individual could not be searched or seized unless there was a decision of a judge on one or several of the grounds of national security, or unless there existed a written order of an agency authorised by law in cases where delay would have been prejudicial. Article 21 provided that no domicile could be entered or searched or the property therein seized, unless there existed a decision of a judge, or unless there existed a written order of an agency authorised by law in cases where delay would have been prejudicial. B.     The Code of Criminal Procedure and the Criminal Code 22.     Articles 90 to 103 of the Code of Criminal Procedure (prior to the amendments of 4 December 2004) set out the general terms which governed search and seizure. In particular, Articles 90 and 97 provided that the authority to order searches and seizures lay with the judge. However, it also empowered Public Prosecutors and the police to conduct searches and seizures where delay was deemed prejudicial. Additionally, Article 90 required a judicial confirmation within three days of the seizure. It also provided that the person whose property had been seized could complain to a judge at any time for a review of the legality of the seizure. 23.     In order to apprehend a suspect or to collect evidence, authorities could carry out a search of the residence of a person who was suspected of committing a crime or aiding and abetting others to commit a crime (Article   94). Other persons’ premises could only be searched for the purposes of apprehending a suspect, collecting evidence or seizing particular property (Article 95). 24.     Article 99 provided that the person who was the subject of a search by the authorities had to be given a document noting the prospective charges that he/she may be facing and a list of the seized property. If the authorities seized property which belonged to the victim of the suspected crime, it was to be returned to its owner either prior to or at the end of the investigation (Article 103). 25.     Furthermore, according to Article 194 of the Criminal Code, if an authority invaded a person’s privacy by abusing its power, or did not follow the procedure prescribed by law, its officers could be charged and punished with imprisonment. C.     Code on the Establishment and Procedures of State Security Courts 26.     Article 13 provided that prosecutors at State Security Courts had the same powers as the public prosecutors of general courts. THE LAW I.     THE   GOVERNMENT’S PRELIMINARY OBJECTIONS 27.     The applicant complained under Article 8 of the Convention and Article 1 Protocol No. 1 about the search of his home and office, as well as the seizure of his videotapes. He also complained under Article 13 of the Convention that he had no effective remedy in domestic law in respect of his Convention grievances. A.     Six-month’s rule 28.     The Government maintained that the applicant’s application form dated   27 March 2001 was received by the Court on 6 April 2001, whereas the last decision of the domestic authorities was given on 19   September   2000. They therefore argued that the application must be rejected for failure to comply with the six month’s rule. 29.     The Court notes that the applicant’s initial letter, setting out the essence of his application to the Court, was dated   5   January 2001 and was sent to the Registry by fax on the same day. It follows that the applicant’s complaints have been introduced within the six-month time-limit prescribed by Article 35 § 1 of the Convention. It therefore dismisses the Government’s preliminary objection in this regard. B.     Non-exhaustion of domestic remedies 30.     The Government claimed that the applicant had failed to file an objection against the decision of the Ankara State Security Court on 16 June 1999, authorising the search of the head office and branches of the Mazlumder (paragraph 6 above). Furthermore they argued that, under Article 103 of the Code of Criminal Procedure, the applicant had the possibility to bring a civil action in order to reclaim his videotapes. Consequently, his complaint under Article 1 of Protocol 1 must be dismissed, under Article 35 § 1 of the Convention, for failure to exhaust domestic remedies. 31.     As to the first limb of the Government’s objection, the Court observes that the search warrant issued by the judge at the Ankara State Security Court authorised the search of the headquarters and branches of the association only, and not the homes and offices of the board members. However, the applicant’s complaint concerned the search of his home and office and the seizure of his belongings by the police without an appropriate judicial decision. It follows that, filing an objection against the search warrant issued by the court, would not have been an effective domestic remedy for his grievances under the Convention. 32.     As regards the second limb of the Government’s objection, the Court observes that Article 103 of the Code of Criminal Procedure concerned the restitution of property belonging to the victim of the alleged crime (paragraph 24 above). It notes that, since the applicant was not the victim of an alleged crime which the authorities were investigating, Article 103 of the Code of Criminal Procedure could not constitute a remedy for the return of the applicant’s confiscated property. 33.     In the light of the above considerations, the Court dismisses the Government’s preliminary objection and notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. II.     ALLEGED VIOLATION OF ARTICLES 8 and 13 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 34.     The applicant complained about the search of his home and office, the seizure of his videotapes and an absence of effective domestic remedies for his Convention grievances. He invoked Articles 8 and 13 of the Convention as well as Article 1 of Protocol No. 1, the relevant parts of which provide as follows: Article 8 “1.   Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety ... for the prevention of disorder or crime, or for the protection of the rights and freedoms of others.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” Article 1 of Protocol No. 1 “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest...” A.     Submissions of the parties 35.     The applicant contended that the search of his home and office was illegal, given the lack of any clear authority from the judge at the Ankara State Security Court and the arbitrary nature of the searches and seizures. Moreover, he claimed that the videotapes seized during the search were not returned to him until four years after the search and one year after the decision of non-prosecution in respect of the General Secretary of the Association. He submitted that even the temporary deprivation of the videotapes constituted a violation of Article 1 of Protocol   No. 1. He further complained that he was not given any document duly authorising the search, nor a list of the seized items or the copied documents. 36.     The Government contended that the search of the applicant’s home and office, and the confiscation of personal items and documents, were authorised by the Ankara State Security Court in accordance with the law, namely Article 13 of the Law on the Establishment and Procedures of the State Security Courts, as well as Articles 86, 94, 95, 96, 97, 98 of the Code of Criminal Procedure. They maintained that, although the search warrant of   16   June   1999 did not explicitly authorise the search of all board members’ home and offices, in the light of Articles 94 and 95 of the Code on Criminal Procedure, it could legitimately be interpreted to include the applicant’s premises as well. 37.     Furthermore, the Government claimed that the confiscation of the applicant’s videotapes did not raise any issue under Article 1 of Protocol   No. 1, as any interference with his property was justified in the public interest, within the meaning of that provision. In this connection, the Government emphasised that the search was necessary under Article 8 § 2 of the Convention for the prevention of disorder and crime. They further noted that the applicant and his wife gave their consent to the search, as indicated by the record which they have signed. 38.     As regards the applicant’s complaint under Article 13 of the Convention, the Government referred to the possibility of requesting a court, pursuant to Article 90 of the Code of Criminal Procedure, to review the lawfulness of the seizure. Moreover, they alleged that the applicant could have resisted the police by not letting them enter his house. 39.     In conclusion, the Government contended that the applicant’s complaints under Articles 8 and 13 of the Convention, as well as Article 1 of Protocol No. 1, were wholly unfounded. B.     The Court’s assessment 40.     The Court will first examine the applicant’s complaints under Article   8 of the Convention. It finds that the search of the applicant’s home and the seizure of videotapes constituted an interference with his rights under this provision. The Court likewise finds that the search of his professional office and the photocopying of some documents found there, amounted to an interference with his right to respect for his home (see, Niemietz v. Germany , 16 December 1992, Series A, no. 251-B, § 30, and Elçi and Others v. Turkey , nos. 23145/93 and 25091/94, §   696, 13 November 2003). The question remains whether this interference was justified under paragraph 2 of Article 8 and, more particularly, whether the measures were “in accordance with the law” for the purposes of that paragraph. 41.     The Court observes that the search order issued by the Ankara State Security Court only authorised the search of the headquarters and branches of the association (paragraph 6 above). Maintaining that there was an urgent situation, the Public Prosecutor extended the scope of the search warrant and ordered the search of the homes and offices of the association’s General Director and board members (paragraph   7 above). Subsequently, when communicating the search orders of the State Security Court and the Public Prosecutor to the governors, the Under-Secretary of State of the Ministry of the Interior specified that not only the homes and offices of the General Director and board members should be searched, but also the premises of all branch board members (paragraph 8 above). 42.     The Court finds that the search warrant initially issued by the court and extended by the Public Prosecutor was interpreted by the Under-Secretary of State of the Ministry of the Interior in too broad a manner when including the home and office of the applicant, who was a board member of the İzmir branch. It observes that the search and seizures were extensive and that privileged professional materials were taken without special authorisation. No judicial authorisation was shown to the applicant beforehand or afterwards. There was no court decision confirming the seizure of items or the photocopying of documents within three days of the measure being taken, as required by Article   90 of the Code of Criminal Procedure. Similarly, the applicant was not given a list of the copied documents in compliance with Article 90 of the Code of Criminal Procedure. 43.     Furthermore, the Court notes that the applicant’s requests that criminal proceedings be initiated against the officials involved in the events of the present case were dismissed without any reasons being given (paragraphs 14 and   16 above), while his request for the return his videotapes, seized during the search of his home, was left unanswered (paragraph 15 above). 44.     In sum, the Court finds that the search of the applicant’s premises and the seizure of his property and documents were implemented without any proper authorisation or safeguards (see, Elçi and Others , cited above, § 699). In these circumstances, the Court concludes that the interference with the applicant’s rights has not been shown to have been “in accordance with the law”. There has accordingly been a violation of Article 8 on this ground. In view of this conclusion, the Court does not find it necessary to examine the other issues of justification arising under this Convention provision. 45.     Moreover, having regard to its conclusion of a violation of Article 8 of the Convention, the Court does not find it necessary to examine separately the applicant’s complaints under Article 13 of the Convention (see, mutatis mutandis , Monory v. Romania and Hungary , no. 71099/01, §   88, 5   April 2005) or Article 1 of Protocol No. 1. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 46.     Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.     Damage 47.     The applicant claimed 20,000 euros (EUR) in respect of non-pecuniary damage. 48.     The Government maintained that this claim was not only excessive, but was also without any basis. 49.     The Court considers that the applicant must have suffered some moral damage which cannot be compensated solely by the finding of a violation. Having regard to the nature of the violation found in the present case and deciding on an equitable basis, it awards the applicant EUR 2,000. B.     Costs and expenses 50.     The applicant also claimed EUR 5,000 in costs and legal expenses. 51.     The Government maintained that only those expenses actually incurred can be reimbursed. In this connection, they submitted that all costs and expenses must be documented by the applicant and that approximate figures cannot be considered relevant to prove expenditure. 52.     Deciding on an equitable basis and having regard to the criteria laid down in its case-law, the Court considers it reasonable to award the applicant EUR 1,000 in respect of his costs and expenses. C.     Default interest 53.     The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT UNANIMOUSLY 1.     Declares the application admissible;   2.     Holds that there has been a violation of Article 8 of the Convention;   3.     Holds that there is no need to examine separately the complaints under Article 13 of the Convention and Article 1 of Protocol No.1;   4.     Holds a)     that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article   44 § 2 of the Convention, the following sums, to be converted into new Turkish liras at the rate applicable at the date of settlement: (i)     EUR 2,000 (two thousand euros) for non-pecuniary damage; (ii)     EUR 1,000 (one thousand euros) for costs and expenses; (iii)     plus any tax that may be chargeable; (b)     that, from the expiry of the above-mentioned three months until settlement, simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;   5.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 24 October 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   S. Dollé   J.-P. Costa   Registrar   President