CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 20 novembre 2018

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A.Ş. v. TURKEY   (Applications nos. 25707/05 and 28614/06)                 JUDGMENT     STRASBOURG   20 November 2018     FINAL   18/03/2019   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Erduran and Em Export Dış Tic. A.Ş. v. Turkey, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Robert Spano, President,   Ledi Bianku,   Işıl Karakaş,   Paul Lemmens,   Valeriu Griţco,   Jon Fridrik Kjølbro,   Ivana Jelić, judges, and Stanley Naismith, Section Registrar, Having deliberated in private on 23 October 2018, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in two applications (nos. 25707/05 and 28614/06) 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 Mehmet Erduran, and Em Export Dış Tic. A.Ş., a company registered in Turkey (“the applicants”), on 8 July 2005 and 31 May 2006 respectively. 2.     The applicants were represented by Mr O. Konak, a lawyer practising in Strasbourg. The Turkish Government (“the Government”) were represented by their Agent. 3.     The applicants complained under Article 8 of the Convention about the search and seizure carried out at their business premises. They also alleged that the domestic court’s use of a tax-assessment report, which according to them had been prepared unlawfully, as the sole evidence in their case had violated their rights under Article 6 of the Convention. Lastly, they complained of a violation of their rights under Article 1 of Protocol No.   1 on account of the imposition of taxes and penalties on them. 4.     On 25 January 2011 the Government were given notice of the applications. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The first applicant was born in 1941 and lives in Istanbul. He is the president of the second applicant, a company with its registered office in Istanbul. 6.     In 1984 the second applicant, Em Export Dış Ticaret A.Ş. (hereinafter “the applicant company”), entered into a business contract with a State-owned company, namely the Iron and Steel Company of Turkey ( Türkiye Demir Çelik İşletmeleri ), for transactions in substantial amounts of coal and iron between the two companies over a certain period of time. 7.     In 1988 and 1990 respectively, the applicant company brought two sets of proceedings before the Ankara Commercial Court, claiming that the Iron and Steel Company had failed to respect its contractual obligations. The court joined the two sets of proceedings and accepted the applicant company’s case. It ruled that the Iron and Steel Company was to give the applicant company a certain amount of iron and pay it compensation. The Iron and Steel Company appealed against the judgment. In the meantime, the applicants initiated enforcement proceedings while the case was still pending before the Court of Cassation. 8.     As a result of the enforcement proceedings, in 2000 the Iron and Steel Company paid a total of approximately 1,600,000,000,000 Turkish liras (TRL) [1] to the applicant company. 9.     By a letter dated 23 June 2000, the then under-secretary to the Treasury wrote to the Ministry of Finance requesting a tax audit of the applicant company. In their letter, the authorities indicated that the enforcement proceedings had caused such substantial damage to the Iron and Steel Company that some of its factories had stopped production. They claimed that the applicant company’s initiation of enforcement proceedings without having waited for the final decision had aimed at obstructing the Iron and Steel Company’s business and benefiting from its financial difficulties. 10.     On 27 July 2000 the Directorate General of Tax Inspectors ( Vergi Denetmenleri Bürosu Başkanlığı – hereinafter “the Tax Inspectorate”) decided that an audit would be carried out in respect of the applicant company. 11.     On 23 August 2000, having established that the applicant company could not be found at its registered addresses, two tax inspectors went to another address in Mecidiyeköy, Istanbul, which appeared to be its business premises, in order to examine its account books. The records subsequently prepared by the inspectors stated that the first applicant, who had introduced himself with a false name, had requested a period of fifteen days to submit the relevant documents and had refused to sign the records. The inspectors also noted that following the first applicant’s refusal to sign the records, they had summoned a police officer and prepared an official letter in his presence. That official letter invited the applicant company to submit all documents related to its income and expenditure within fifteen days. The applicant company was informed that it should make a specific request in order to have the audit conducted at its premises, provided that the premises were available for such a procedure. The letter also stated that the representatives of the applicant company would be charged with tax evasion if they failed to declare the company’s income and present its account books. 12.     By a letter dated 5 September 2000, the applicant company informed the inspectors that the documents were ready for examination at its office. It said that a separate room at its premises would be allocated to the inspectors during the audit and asked to be given two days’ notice in order to prepare the room and the staff who would present the documents. 13.     On 13 September 2000 one of the inspectors, S.K., sent an official letter to the applicant company, stating that it was not possible to carry out the audit at its business premises as the address was not registered. She invited the first applicant to provide her with the documents requested previously within fifteen days. 14.     On 29 September 2000 the first applicant responded, arguing that S.K. had not complied with the relevant legislation and that she had acted in bad faith. He pointed out that the documents were at the disposal of the authorities for examination at the applicant company’s premises on condition that they gave it five days’ notice. 15 .     On 10 October 2000 the tax inspectors went to the address in Mecidiyeköy together with two police officers. According to the records, the applicant company’s staff refused to present the required documents and requested five days’ notice to do so. Subsequent records stated that following a discussion during the drafting of the first record, the staff had decided to present the books for 1998 but not those relating to the tax year 2000. The inspectors stated that seven books and a total of 396 receipts had been submitted. They pointed out that all of the documents had been signed, stamped and given back to the company’s representatives. Lastly, they noted that although the office was physically available to them to carry out an audit, it would not be possible to do so in view of the tension caused by the company’s staff. The records were signed by those present, namely two inspectors, two police officers and the applicant company’s lawyer. 16.     On 26 October 2000 S.K. applied to the Şişli public prosecutor’s office in the name of the Tax Inspectorate, requesting a warrant to search three addresses related to the applicant company. She submitted that an examination of its tax files had revealed that the applicant company appeared to be hiding the money it had received from the Iron and Steel Company in order to evade the payment of taxes. Summarising the content of the records drawn up until that point and referring to all the correspondence between her and the applicant company, she maintained that the company’s representatives had acted in a hostile manner and tried to obstruct the work of the inspectors by hiding information such as their names and the official address of the company, as well as by unjustly accusing her. She pointed out that under section 138 of the Tax Procedure Act, the authorities were not required to inform taxpayers in advance of an audit and that in view of that provision, the applicant company’s request to have several days’ notice, despite having already been informed of the audit, was unacceptable. She concluded that a search was required under those circumstances. 17.     On the same day the Şişli Magistrates’ Court issued a warrant authorising a search of the applicant company’s premises. The relevant parts of the search warrant read as follows: “Pursuant to the Şişli public prosecutor’s request dated 26 October 2000, it is decided that: 1.     A search will be carried out at the business premises of Em Export Dış Ticaret A.Ş., located at ... Mecidiyeköy, Istanbul, taking into account that the account books and other documents to be examined are [being] presented to the authorities at that address. The search will be conducted during the daytime and only once. 2.     The request with regard to the other two addresses is rejected for the reason indicated above.” 18.     Later the same day, two tax inspectors, including S.K., searched the applicant company’s premises and seized a number of documents. According to the records, the search was carried out in the presence of the first applicant, staff members of the applicant company and two police officers. It was noted that the documents that were considered relevant for the audit had been placed in a bag and sealed, and that a detailed inventory would be made at a later stage. The records were signed by the two inspectors, the two police officers and a staff member of the applicant company. The first applicant refused to sign them. 19.     On 1 November 2000 the applicant company was informed that the seized documents would be “unsealed” ( mührün fekki ) on 28   November 2000 and was invited to be present during the procedure. 20 .     On 27 November 2000 the first applicant sent a letter, stating that he had not understood the meaning of “unsealing”. He reiterated his argument that the audit should be carried out at the applicant company’s premises. 21.     On 28 November 2000 S.K. and two other inspectors opened the two bags containing the documents that had been seized during the search and drew up an inventory. The inspectors recorded the fact that the seals had been broken in the absence of the taxpayer as it had not attended the procedure despite having been invited to do so. The inventory listed the names of all the books and tax declarations seized. A note was made that the receipts concerning various years had been classified and sealed separately. 22.     On 11 December 2000 the head of the Tax Inspectorate informed the first applicant of the address where the seized documents were being kept. He also explained what “unsealing” meant. 23.     By two letters dated 4 November and 6 December 2000 the Tax Inspectorate requested that the applicant company submit the account books for the years 1996, 1997 and 2000, as they were not among the seized documents. 24.     On 23 December 2000 the applicants submitted certain documents. 25.     On 23 January 2001 the Tax Inspectorate requested an extension of the audit period, on account of the substantial number of documents seized during the search and the fact that the applicant company had not submitted the missing documents until 23 December 2000. It also stated that the applicant company had not yet presented some of the documents requested. In line with the request, the Şişli Magistrates’ Court extended the audit period by six months. 26 .     The applicants objected to that decision.   On 31 May 2001 the Şişli Criminal Court of General Jurisdiction decided to annul the remainder of the extended period, holding that the four months that had passed since the Magistrates’ Court’s decision must have been sufficient to conclude the audit. 27.     During the course of the audit, tax inspector S.K. compiled three records, listing in detail the information obtained from the seized documents and putting certain questions to the applicants in respect of those. One of the records was read by the applicants’ lawyer, who objected to its findings by means of a handwritten note. The other two records stated that the applicants had submitted a letter, according to which they refused to sign them. Consequently, the seized documents had been kept by the authorities. 28.     In the meantime, S.K. had several exchanges of correspondence with the enforcement authorities, whereby she requested certain information about the amount that had been paid to the applicant company and how much of that amount corresponded to interest. 29 .     By a letter dated 1 May 2002 the applicant company was informed that the audit had been completed. 30.     On 25 May 2002 S.K. drew up a tax-assessment report, noting several irregularities in the applicant company’s financial records and payment of taxes, in particular with regard to the amount it had obtained as a result of the payment made to it by the Iron and Steel Company. In that connection, among many documents examined, the report also referred to the information provided by the enforcement authorities, which specified the total amount paid to the applicant company by the Iron and Steel Company and the interest rate applied in the calculation of that amount. It pointed out that the applicant company, which had not been active for a long time, appeared to have made a substantial number of transactions with some of its partners, without any documents justifying them. Moreover, it found that the company had profited from its investments in foreign currencies, which had not been declared to the authorities. Concluding that the applicant company had acted fraudulently in its bookkeeping, the report requested that corporate income tax and provisional tax be imposed on it, together with a penalty for potential lost revenue. As regards the procedure that had been followed, the report pointed out that the authorities had been unable to locate the applicant company at its registered addresses. It also stressed the difficulties caused to them by the company’s staff at another address which the company was using temporarily as its business premises. Reiterating the content of the records drawn up during the visits to that latter address, the report noted that after having obtained a search warrant from the Magistrates’ Court, the inspectors had had to seize the relevant documents and take them to the Tax Inspectorate, as the audit could not be carried out there due to the staff’s behaviour and as it was not the applicant company’s registered business address within the meaning of section 139 of the Tax Procedure Act (Law no.   213). 31.     On 11 July 2002 the Tax Office issued several tax notices to the applicant company under sections 341 and 344 of the Tax Procedure Act. It ordered it to pay TRL 123,205,000,000 in income tax and TRL   587,688,150,000 [2] as a penalty ( cezalı gelir stopaj vergisi ve fon payı tarhiyatı ) in respect of different periods of year 2001. For the year 2000, the Tax Office ordered the applicant company to pay provisional income tax of TRL   111,059,520,000 and a penalty of TRL 563,071,740,000 [3] ( geçici kurumlar gelir vergisi ve vergi ziyaı cezası ). A.     Proceedings concerning the income tax and penalty imposed in respect of the year 2001 1.     Taxation proceedings 32.     The applicant company brought two sets of proceedings before the Istanbul Tax Court, requesting the annulment of the income tax and the penalty imposed in respect of different periods of year 2001. It stated that both the tax and the penalty had resulted from the payment made to it by the Iron and Steel Company following the judgment of the Commercial Court to that effect, and that the amount was not yet subject to any tax as proceedings were still pending before the Court of Cassation. It also challenged the findings of the tax-assessment report, arguing that the transactions between partners did not justify the imposition of the tax and the penalty. With regard to the procedure, the applicant company claimed that both the search and the audit had been conducted unlawfully. Despite the allegations of tax inspector S.K., its address was registered and the documents should have been examined at its premises. Although the Tax Procedure Act provided that a search could only be conducted on suspicion of tax evasion, S.K. had obtained a search warrant without there being any such indication. The applicant company further alleged that S.K. had refused to make an inventory of the documents seized during the search, had prevented it from sealing the documents with its own seal and had distorted the facts in the search records as well as in the tax-assessment report she had drafted. Lastly, the audit had been carried out unlawfully after the expiry of the period indicated in the warrant issued by the domestic court. 33.     On an unspecified date the Tax Court held a hearing attended by the applicants and S.K. 34 .     On 11 June 2003 the Tax Court delivered two judgments regarding the two sets of proceedings brought by the applicant company. The court allowed the applicants’ claims in part, and reduced the tax penalty to one-third of the amount originally imposed. It dismissed the applicant company’s claims as regards the unlawfulness of the search and seizure, finding that the procedure had been in compliance with the relevant legislation. Referring to section 139 of the Tax Procedure Act, the court held that the applicants’ behaviour before the search, as well as their failure to submit the required documents and to respond to the tax inspectors’ letters, had made it clear that the audit could not be conducted at the applicant company’s premises. It also held that the documents in the case file did not substantiate the company’s allegations against the tax inspector. As for the tax and the penalty imposed, the court held that despite certain flaws in the tax inspector’s methods, the findings of the tax-assessment report were reliable. In that connection, it held that the amount paid to the applicant company by the Iron and Steel Company was subject to taxation and that the former had failed to clarify the source of substantial transactions with some of its partners. 35.     The applicant company appealed, arguing, inter alia , that the Tax Court had relied on the tax-assessment report, which, according to it, had been drawn up unlawfully. S.K. had distorted the content of certain documents she had seized during the search and had not notified it of the records she had drawn up during the course of the audit, in breach of the relevant legislation. Lastly, the applicant company requested that a criminal investigation be opened against S.K. 36.     On 27 April 2004 the Supreme Administrative Court upheld the judgments. 37.   The applicant company applied for rectification of the judgment, arguing that although the tax-assessment report pointed to the absence of certain receipts as one of the reasons for the penalty, those receipts and other important documents had unlawfully been taken from its premises during the search and had not been made accessible to the applicants later on. It submitted that despite its requests to that effect, the Tax Court had failed to obtain those documents and to request that criminal proceedings be instituted against the officials who were responsible for their unlawful seizure. The Supreme Administrative Court rejected the rectification requests on 25   November 2004. Final decisions were served on the applicant company on 10 January 2005. 2.     Provisional seizure measures imposed on the applicant company and criminal proceedings against tax inspector S.K. 38.     On 14 November 2000 and 29 June 2001 respectively, the Governorship of Istanbul imposed two provisional seizure measures on the applicant company in line with S.K.’s reports. 39.     Both seizure measures were found to be unlawful and were annulled by the Istanbul Tax Court. 40.     Subsequently, on 19 December 2001 the applicant company requested that criminal proceedings be instituted against S.K., claiming that she had abused her powers by presenting false information to the authorities. On 14 October 2002 the Governorship of Istanbul delivered a decision. Finding that S.K. had acted in compliance with the law, it refused to give permission for the opening of an investigation against her. 41.     On 20 February 2003 the District Administrative Court dismissed an objection lodged by the applicant company to that decision. B.     Proceedings concerning the provisional tax and penalty imposed in respect of the year 2000 42.     The applicant company brought two sets of proceedings before the Istanbul Tax Court, this time requesting the annulment of both the provisional income tax and the penalty imposed in respect of tax year 2000. It argued that the tax assessment report had been drafted in vague terms and had failed to clearly indicate the reasons for its conclusions. In its petition, the applicant company repeated once again its claims as regards the unlawfulness of the search and the audit. 43.     On 11 June 2003 the Tax Court accepted the cases and held that both the provisional income tax and the penalty related to it had been imposed unlawfully. The domestic court noted that due to the applicant company’s failure to declare its yearly income in full, its income for year 2000 had been calculated ex proprio motu by the authorities. It found that an income calculated in that manner was not subject to provisional taxation and that no penalty could be imposed on the company as a result. The court did not mention the search and seizure. 44.     On 27 April 2004 the Supreme Administrative Court partially quashed the judgments, finding that although the annulment of the provisional taxation was in line with the relevant legislation, as the set-off period had elapsed, under the relevant provisions a penalty could still be imposed for failure on the part of the taxpayer to declare the correct amount. 45.     On 10 March 2005 the Tax Court dismissed the applicant company’s claim for annulment of the penalty, holding that it was in line with the legislation as the company had failed to declare a certain part of its income. The court held that it was not necessary to rule on the provisional tax, as that part of the judgment had already been upheld by the Supreme Administrative Court. 46.     The applicant company appealed. After raising several arguments concerning the imposition of the tax penalty and its calculation, it pointed out that the search had been conducted unlawfully in that all the documents had been seized by the inspectors without making an inventory. It further argued that the Tax Court had failed to address its arguments and to deliver a reasoned judgment. 47.     On 5 October 2005 the Supreme Administrative Court upheld the judgments. The decisions were served on the applicant company on 2   December 2005. 48.     In 2004 and 2005 the applicant company made several payments to the Tax Office as regards the years 2000 and 2001. II.     RELEVANT DOMESTIC LAW A.     Tax Procedure Act (Law no. 213) 49.     The relevant provisions governing tax audits (sections 134-141) and searches (sections 142-7) read as follows: Section 138 “The date of a tax audit does not have to be notified to the taxpayer in advance. ...” Section 139 “As a general rule, tax audits shall be carried out at the taxpayer’s business premises. If substantial reasons, such as the unavailability of the premises or death, render the audit at the premises impossible, or if the taxpayer and the inspectors so wish, the audit may be carried out at the tax office. In such a case, the taxpayer shall be requested to bring his or her books and documents to the tax office. Those who do not bring their documents to the tax office in time shall be deemed to have failed to present them to the authorities ...” Section 142 “If there are indications that a taxpayer is evading the payment of taxes, the premises belonging to that person or to any other person found to be associated with the evasion may be searched. A search may be carried out only on fulfilment of the following conditions: 1.     if those who are authorised to conduct a tax audit consider a search necessary and submit a reasoned request to the magistrates’ court; 2.     if the magistrates’ court decides that the search could be carried out in the requested places. ...” Section 143 “Any books and documents which are found during the search and deemed necessary for the audit shall be listed in an inventory. If such an inventory cannot be drafted due to lack of time or for any other reason, those books and documents shall be put in a secure place provided by the taxpayer or be transferred to the tax office in bags or boxes ( kablar ). Those places, bags or boxes shall be sealed by those conducting the search and, if possible, also by the seal of the taxpayer. At a later stage, the places, bags or boxes shall be opened and an inventory shall be made. Records shall be drawn up for both the sealing and the unsealing, and a copy of the inventory shall be given to the taxpayer. These actions shall be taken: 1.     by those who are present during the search, if the taxpayer declines to be present during the search or the sealing; 2.     by the person who carried out the search and two other officials, if the taxpayer declines to be present during the unsealing and the drafting of the inventory. The books and documents which are found during the search and deemed necessary for the audit and which are secured in a safe place, or in bags or boxes, may be transferred to the office of the tax inspector even if this was not expressly stated in the search warrant. Those books and documents must be well protected. The administration is liable for any damage that might be caused if it fails to protect them.” Section 144 “In cases where a search has been carried out, the audit shall be conducted expeditiously and before any other business. Documents such as personal letters that are found to be irrelevant for the tax assessment shall be given back to their owners in exchange for a receipt. The taxpayer has the authority to inspect the seized books and documents and to make copies of them in the presence of the relevant official. ...” Section 145 “The audit of the seized books and documents shall be concluded within a maximum of three months and they shall be given back to their owner after a record has been drawn up. In cases where the audit cannot be concluded within three months for valid reasons, that period may be prolonged by a decision of the magistrates’ court. Any acts and account situations that are considered to be unlawful during the course of the audit shall be recorded. If the taxpayer refuses to sign those records, the relevant books and documents shall not be given to him or her until any taxes and penalties imposed in relation to the search have been settled. Those concerned may note their objections and submissions in those records. They may take their books and documents back at any time on condition that they sign the records. The books and documents may be retained by the authorities only if they constitute evidence of an offence.” Section 147 “Cases which are not expressly regulated in this section shall be governed by the provisions of the Code of Criminal Procedure concerning searches.” 50.     Section 341 provides that if the taxpayer fails to fulfil his or her tax-related responsibilities in time or does so in an incomplete manner, the resulting deficiencies in the tax assessment constitute potential lost revenue ( vergi ziyaı ). Section 344 provides that a fine will be imposed on those who cause losses to the Treasury. B.     Code of Criminal Procedure and Criminal Code 51.     Articles 90 to 103 of the former Code of Criminal Procedure in force at the time (Law no. 1412) set out the general terms governing search and seizure. In particular, Articles 90 and 97 provided that the authority to order searches and seizures lay with the judge. Additionally, Article 90 required judicial confirmation within three days of the seizure if the seizure had been carried out without a prior judicial decision. It also provided that the person whose property had been seized could apply to a judge at any time for a review of the legality of the seizure. 52.     Article 94 provided that in order to apprehend a suspect or to collect evidence, the authorities could carry out a search of the residence of a person suspected of committing a crime or aiding and abetting others to commit a crime. 53.     Article 98 provided that the owner of the premises or the items that would be searched should be present during the search. If he or she could not be present, his representative, someone who resided with him or a neighbour should be invited to attend the search. 54.     Article 99 provided that the person who was the subject of a search by the authorities would be given, if he or she so requested, a document indicating the prospective charges that he or she faced and a list of the seized property. 55.     Pursuant to Article 101, seized property would be listed in an inventory. The bags or boxes containing the seized property would then be officially sealed in order to prevent its loss or any change being made to it. 56.     Article 194 of the Criminal Code in force at the time (Law no. 765), stipulated that if an official entered a person’s residence by abusing his or her power, or without following the procedure prescribed by law, he or she would be sentenced to a term of imprisonment of between three months and three years. If that official conducted any other arbitrary acts, such as searching the person’s residence, the prescribed term of imprisonment would start from six months. If private places such as a person’s business premises or offices were searched in breach of the relevant legislation, the perpetrator would be sentenced to a term of imprisonment of between two months and two years. THE LAW I.     JOINDER OF THE APPLICATIONS 57.     Given their similar factual and legal backgrounds, the Court decides that the two applications should be joined in accordance with Rule 42 § 1 of the Rules of Court.   II.     THE FIRST APPLICANT’S VICTIM STATUS   58.     The Court notes that the Government did not raise an objection as regards the first applicant’s victim status. It finds, however, that the question concerns incompatibility ratione personae of the application which goes to the Court’s jurisdiction and which it is not prevented from examining of its own motion (see, mutatis mutandis , Blečić v. Croatia [GC], no.   59532/00, § 67, ECHR 2006 ‑ III; Béláné Nagy v. Hungary [GC], no.   53080/13, § 71, ECHR 2016; and Özmurat İnşaat Elektrik Nakliyat Temizlik San. ve Tic. Ltd. Şti. v. Turkey , no. 48657/06, § 22, 28   November 2017). 59.     The Court reiterates that the term “victim” used in Article 34 of the Convention denotes the person directly affected by the act or omission which is in issue (see, among other authorities, Vatan v.   Russia , no.   47978/99, § 48, 7 October 2004). It further reiterates that a person cannot complain of a violation of his or her rights in proceedings to which he or she was not a party, even if he or she was a shareholder and/or director of a company which was party to the proceedings (see, among other authorities, F. Santos, Lda. and Fachadas v. Portugal (dec.), no.   49020/99, ECHR 2000-X, and Nosov v. Russia (dec.), no. 30877/02, 20   October 2005). Furthermore, while in certain circumstances the sole owner of a company can claim to be a “victim” within the meaning of Article 34 of the Convention where the impugned measures were taken in respect of his or her company (see Ankarcrona v. Sweden (dec.), no. 35178/97, ECHR 2000-VI, and Glas Nadezhda EOOD and Anatoliy Elenkov v. Bulgaria , no.   14134/02, § 40, 11 October 2007), when that is not the case the disregarding of a company’s legal personality can be justified only in exceptional circumstances, in particular where it is clearly established that it is impossible for the company to apply to the Court through the organs set up under its articles of incorporation or – in the event of liquidation – through its liquidators (see Agrotexim and Others v. Greece , 24   October 1995, § 66, Series A no. 330-A; CDI Holding Aktiengesellschaft and Others v. Slovakia (dec.), no. 37398/97, 18 October 2001; Amat-G Ltd and Mebaghishvili v. Georgia , no. 2507/03, § 33, ECHR 2005 ‑ VIII; and Meltex Ltd and Movsesyan v. Armenia, no. 32283/04, § 66, 17 June 2008). 60.     The Court notes that no such exceptional circumstances have been established in the instant case (see, by contrast, G.J. v. Luxembourg , no.   21156/93, § 24, 26 October 2000). It further observes that the first applicant was the main shareholder and the president of the applicant company and not its sole owner. All the material in the Court’s possession indicates that it was the applicant company alone, as a legal entity, which was the subject of the taxes and penalties imposed. Moreover, the first applicant never became a party to the taxation proceedings and all the judgments delivered by the domestic courts concerned the applicant company alone. Accordingly, the Court cannot regard the first applicant as a “victim”, within the meaning of Article 34 of the Convention, of the acts of which he complained (see Meltex Ltd and Movsesyan , cited above, §   67, and Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, §   93, ECHR 2012). 61.     Having regard to the foregoing, the Court concludes that the application, in so far as it was lodged by the first applicant, is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 §   4. 62.     The Court will therefore confine itself to examining the complaints brought on behalf of the applicant company. III.     ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 63.     The applicant company complained that the search of its business premises and the seizure of its documents had violated its right to respect for its home as they had been carried out unlawfully. It relied on Article 8 of the Convention, which reads as follows: “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     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 or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A.     Admissibility 64.     The Government argued that the applicant company had not exhausted domestic remedies as it had not brought its complaints concerning the alleged violation of its right to respect for its home before the domestic authorities. 65.     The applicant company stated that it had submitted its argument as regards the unlawfulness of the search at its business premises at every stage of the taxation proceedings. In particular, in its request for rectification it had drawn the attention of the Supreme Administrative Court to the Tax Court’s failure to lodge a criminal complaint against the officials concerned. The applicant company further submitted that it had also asked the public prosecutor to initiate criminal proceedings against tax inspector S.K. for having carried out the search and the audit in breach of the relevant legislation, but the authorities had not given permission for an investigation to be opened against her. 66.     Taking account of the scope of the Government’s objection, the Court will limit its analysis to establishing whether the applicant company raised its complaint under Article 8 of the Convention before the domestic authorities. 67.     The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law (see, among many other authorities, Elçi and Others v. Turkey , nos. 23145/93 and 25091/94, § 604, 13 November 2003). 68.     The Court observes that although the applicant company did not expressly claim a violation of its right under Article 8 of the Convention before the domestic courts, it raised the complaint in substance on various occasions during the course of the proceedings, arguing that both the search and the audit had been carried out unlawfully and had not complied with the Tax Procedure Act. As for the applicant company’s submission that it requested the opening of criminal proceedings against S.K., the Court observes that its request to the public prosecutor was made solely in relation to S.K.’s report calling for the imposition of provisional seizure on the applicant company. Nevertheless, it appears that the applicant company asked the Tax Court to lodge a complaint with the public prosecutor against the inspector for her conduct during the search. Consequently, the Court finds that the applicant company brought the alleged unlawfulness of the search to the attention of the domestic authorities by means of its submissions before the Tax Court and the Supreme Administrative Court. It is true that in a traditional criminal case, regular trial proceedings would normally not constitute an effective remedy under the Court’s case-law to pursue a claim based on the illegality of a measure of search and seizure by the police (see, mutatis mutandis , P.G. and J.H. v. the United Kingdom , no. 44787/98, § 86, ECHR 2001 IX, and İrfan Güzel v. Turkey , no. 35285/08, §§ 106-7, 7 February 2017). However, the Court notes that in the present case, the applicant company sought the annulment of the tax assessments within two levels of the Turkish administrative tax court system in which the courts were competent to review allegations of illegality of administrative procedures within the context of the tax proceedings.   In view of the foregoing, the Court rejects the Government’s preliminary objection. 69.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 1.     The parties’ submissions (a)     The applicant company 70.     The applicant company argued that the search and seizure and the ensuing audit had not been conducted in compliance with the domestic law and had therefore violated its right to respect for its home. It maintained first of all that under the Tax Procedure Act, an audit must be carried out at a company’s business premises and that the procedure must be conducted expeditiously. However, tax inspector S.K. had acted in bad faith and had applied for a search warrant, despite the availability of the relevant documents at the applicant company’s premises for a period of two months before she submitted her application. Referring to the Court’s judgment in the case of Ernst and Others v. Belgium (no. 33400/96, 15 July 2003), it argued that even assuming that the reasons relied on by the inspector in requesting a search warrant had been relevant, they had not been sufficient to justify the search and seizure. 71.     The applicant company stated that the search warrant had been drafted in broad terms and had not specified the documents that could be seized. Although the domestic legislation provided that tax searches could only be conducted on the basis of a prior judicial decision, it failed to require that the content of such decisions should be specific. The applicant company compared its case to that of Van Rossem v. Belgium (no.   41872/98, 9 December 2004) and stated that the tax inspectors had indiscriminately seized all the documents at its premises without drawing up an inventory and without allowing its staff to seal the bags with its own seal. It claimed that that failure had resulted in the seizure of important documents for the company, some of which had been irrelevant for the purposes of the tax audit. In that connection, it also argued that it had not had access to those documents throughout the proceedings. 72.     As for the audit conducted on the basis of the seized documents, the applicant company claimed that it had been carried out unlawfully after the final date determined by the domestic court. It concluded that the deficiencies in the procedure revealed the domestic authorities’ intention to intimidate it by imposing substantial tax penalties in retaliation for having started enforcement proceedings against the Iron and Steel Company. (b)     The Government 73.     The Government stated that the interference complained of in the present case had been in accordance with the law. The right to respect for home was recognised by the Constitution as a fundamental right and the Criminal Code envisaged substantial sanctions for those acting in violation of that right. The interference in question in the present case had been based on sections 139-47 of the Tax Procedure Act, which regulated in detail the search of business premises within the context of tax evasion and the procedure to be followed during and after such a search. 74.     As regards the legitimate aim of the interference, the Government submitted that the search and seizure at issue had been conducted with a view to collecting evidence which would help establish whether the applicant company had committed tax evasion, a severe offence affecting the rights of others. The impugned measures had thus pursued a legitimate aim for the purposes of Article 8 § 2 of the Convention as they had been taken in the interests of the economic well-being of the country and for the prevention of crime. 75.     As for the necessity of the impugned search and seizure, the Government referred to the Court’s Ernst and Others judgment (cited above) and maintained that the States could resort to such measures in order to obtain evidence regarding certain offences. Nevertheless, their legislation and practice should afford individuals adequate and effective safeguards against abuse. In that connection, they reiterated that sections 139-47 of the Tax Procedure Act provided such safeguards concerning searches and seizures. In the present case the search warrant had been issued by a judge and the aim of the search had been restricted to verifying whether there existed documentary evidence of tax evasion at the applicant company’s premises. The warrant also stipulated that the search would be carried out at one address and only once during the daytime. This, according to the Government, specified the limits of the search and seizure in terms of subject, time and place. 76.     As regards the alleged lack of an inventory, the Government stated that in complex cases such as the one at issue, which required the seizure of a substantial number of documents, it was not possible for inspectors to make an inventory immediately at the place searched. They argued that in any event, in such cases, the question whether an inventory was drawn up or not did not affect those concerned as all the documents seized were at the disposal of the parties, in compliance with the rights of the defence. 77.     Lastly, the Government contended that the search and seizure in the present case had been proportionate to the aim pursued, in that they had been carried out in relation to proceedings concerning tax evasion and the officials had acted within the limits of the warrant. 2.     The Court’s assessment (a)     Whether there was an interference 78.     The Court observes first of all that it is common ground between the parties that the search of the applicant company’s premises and the seizure of its documents constituted an interference with its right to respect for its “home” guaranteed by Article 8 of the Convention (see Bernh Larsen Holding AS and Others v. Norway , no. 24117/08, § 106, 14 March 2013). (b)     Whether the interference was justified 79.     Next, the Court has to determine whether the interference was justified under paragraph 2 of Article 8, in other words whether it was “in accordance with the law”, pursued one or more of the legitimate aims set out in that paragraph and was “necessary in a democratic society” to achieve that aim. (i)     In accordance with the law 80.     The Court reiterates that the expression “in accordance with the law” not only requires that the impugned measure should have some basis in d