CEDH · CASELAW;COMMUNICATEDCASES;ENG — 22 septembre 2014

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }     Communicated on 22 September 2014   SECOND SECTION Application no. 16224/13 Hüseyin DOĞAN against Turkey lodged on 18 February 2013 STATEMENT OF FACTS The applicant, Mr Hüseyin Doğan, is a Turkish national, who was born in 1982 and lives in Kayseri. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. On 4 March 2013 a complaint was received by the police that a burglary had been committed which bore similarities to a number of other burglaries committed at the relevant time in the city of Kayseri. The Kayseri Prosecution Office opened an investigation following the complaint. The Prosecution Office detected mobile phone signals indicating that a certain İ.A., who had a criminal record for committing similar burglaries, was making telephone calls in the area the burglary was committed. His phone calls also corresponded to the time period of the burglary. The Prosecution Office also observed that İ.A. had called the applicant several times from the same phone. On 16 April 2012 the police conducted a search of the applicant’s home, where he lived with his father. On that day İ.A. was also staying in the applicant’s home. The police found an imitation earring, a necklace and a bracelet in the applicant’s jacket, and also bankrolls in the sum of 11,440   Turkish Liras (TRY) in the room where İ.A. was staying. According to the applicant, no search warrant had been issued for the search. The headman of the neighborhood ( muhtar ) was present during the search. The applicant was arrested during the search and taken to a police station. The items which were seized during the search were shown to the complainant whose house had been burgled. The complainant identified the imitation earring as belonging to her daughter. A criminal case was brought against the applicant and İ.A. for burglary, damage to property and tresspass. The applicant denied all the charges. On 31 May 2012 the Kayseri Assize Court convicted the applicant on all charges. The applicant’s lawyer appealed against the decision and argued that a search warrant had been issued only for İ.A., whereas all the rooms in the applicant’s home had also been searched without a search warrant. He further maintained that the Code of Criminal Procedure required the presence of two witnesses during the search, but only the headman of the neighbourhood had been present. On 17 October 2012 the Court of Cassation upheld the decision of the first instance court without answering the applicant’s arguments. B.     Relevant domestic law Relevant Parts of the Code of Criminal Procedure “Section 119: Search warrant (4)     If private residences, business premises or properties that are not open to the public are to be searched without the public prosecutor being present, two members of the community council in that district or two neighbors shall be called to be present, in order to be entitled to conduct the search.” COMPLAINT The applicant complains under Article 8 of the Convention that the search carried out in his house was unlawful. He maintains that his home was searched in the absence of a search order, and that the search was carried out without the presence of a second participant from the neighbours or the community council.       QUESTIONS TO THE PARTIES   Has there been an interference with the applicant’s right to respect for his home within the meaning of Article 8 § 1 of the Convention?   If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2? In particular were the procedural safeguards laid down in the Code of Criminal Procedure complied with in the search conducted in the present case?