CEDH · CASELAW;CLIN;ENG — 8 août 2006

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Turkey - 34494/97 Judgment 8.8.2006 [Section IV] Article 8 Article 8-1 Respect for home Allegedly illegal search of the applicant’s home: violation   Facts : At the time of the events the applicant was a primary-school teacher and one of the leaders of the local branch of a trade union for employees in public-sector education. On several occasions between 1995 and 1996 he was prosecuted for criminal offences or instituted proceedings against police officers in connection with his trade-union activities. On 15 March 1996, at about half past midnight, four individuals in civilian clothing, who introduced themselves as police officers, went to the applicant’s home, where his wife and two sons were also present. Accusing the applicant and one of his sons of illegal activities and of harbouring criminals, they searched the house without presenting a search warrant. Considering that he had been subjected to an unlawful search, the applicant lodged a complaint on the same day; a public prosecutor took a statement from him immediately. On 20 March 1996 the prosecutor ruled that there was no case to answer, given the “absence of an act constituting any offence”, on the ground that, according to information provided by the police department, no search of property or persons had been carried out at the applicant’s home. The applicant appealed unsuccessfully against that decision. In June 2003, after the European Court of Human Rights had communicated the application to the Turkish Government, the public prosecutor invited the police authorities concerned to identify the officers likely to have conducted the search of the applicant’s home. The authorities replied that the alleged incident was not imputable to members of the security forces, that the investigations previously carried out into the matter had resulted in a finding that there was no case to answer and that, in the meantime, the statutory limitation period had expired. The applicant was accordingly informed that his case had been discontinued. Law : The essential object of Article 8 was to protect the individual against arbitrary interference by the public authorities. However, it could also imply an obligation on the authorities to conduct an investigation where that was the only legal way to shed light on the events in question, to maintain public confidence and to prevent any appearance of collusion in or tolerance of unlawful acts by the public authorities. The case file contained no evidence enabling the Court to conclude with certainty that a search had been carried out at the applicant’s home. The question remained whether the inability to reach any such conclusion resulted from a failure by the Turkish authorities to respond adequately to the applicant’s allegations. In that respect, having regard to the applicant’s past, during which he had been prosecuted several times on account of his trade-union activities and had made accusations against members of the local police force, the prosecutor, who was certainly aware of that situation, might have been expected to examine whether, given the applicant’s tendency to challenge the status quo, he was likely to have been subjected to acts of intimidation. In any event, it would have sufficed for the prosecutor to take witness statements from members of the applicant’s family in order to substantiate the “arguable” nature of the allegations before him, given that those witness statements, as submitted to the Court, appeared sincere, credible and consistent. Yet no such action had been taken, and the doubt raised in the case had not been dispelled by the alleged investigation, which the prosecutor had closed in five days. Accepting without reservation the information submitted by the police authorities, that officer had concluded that, contrary to what the applicant alleged, no State agent had been involved in the alleged incident. Having regard to the obligation to carry out an investigation laid down by Article 8, the Court considered that, once application had been made to it, the public prosecution service ought to have examined the applicant’s complaint in such a way as to demonstrate at least a willingness to establish the facts, then to identify those responsible. In those circumstances, the applicant could claim to be a victim of a failure to protect his right to respect for his home and there had therefore been a procedural violation of Article 8 on account of the inadequate nature of the investigation. Conclusion : violation (unanimously). Article 41 – The Court considered that the finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes