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SECOND SECTION
CASE OF TANER KILIÇ v. TURKEY
(Application no. 70845/01)
JUDGMENT
STRASBOURG
24 October 2006
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
- 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.
- 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.
- 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
- The applicant was born in 1969 and lives in İzmir.
- He is a lawyer and a board member of the İzmir
branch of the Human Rights Association for Oppressed People
(Mazlumder).
- 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.”
- 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.”
- 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.”
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- The Court refers below to the pertinent domestic law,
concerning search and seizure, in force at the time of the incident:
A. The Constitution
- 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
- 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.
- 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).
- 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).
- 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
- 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
- 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
- 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.
- 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
- 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.
- 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.
- 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.
- 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
- 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
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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).
- 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.
- 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).
- 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.
- 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
- 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
- The applicant claimed 20,000 euros (EUR) in respect of
non-pecuniary damage.
- The Government maintained that this claim was not only
excessive, but was also without any basis.
- 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
- The applicant also claimed EUR 5,000 in costs and
legal expenses.
- 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.
- 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
- 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
- Declares the application admissible;
- Holds that there has been a violation of Article
8 of the Convention;
- Holds that there is no need to examine
separately the complaints under Article 13 of the Convention and
Article 1 of Protocol No.1;
- 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;
- 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
