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SECOND
SECTION
CASE OF CEMALETTİN CANLI v. TURKEY
(Application
no. 22427/04)
JUDGMENT
STRASBOURG
18
November 2008
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 Cemalettin Canlı
v. Turkey,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
Dragoljub
Popović,
Nona
Tsotsoria,
Işıl
Karakaş,
judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 21 October 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 22427/04) 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 Cemalettin Canlı
(“the applicant”), on 21 May 2004.
- The
applicant was represented by Mr Gökçen Zorcu, a lawyer
practising in Ankara. The Turkish Government (“the Government”)
were represented by their Agent.
- The
applicant alleged, in particular, that records kept and disseminated
unlawfully by the police about two sets of criminal proceedings which
had been brought against him in the past had violated his right to
respect for his private life under Article 8 of the Convention.
- On
13 November 2007 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1969 and lives in Ankara.
- In
1990 he was prosecuted for his alleged membership of an illegal
organisation, namely Dev-Genç (“Revolutionary
Youth”) but was acquitted on 25 September 1990. Another
set of criminal proceedings brought against him under Article 141 of
the Criminal Code for membership of another illegal organisation,
namely Dev-Yol (“Revolutionary Path”), were
discontinued in 1990 following the repeal of that provision.
- On
23 August 2003 the applicant was on his way to a demonstration in
Ankara, organised by the Confederation of Public Workers' Unions. He
was arrested by the police, who allegedly beat him up. He was taken
to a police station. A police report drawn up the same day stated
that the applicant had a previous record for terrorist related
activity in 1990.
- On
24 August 2003 the Ankara prosecutor filed an indictment, accusing
the applicant and 25 other persons of contravening the Demonstrations
Act, and charged them with the offences of damaging State property
and resisting arrest by using force.
- While
the criminal proceedings were pending before the Ankara Criminal
Court of First Instance (hereinafter “the Ankara court”),
a police report entitled “information form on additional
offences” (Ek Suç Bildirme Formu) was submitted
to the Ankara court. In the report, under the heading “Records
of Guilt” (Suçluluk Kayıtları), were
two entries concerning the applicant which read as follows:
“1- Member of Dev-Yol, 14/03/1990, Political
Offences Branch [of the Police], 3371;
2- Member of Revolutionary Youth, 2/11/1990, Political
Offences Branch [of the Police], 14034”.
- The
report, which also included the applicant's fingerprints, address and
birth registry details, had been drawn up in accordance with Article
12 of the Police Regulations on Fingerprinting, which empowered the
police to keep such details on persons accused or convicted of
certain offences.
- On
27 January 2004 the applicant submitted a complaint to the prosecutor
and brought to the prosecutor's attention his acquittal in 1990 of
the offence of membership of the illegal organisation Dev-Genç,
and the discontinuation in 1990 of the criminal proceedings
concerning his alleged membership of Dev-Yol. The applicant
drew attention to the fact that the Police Regulations on
Fingerprinting also required the police to include in their records
any acquittals or discontinuations of criminal proceedings. He asked
the prosecutor to prosecute the police officers who had neglected
their duties by failing to comply with the Regulations.
- In
his complaint the applicant further argued that the police report as
it stood infringed his right to the presumption of innocence
protected by Article 6 of the European Convention on Human Rights. He
was a sociologist and the author of a number of publications. He drew
the attention of the prosecutor to the national press which had
reported that “one of the persons arrested [in the
demonstration] was a member of Dev-Genç”. He
submitted that he was now regarded as a member of illegal
organisations and this had adverse effects on his professional life
and was detrimental to his psychological integrity.
- On
11 February 2004 the prosecutor dismissed the applicant's request for
the police officers to be prosecuted. The prosecutor considered that
the officers had not attempted to mislead anyone; all they had done
was to forward to a criminal court official records of past incidents
concerning the applicant.
- The
applicant lodged an objection against the prosecutor's decision and
argued that the prosecutor had not examined or even mentioned in his
decision the Regulations in question before deciding not to prosecute
the police officers. He further complained that his rights under the
European Convention on Human Rights, in particular his rights to a
fair trial and to respect for his private and family life, had been
breached.
- The
applicant's objection was rejected by the Sincan Assize Court on
17 March 2004.
- On
8 December 2005 the applicant was acquitted in the criminal
proceedings which had been brought against him on 24 August 2003 (see
paragraph 8 above).
II. RELEVANT DOMESTIC LAW AND PRACTICE, TOGETHER WITH
INTERNATIONAL MATERIALS
- According
to Article 230 of the Criminal Code in force at the time of the
events, it was an offence for a public servant to delay in carrying
out or to omit to carry out his or her duties.
Moreover,
according to Article 26 of the Police Regulations on Fingerprinting,
all decisions relating to the accusations mentioned in police reports
– such as decisions rendered by prosecutors not to prosecute,
court decisions on acquittals, and decisions to discontinue criminal
proceedings – should also be included in the reports and a
certified copy of such decisions should be attached to them.
Competent authorities requiring information on the person in question
should be provided with the reports as well as with the decisions
relating to the accusations mentioned in them.
The
Council of Europe has examined questions of data protection and
concluded the Convention of 28 January 1981 for the Protection
of Individuals with regard to Automatic Processing of Personal Data.
It came into force on 1 October 1985 and its purpose is “to
secure ... for every individual ... respect for his rights and
fundamental freedoms, and in particular his right to privacy with
regard to automatic processing of personal data relating to him”
(Article 1), such personal data being defined in Article 2 as “any
information relating to an identified or identifiable individual”.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the records kept arbitrarily and unlawfully
by the police and the publication in the national press of the
details of those records had had adverse effects on his private life
within the meaning of Article 8 of the Convention, which reads
insofar as relevant as follows:
“1. Everyone has the right to respect for his
private ... life, ...
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 ... public safety or ... the prevention of disorder
...”
- The
Government contested that argument.
A. Admissibility
- The Government argued that the complaint was
inadmissible on account of the applicant's failure to exhaust
domestic remedies. According to the Government, the applicant could
have asked the administrative courts to rectify the records. However,
the applicant had failed to bring this complaint, even in substance,
to the attention of the domestic authorities.
- The Government further argued that the applicant had
failed to bring an action against the newspapers which published the
details of the police report.
- In the opinion of the Government, the complaint filed
with the prosecutor was irrelevant in so far as it aimed to seek
redress for the keeping of the records, because the keeping of the
records had a legal basis; the complaint filed with the prosecutor
could have been an effective remedy only if an offence had been
committed.
- The applicant submitted that he had been unaware of
the records until they were submitted to the Ankara court in 2003
and, as such, it was illogical to expect him to have applied to the
relevant authorities to amend those records prior to 2003. After they
had been submitted to the court in Ankara in 2003 it was too late, as
he had already been portrayed in the media as a member of terrorist
organisations.
- According to the Court's established case-law, where
an applicant has a choice of domestic remedies, it is sufficient for
the purposes of the rule of exhaustion of domestic remedies that that
applicant makes use of the remedy which is not unreasonable and which
is capable of providing redress for the substance of his or her
Convention complaints (see, inter alia, Hilal v. the United
Kingdom (dec.), no. 45276/99, 8 February 2000). Indeed, where an
applicant has a choice of remedies and their comparative
effectiveness is not obvious, the Court interprets the requirement of
exhaustion of domestic remedies in the applicant's favour (see
Budayeva and Others v. Russia, nos. 15339/02, 21166/02,
20058/02, 11673/02 and 15343/02, § 110, ECHR 2008 ...
(extracts), and the cases cited therein). Once the applicant has used
such a remedy, he or she cannot also be required to have tried others
that were also available but probably no more likely to be successful
(see Ivan Vasilev v. Bulgaria, no. 48130/99, § 56,
12 April 2007 and the cases cited therein).
- In
the instant case, the Court observes that, according to Article 230
of the Criminal Code in force at the time of the events, it was an
offence for a public servant to delay in carrying out or to omit to
carry out his or her duties. Moreover, Article 26 of the Police
Regulations on Fingerprinting sets out in an unambiguous fashion the
circumstances in which police records are to be amended to include
information on acquittals or discontinuations relating to the
criminal charges mentioned in those records (see paragraph 17 above).
Indeed, it is not disputed by the Government that it was the duty of
police officers to amend their records.
- The
Court considers that it was reasonable for the applicant to conclude
that the police officers had committed the offence defined in Article
230 of the Criminal Code by failing to perform their duties, and to
make an official complaint to the prosecutor. It is also to be noted
that, contrary to what was submitted by the Government, in the course
of his submissions to the prosecutor and the Assize Court the
applicant expressly referred to his rights under the Convention (see
paragraphs 12 and 14 above).
- Furthermore,
as he pointed out, the earliest opportunity for the applicant –
whose ignorance of the records until 2003 was not disputed by the
Government – to apply to an administrative court and request
the amendment of the records was after the records had already been
submitted to the court in Ankara and had been reported in the media.
- As
for the Government's argument that the applicant failed to sue the
newspapers, the Court observes that the newspapers did not distort
the information contained in the report but published its details as
it stood.
- In
the light of the foregoing, the Court considers that the applicant
has complied with the requirement to exhaust domestic remedies. The
Government's objection in that regard must therefore be rejected.
- The
Court notes that this complaint 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.
B. Merits
- The
applicant maintained that the preparation of and submission to the
Ankara court in 2003 of the police report had been arbitrary and
unlawful. As a result, the report had become public and false
information about him had been widely reported in the media. This, he
maintained, had violated his right to respect for his private life.
- The
Government submitted that, to the extent that the drafting of the
report was to be regarded as an interference with the applicant's
rights under Article 8 of the Convention, it had been in accordance
with the domestic legislation in force at the material time.
Furthermore, it had been necessary in a democratic society in the
interests of public safety and the prevention of disorder.
- The first issue for the Court to deal with is whether
the information in the police report constituted data pertaining to
the applicant's “private life” or whether it was “public
information” and therefore not within the scope of Article 8 of
the Convention. The Court has had regard to the scope of the notion
of “private life” as interpreted in its case-law (see, in
particular, Amann v. Switzerland [GC], no. 27798/95, § 65
ECHR 2000-II, and Rotaru v. Romania [GC], no. 28341/95,
§ 43, ECHR 2000-V) from which it appears that “public
information” can fall within the scope of “private life”
where it is systematically collected and stored in files held by the
authorities. That is all the truer where such information concerns a
person's distant past, as in the present case (Rotaru, §
43).
- The
Court considers this interpretation of the notion of “private
life” to be in line with the Council of Europe's Convention of
28 January 1981 for the Protection of Individuals with regard to
Automatic Processing of Personal Data, which came into force on 1
October 1985 and whose purpose is “to secure ... for every
individual ... respect for his rights and fundamental freedoms, and
in particular his right to privacy with regard to automatic
processing of personal data relating to him” (Article 1), such
personal data being defined in Article 2 as “any information
relating to an identified or identifiable individual”
(paragraph 17 above).
-
In any event, the Court observes that in the impugned report
the applicant was not referred to as someone who had been “accused
of”, “charged with” or “prosecuted for”
the offence of membership of the illegal organisations, but as being
a “member” (paragraph 9 above). Having regard to the fact
that the applicant has never been convicted by a court of law in
relation to the allegations of membership of illegal organisations,
the Court considers that referring to the applicant as a “member”
of such organisations in the police report was potentially damaging
to his reputation. Indeed, the inaccurate nature of the information
contained in the police report was not disputed by either the
prosecutor or the Government.
- In
this connection, the Court reiterates that a person's right to the
protection of his or her reputation is encompassed by Article 8 as
being part of the right to respect for private life (see Pfeifer
v. Austria, no. 12556/03, § 35, ECHR 2007 ...,
and the cases cited therein).
- In
light of the foregoing, the Court considers that Article 8 of the
Convention is applicable and that the keeping and forwarding to the
Ankara court of the inaccurate police report constituted an
interference with the applicant's right to respect for his private
life within the meaning of that provision.
- Such
interference will contravene Article 8 of the Convention unless it is
“in accordance with the law”. The object of Article 8 of
the Convention is essentially that of protecting the individual
against arbitrary interference by public authorities (see Malone
v. the United Kingdom, 2 August 1984, § 67,
Series A no. 82). Furthermore, for the interference
not to infringe a person's rights under Article 8 of the Convention,
its having a legal basis in domestic law will not be sufficient; the
interference must also pursue one or more of the legitimate aims
referred to in Article 8 § 2 and be “necessary in a
democratic society” in order to achieve them.
- The
Government was of the opinion that the interference was “in
accordance with the law” as the report in question had been
drawn up pursuant to the above-mentioned Police Regulations.
- The
Court has had regard to these Regulations and notes that they set out
in detail the circumstances in which the police can keep and forward
to other State departments personal information and the fingerprints
of persons accused and convicted of criminal offences. Of particular
importance for the purposes of the present case, the Regulations
authorise the police to keep such information in their records in
respect of persons accused of serious offences, including membership
of an illegal organisation, that is, the offence with which the
applicant was charged in the past but of which he was subsequently
cleared in 1990.
- The
Regulations also contain provisions for the correction and revision
of the information contained in police records. They oblige the
police to include in their records all information regarding the
outcome of any criminal proceedings relating to the accusations (see
paragraph 17 above).
- Nevertheless,
as pointed out above, not only was the information set out in the
report false, but it also omitted any mention of the applicant's
acquittal and the discontinuation of the criminal proceedings.
Moreover, the decisions rendered in 1990 were not appended to the
report when it was submitted to the Ankara court in 2003. These
failures, in the opinion of the Court, were contrary to the
unambiguous requirements of the Police Regulations and removed a
number of substantial procedural safeguards provided by domestic law
for the protection of the applicant's rights under Article 8 of the
Convention (see, mutatis mutandis, Craxi v. Italy (no. 2),
no. 25337/94, § 82, 17 July 2003).
- Accordingly,
the Court finds that the drafting and submission to the Ankara court
by the police of the report in question was not “in accordance
with the law”, within the meaning of Article 8 § 2 of the
Convention. This conclusion makes it unnecessary to examine whether
the other requirements of paragraph 2 of Article 8 were complied
with.
- It
follows that there has been a violation of Article 8 of the
Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicant complained under Article 6 § 2 of the Convention
that his right to the presumption of innocence had been infringed on
account of the drafting and dissemination of the police report. Under
Articles 6 and 13 of the Convention he further complained that the
prosecutor had not adequately examined his complaints or prosecuted
the police officers.
- The Court considers that these complaints may be
declared admissible. However, in the light of the conclusion reached
under Article 8 of the Convention above, it is not necessary to
examine separately on the merits whether there has also been a
violation of Articles 6 and 13 of the Convention.
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 considered that the sum was excessive and baseless, and,
if awarded, would lead to unjust enrichment.
- The Court considers that the applicant must have
suffered non-pecuniary damage, such as distress and frustration, on
account of the publication in the press of defamatory information
about him, which cannot be sufficiently compensated by the finding of
a violation alone. Making an assessment on an equitable basis, it
awards the applicant EUR 5,000 under this head.
B. Costs and expenses
- The
applicant also claimed EUR 6,000 for the costs and expenses incurred
before the Court. In support of his claim he submitted a fee
agreement, pursuant to which he undertook to pay his legal
representative fees in accordance with the recommendations of Ankara
Bar Association. In another document submitted by the applicant, it
is stated that the Ankara Bar Association recommends 6,000 new
Turkish liras (approximately EUR 3,300) for legal representation in
proceedings before the Court.
- The
Government invited the Court to reject the applicant's claim for
costs and expenses, and argued that the fee agreement signed by the
applicant and his legal representative did not engage the
responsibility of the Government.
- According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum. In the present case, regard being had to
the information in its possession and the above criteria, the Court
finds it reasonable to award the sum of EUR 1,500 for the proceedings
before the Court.
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 Articles 6 and 13 of the Convention;
- 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 5,000 (five thousand euros), plus any tax that may
be chargeable, in respect of non-pecuniary damage, and
(ii) EUR 1,500 (one thousand five hundred euros), plus any
tax that may be chargeable to the applicant, in respect of costs and
expenses;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts 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 18 November 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
Registrar President
