MUSTAFA SEZGIN TANRIKULU v. TURKEY - 27473/06 (Judgment : Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies) Violation of Article 8 ...) [2017] ECHR 669 (18 July 2017)

In the case of Mustafa Sezgin Tanrıkulu v. Turkey,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

          Robert Spano, President,
          Julia Laffranque,
          Ledi Bianku,
          Işıl Karakaş,
          Paul Lemmens,
          Valeriu Griţco,
          Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,

Having deliberated in private on 27 June 2017,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 27473/06) 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 Mustafa Sezgin Tanrıkulu (“the applicant”), on 4 May 2006.

2. The applicant was represented by Mr Ü. Kılınç, a lawyer practising in Strasbourg. The Turkish Government (“the Government”) were represented by their Agent.

3. The applicant alleged, in particular, that the unlawful interception of his communications by the authorities had breached his rights under Articles 8 and 13 of the Convention.

4. On 2 May 2011 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant, who was born in 1963, is a member of the Turkish Parliament and lives in Ankara. At the time of the events giving rise to the present application he was the president of the Diyarbakır Bar Association.

6. On 2 June 2005 the daily newspaper Hürriyet reported statements by a senior intelligence officer, who claimed that the National Intelligence Agency of Turkey (“MİT”) had been intercepting the telephone conversations and email correspondence of a number of people on the basis of approximately ninety court decisions over the previous ten years. The intelligence officer stated that the surveillance had been continuous until March 2005, when the MİT had stopped it in order to wait for the entry into force of the new Criminal Code. However, when a bomb attack had occurred in March in Kuşadası, killing a police superintendent, the MİT had gone to the Sixth Division of the Diyarbakır Assize Court (“the Diyarbakır Assize Court”) to seek permission for the interception of communications.

7. In a decision dated 6 May 2005, relying on Article 22 of the Constitution and sections 2, 4, 11 and 16 of Law no. 4422, the Diyarbakır Assize Court had granted the MİT permission to monitor and examine all electronic communications in order to identify and arrest terrorist suspects with international connections as well as to collect evidence and to prevent crime by having early intelligence of it. The MİT had obtained permission to intercept all domestic or international telephone calls and communications provided between 8 April and 30 May 2005 by national telecommunications company Türk Telekom, private mobile network operators and Internet providers and to obtain information contained in SMS, MMS, GPRS and fax communications, as well as caller IDs, correspondents’ IP addresses and all other communication-related information.

8. On 6 June 2005, after reading the article, the applicant filed a criminal complaint with the Diyarbakır Principal Public Prosecutor’s Office against the judge, S.T., who had delivered the Assize Court decision in question, the public prosecutor, the MİT agents who had sought permission to monitor and examine communications, and the MİT agents who had implemented the decision. Relying on a number of newspaper and online articles, the applicant alleged that S.T. had decided that the records of all domestic and international electronic communications between 8 April and 30 May 2005 should be given to the MİT by the telecommunications companies. The judge had made that decision in complete disregard of the legislation then in force and without carrying out any research or requiring proof. The impugned decision had been of a very general nature since it had not included the names of any suspects or indicated the date, location or address of people whose communications would be intercepted. As a consequence, any person, including himself, who had used a landline or mobile telephone to communicate between the above-mentioned dates, had been a victim of the impugned decision. The applicant maintained that the decision had violated his rights protected by Article 8 of the Convention and had also contravened Articles 20 and 23 of the Constitution, which protected private life and the freedom of communication respectively, since the accused had obtained records of his communications and restricted his freedom of communication without any justification. Lastly, the applicant contended that the implementation of the decision, which had been in contravention of section 2 of Law no. 4422, required the punishment of those responsible.

9. On 20 June 2005 the Diyarbakır Principal Public Prosecutor decided to disjoin the case concerning the MİT officials and to register it separately because the prosecution of MİT officials required the Prime Minister’s permission.

10. On 30 September 2005the Diyarbakır Principal Public Prosecutor decided not to prosecute the MİT officials who had implemented the Diyarbakır Assize Court’s decision. He decided that the MİT officials had merely implemented the court’s decision when intercepting and examining communications and that the implementation of court decisions was required by law and did not constitute a crime. In any event, there was no evidence that the telecommunications companies had given any records to the MİT officials or that they had monitored communications over the Internet. The Public Prosecutor also referred to a decision by the Ankara Principal Public Prosecutor not to prosecute over the same issue (decision no. 2005/35575, 17 June 2005) in relation to a number of other complaints brought against the Diyarbakır Assize Court’s decision.

11. On 25 October 2005 the applicant filed an objection with the Siverek Assize Court against the above decision, alleging that the Diyarbakır Public Prosecutor had failed to carry out an investigation into his complaints concerning an alleged violation of his rights guaranteed by Articles 8 and 13 of the Convention.

12. On 30 November 2005 the Siverek Assize Court dismissed the applicant’s objection, holding that the Principal Public Prosecutor’s decision against prosecution had complied with the legislation since the MİT officials had implemented a court decision and had not committed any offence.

13. On 6 April 2006 the Ministry of Justice decided not to take an action against the public prosecutor and the judge as it found that their acts fell within judicial discretion. The Ministry considered that although the impugned interception decision had been in breach of the national and international legal norms, the aim was to locate the terrorists before they acted and to take the necessary security measures against them. For the Ministry, the decision did not display ‘ill-will’ towards any individual or institution and the complainants had failed to demonstrate that they had been affected by the impugned decision in any way. On an unspecified date the applicant filed an objection against this decision. On 31 October 2007 the Third Division of Ankara Administrative Court dismissed the objection.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Relevant domestic law at the material time

14. The Court refers to Cevat Özel v. Turkey (no. 19602/06, §§ 16-19, 7 June 2016) concerning Article 21 of the Constitution with regard to freedom of communication. The relevant part of Article 125 of the Constitution concerning administrative liability provides as follows:

“All acts and decisions of the administration are subject to judicial review ...

The administration shall be liable to indemnify any damage caused by its own acts and measures.”

15. Section 2 of Law no. 4422 on the Prevention of Profit-Oriented Criminal Organisations, on the conditions and procedure for intercepting telecommunications, reads as follows:

Section 2

“The signals, writings, photographs, images or voice recordings and other kinds of information received or sent through wired, wireless or other electromagnetic systems like telephone, fax and computer or simplex communication used by persons who are suspected of committing the crimes set down in this Law or of being accomplices or of aiding and abetting or harbouring the perpetrators in any way after the crime has been committed, can be intercepted or detected.

Decisions on the interception or detection of communications shall only be rendered if strong indications exist.

A decision on the interception or detection of communications cannot be rendered if the identification or seizure of the perpetrator or the obtaining of evidence is possible by another measure.

The above provisions shall be applied to all records, including but not limited to, the content of communications kept by each private or public communications institution.

A judge shall decide on the interception or detection or examination of records. In urgent situations, a public prosecutor is also authorised in that regard. Measures taken without the decision of a judge shall be submitted to a judge for decision within twenty-four hours. The measure shall be lifted immediately upon the termination of its permitted duration or after a decision by a judge against it.

A decision on the interception or detection of communications may be rendered for a maximum of three months. That duration may be extended a maximum of two times and cannot be longer than three months each time.

If a suspicion is removed during a period of the interception or detection of communications, the measure shall be lifted by a public prosecutor. In such situations, the data obtained by the measure in question shall be destroyed immediately, or at the latest within ten days, under the supervision of the prosecutor and that procedure shall be recorded.

If a public prosecutor or a law-enforcement officer assigned by him/her, asks someone who is employed by a communications institution or corporation, or who is authorised to render such a service, to carry out interception and recording and to install devices for that purpose, that request shall be carried out immediately. The time and date of the beginning and end of the procedure shall be recorded.”

Section 16 of the law provided that the scope of section 2 extended to offences described in the Law on the Fight against Terrorism (Law no. 3713).

16. At the relevant time, Law no. 4422 provided a statutory basis for authorising the interception of communications of people suspected of committing the crimes proscribed by that law. The measures provided for in the law had to be authorised in the course of a criminal investigation by a judge or, in exceptional cases, by a public prosecutor, whose decision had to be submitted to a competent judge for approval.

17. At the material time, the grounds and procedure for the authorisation and implementation of the measures set out in sections 2 to 10 of Law no. 4422 were regulated in the Regulation for the Implementation of Law no. 4422 on the Prevention of Profit-Oriented Criminal Organisations (“the Implementation Regulation”). The relevant parts of the Implementation Regulation read as follows:

Section 9. Points that shall be included in requests and decisions [on interception]

“Requests and decisions on the interception of communications shall include the following points:

a) Where known, the identity of the person whose communications will be monitored or intercepted

...”

Section 10. Scope of the measure

“The monitoring or interception [of communications] shall be authorised in respect of a specific person.

...”

18. Section 4 of Law no. 2937 (Law on Intelligence Services of the State and the National Intelligence Agency which entered into force on 1 January 1984) on the Functions of the National Intelligence Agency provides, in so far as relevant, as follows:

“(1) The functions of the MİT are:

a) To obtain national security intelligence about existing and possible future activities directed against the unity of the nation and the territorial integrity, existence, independence, and security of the Republic of Turkey as well as the other elements which form the constitutional order and national strength of the State and to communicate such intelligence to the President, Prime Minister, Chief of the General Staff, the Secretary General of the National Security Council and related public institutions,

b) To assist and provide for the intelligence-related needs of the President, Prime Minister, Chief of the General Staff, the Secretary General of the National Security Council and related ministers in the course of their duty to prepare and execute plans concerning the national security policy of the State,

c) To advise the Prime Minister and the National Security Council to direct the intelligence activities of State organisations and institutions,

d) To advise State organisations and institutions on technical matters concerning their intelligence and counter-intelligence activities and to assist in the facilitation of coordination amongst them,

e) To provide information and intelligence, which are deemed necessary for the Armed Forces, to the Office of the Chief of the General Staff, in accordance with an agreement,

f) To perform other duties allocated to it by the National Security Council,

g) To conduct counter-intelligence activities.”

B. Legislation concerning 2005 reforms and onwards

19. Law no. 4422 was repealed by Law no. 5320 on the implementation and application of the Code of Criminal Procedure on 1 June 2005. The Implementation Regulation was repealed on 5 May 2007 by Regulation no. 2007/11968, enacted by the Council of Ministers. The relevant provisions of Law no. 4422 and the Implementation Regulation were replaced by provisions in the new Code of Criminal Procedure (“Law no. 5271”) (see Karabeyoğlu v. Turkey, no. 30083/10, §§ 39-45, 7 June 2016).

20. On 23 July 2005 Law no. 5397 was enacted, amending section 6 of Law no. 2937 with a view to providing a legal basis for MİT to carry out preventive secret surveillance measures before the commission of crimes. The explanatory memorandum on Law no. 5397 states, in so far as relevant:

“Private life and the right to freedom of communication, notions protected by the Constitution, shall only be restricted by the State before the commission of a crime under a law which is in accordance with European Union criteria and on the grounds set out in that law.

...

Intelligence is an indispensable tool in the fight against crime and criminals. Intelligence, since it is obtained by means of collecting and storing information, is closely related to private and family life. The interception of telecommunications before crimes are committed is related to the right to freedom of communication. Under this provision of the Constitution, the need to regulate the intelligence services in Turkey by law is compulsory.

...

Since the preventive interception of communications is not regulated in Turkey, the proposed law is aimed at closing that important loophole.

...

On the other hand, activities exercised by the intelligence services are not related to crime, rather they are directed at the systematic and regular collection and evaluation of information, within the powers specified in the codes which established them, to counter threats to the democratic rule of law with a view to maintaining national security.”

21. The explanatory memorandum on section 3 of Law no. 5397, which amended section 6 of Law no. 2937, reads, in so far as relevant:

“...

Furthermore, the amended paragraphs authorise the MİT to carry out the preventive interception of communications. Considering the fact that intelligence is an indispensable tool for the security of the State, and for the purpose of closing the loophole on the preventive interception of communications in accordance with European Union criteria and the fundamental principles enshrined in Article 22 of the Constitution and the Code of Criminal Procedure (Law no. 5271), the interception of communications, including its conditions, duration and the authorities which may carry it out, has been regulated.”

22. Section 6(2) of Law no. 2937, after the amendment at the material time, reads as follows:

“For the purpose of performing the duties set out in section 4 of this Law and in the event of a serious threat against the fundamental values set out in the provisions of Article 2 of the Constitution and the democratic rule of law, a decision by a judge or, in cases where a delay would be detrimental, a written order by the Undersecretary or Deputy Undersecretary of the MİT, will be issued to locate, listen to or record electronic correspondence or examine mobile telephone records with a view to protecting national security, preventing acts of terrorism, espionage and the divulging of state secrets. The written order, given in cases where a delay would be detrimental, shall be submitted to a duty judge within 24 hours. The judge shall make a decision within 24 hours. The measure shall be suspended immediately if the judge does not confirm the written order or the authorisation period ends. In that case, the recordings shall be destroyed within ten days at the latest and a report shall be drawn up in this respect which shall be kept for presentation during further inspections. Those steps shall be taken by the centre which was set up in accordance with paragraph 10 of Provisional Section 7 of Law no. 2559 on the Duties and Powers of the Police. The interception of communications within the context of section 135 of Law no. 5271 of 4 December 2004 on the Code of Criminal Procedure shall also be conducted through this centre.

C. Domestic case-law regarding mass surveillance

23. On 4 June 2008 the Court of Cassation gave a decision (E.2008/874 and K.2008/7160) in a matter concerning similar points of fact and law. It examined a judicial warrant that had authorised the Gendarmerie to carry out the preventive interception of the communications of everyone in Turkey. The interception warrant in that case had been given after the 2005 reforms and had had almost the same wording as the impugned decision in the instant case. The relevant part of the Court of Cassation’s judgment reads as follows:

“... irrespective of the motives behind it, a nationwide authorisation [for the preventive interception of communications] in which every person in Turkey was regarded as a suspect shall not be granted to any institution in Turkey, a democratic state based on the rule of law ...”

THE LAW

I. THE GOVERNMENT’S PRELIMINARY OBJECTIONS

A. Alleged failure to exhaust domestic remedies

24. The Government contended that the applicant had failed to exhaust the domestic remedies available to him, as required by Article 35 § 1 of the Convention. They suggested, in broad terms, that it had been open to the applicant to raise his complaints with the domestic authorities and to bring an action for compensation before the administrative courts in general judicial review proceedings, as provided for in Article 125 of the Constitution, section 12 of the Administrative Procedure Act and section 13 of Law no. 657 on State employees.

25. The Court takes note of the fact that an action for compensation under the provisions referred to by the Government concerns acts and decisions of an administrative nature. For that reason, the Court, in Parlamış v. Turkey ((dec.), no. 74288/01, 13 November 2007), where the interception of the applicant’s telephone communications had been performed without any judicial decision, solely as an administrative act and as such unlawful, held that the applicants should have used the remedy under Article 125 of the Constitution and declared that application inadmissible for non-exhaustion of domestic remedies.

26. However, unlike Parlamış, in the instant case there was a judicial decision that authorised the interception of communications. Hence, the present case is distinguishable from Parlamış. Moreover, the remedy referred to by the Government, namely an administrative action under Article 125 of the Constitution, is not in principle available against a judicial decision since the former only concerns administrative acts and decisions. In those circumstances, the Court considers that the applicant was not required to make use of the remedy indicated by the Government to comply with Article 35 § 1 of the Convention.

27. The Court reiterates in that connection that as regards the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. The availability of a remedy said to exist, including its scope and application, must be clearly set out and confirmed or complemented by practice or case-law (see, mutatis mutandis, Stanev v. Bulgaria [GC], no. 36760/06, § 219, ECHR 2012; and Gherghina v. Romania (dec.) [GC], no. 42219/07, § 88, 9 July 2015).

28. In the present case, the Government did not submit any judicial or administrative decision showing that a person whose telephone or electronic communications had been intercepted had been able to protect his or her rights by using the remedy suggested, that is, where recourse to an administrative court or authority had led to an award of compensation for an interference with his or her private life and correspondence. They likewise failed to provide an explanation as to why they could not submit any such examples.

29. In view of the above, the Court considers that the capacity of the general remedies mentioned by the Government to provide effective preventive and/or compensatory redress in this context has not been established with a sufficient degree of certainty.

30. The Court therefore rejects the Government’s objection concerning non-exhaustion of domestic remedies.

B. Alleged lack of victim status

31. The Government submitted that the applicant lacked victim status as he could not demonstrate that he had been directly affected by the surveillance measures authorised by the Diyarbakır Assize Court. The application should therefore be qualified as “actio popularis” since the applicant had sought a general and abstract review of the court’s decision in the light of the Convention because of a hypothetical possibility of being subjected to surveillance.

32. The applicant reiterated his argument that he had been affected by the secret surveillance measures.

33. The Court considers that the Government’s objection concerning the applicant’s victim status is inextricably linked to its examination of the question of whether there has been an interference with the applicant’s right to respect for his private life and correspondence under Article 8, and therefore to the merits of the case.

34. Accordingly, the Court joins this question to the merits of the complaint.

C. Conclusion

35. The Court finds that the application 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.

II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

36. The applicant complained that the Diyarbakır Assize Court’s decision authorising the interception of his communications had been unlawful and in violation of 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. The parties’ submissions

1. The applicant

37. The applicant complained about the interception of his telephone and electronic communications, which he said had been contrary to Article 8 of the Convention. The applicant alleged that his right to respect for his private life and correspondence, protected by that provision, had been breached by the implementation of the Diyarbakır Assize Court’s decision. He noted that while the purpose of the impugned measure appeared to be the identification and arrest of criminals, the seizure of evidence and the prevention of criminal acts by illegal terrorist organisations with international connections, the authorities had failed to provide any evidence which indicated that he or any other person living in Turkey had committed a crime. The Assize Court’s decision had also not shown that there was any reasonable suspicion that he or any other person would have committed a crime.

38. The applicant maintained that under section 2 of Law no. 4422 a decision to intercept electronic communication could only be given if there was a strong suspicion of a crime. The law also required that court decisions should say which crime was under investigation and provide evidence of a strong suspicion in relation to that crime. Furthermore, after the termination of the measure, the authorities were also required to inform the people concerned that their communications had been intercepted.

39. The applicant had only learned of the measure from a newspaper article. Thus, although the impugned measure had aimed at preventing terrorism, it had been open to abuse and had been free of any judicial control. It was therefore clear that the Assize Court’s decision had also contravened domestic law.

2. The Government

40. The Government submitted that if the Court concluded that there had been an interference with the applicant’s right to respect for his private life and correspondence, which they disputed, then the alleged interference had been in accordance with the law and necessary in a democratic society for the protection of national security and the prevention of disorder or crime. Additionally, the alleged “legislative interference” had been justified in the interests of public safety and the protection of the rights and freedoms of others, as set forth in Article 8 § 2 of the Convention.

41. The Government argued that in its previous judgments the Court had left a wide margin of appreciation to national authorities to decide on the best policy for the investigation of terrorist crimes. It had also highlighted the responsibility for an elected government in a democratic society to protect its citizens and institutions against threats posed by terrorism and had referred to the specific problems involved in the arrest and detention of persons suspected of terrorist offences.

42. In that connection, Law no. 4422 had aimed at the protection of democratic institutions in Turkey. Section 16 of the law had explicitly extended the scope of the list of crimes under section 2 to cover offences described in the Law on the Fight Against Terrorism (Law no. 3713 of 1991). Thus, communication interception measures, which were regulated under section 2 of Law no. 4422, had thereby applied to terrorism-related offences.

43. The Government concluded therefore by saying that the Diyarbakır Assize Court’s decision to allow the security forces to intercept telephone and other electronic communications had been in accordance with the domestic law then in force and had been justified under Article 8 § 2 of the Convention.

B. The Court’s assessment

1. General principles

44. With regard to the general principles related to the interception of communications, the Court refers to its judgment in Roman Zakharov v. Russia ([GC], no. 47143/06, §§ 227-235, ECHR 2015), and references therein).

2. Application of those principles to the present case

(a) The applicant’s victim status and the existence of an “interference”

45. In Roman Zakharov (cited above), the Court clarified the conditions for a claim by an applicant that he or she was the victim of a violation occasioned by the mere existence of secret surveillance measures, or legislation permitting such measures (§§ 170-172). Firstly, the Court will take into account the scope of the legislation permitting the secret surveillance measures by examining whether the applicant could possibly be affected by it, either because he or she belongs to a group targeted by the contested legislation or because the legislation directly affects all users of communication services by instituting a system where any person can have his or her communications intercepted. Secondly, the Court will take into account the availability of remedies at the national level and will adjust the degree of scrutiny depending on the effectiveness of such remedies (see, for a recent example, Szabó and Vissy v. Hungary, no. 37138/14, §§ 37-40, 12 January 2016).

46. In the present case, the Court observes at the outset that the applicant did not complain in general about the existence of legislation allowing secret surveillance measures. The basis of the applicant’s complaint was the specific decision by the Diyarbakır Assize Court to allow the interception of the communications of anyone in Turkey. Furthermore, for the reasons set out above (see paragraphs 24-30), the Turkish law in force at the material time did not provide for effective remedies for a person who suspected that he or she had been subjected to secret surveillance measures outside criminal proceedings as a result of domestic court decisions authorising such measures.

47. In view of the above, the applicant can claim to be a victim of the contested surveillance measures within the meaning of Article 34 of the Convention. The Government’s objection concerning the applicant’s lack of victim status must therefore be dismissed.

48. Accordingly, the Diyarbakır Assize Court’s decision, which authorised MİT agents to intercept and examine all telecommunications between 8 April 2005 and 30 May 2005, interfered with the applicant’s right to respect for his private life and correspondence.

(b) Justification for the interference

49. The cardinal issue that arises is whether the interference so found is justifiable under paragraph 2 of Article 8. That paragraph, since it provides for an exception to a right guaranteed by the Convention, is to be interpreted narrowly. While the Court recognises that intelligence services may legitimately exist in a democratic society, it reiterates that the powers of secret surveillance of citizens are tolerable under the Convention only in so far as strictly necessary for safeguarding democratic institutions (see Rotaru v. Romania [GC], no. 28341/95, § 47, ECHR 2000-V).

50. The Court notes that under its well-established case-law the wording “in accordance with the law” requires the impugned measure both to have some basis in domestic law and to be compatible with the rule of law, which is expressly mentioned in the Preamble to the Convention and inherent in the object and purpose of Article 8. The law must meet quality requirements: it must be accessible to the person concerned and foreseeable as to its effects (see, among many other authorities, Rotaru, cited above, § 52 and Roman Zakharov, cited above, § 228, and).

51. Turning to the facts of the present case, the Court reiterates that the basis of the applicant’s complaint is related to the Diyarbakır Assize Court’s specific decision giving permission for the interception of the communications of everyone in Turkey.

52. The Court notes in that respect that the Government argued that the measure in question had been based on Law no. 4422. The applicant contested that argument by submitting that the impugned decision had been manifestly contrary to the conditions set out in the provisions of Law no. 4422 and the principles developed in the Court’s case-law.

53. In cases arising from individual applications, the Court must as a rule focus its attention not on the law as such but on the manner of its application in the particular circumstances (see, among other authorities, Goranova-Karaeneva v. Bulgaria, no. 12739/05, § 48, 8 March 2011). In that connection, the Court reiterates that, whilst it is true that no interference can be considered to be “in accordance with law” unless the decision occasioning it complies with the relevant domestic law, the logic of the system of safeguards established by the Convention sets limits on the scope of the power of review exercisable by the Court in such a case. It is in the first place for the national authorities, notably the courts, to interpret and apply the domestic law: the national authorities are, in the nature of things, particularly qualified to settle issues arising in this connection. The Court cannot question the national courts’ interpretation, except in the event of flagrant non-observance or arbitrariness in the application of the domestic legislation in question (see, mutatis mutandis, Weber and Saravia v. Germany (dec.), no. 54934/00, § 90, ECHR 2006-XI; Anheuser Busch Inc. v. Portugal [GC], no. 73049/01, § 83, ECHR 2007-I; Goranova-Karaeneva, cited above, § 46; and Lachowski v. Poland (dec.), no. 9208/05, 6 May 2014).

54. In the light of those considerations, the Court has to examine whether the impugned decision of the Sixth Division of the Diyarbakır Assize Court complied with the conditions set forth in Law no. 4422. That assessment is necessary in order to determine whether Law no. 4422 could be relied upon as a legal basis in the present case.

55. In that connection, the Court first observes that Law no. 4422 required that an interception authorisation had to, where the authorities had such information, specify the persons who are suspected of committing crimes listed in that law. The Court further observes that under Section 10 of the Regulation for the Implementation of Law No. 4422, the monitoring or interception of communications had to be authorised in respect of a specific person (see §§ 15-17 above). It appears therefore that the decision had to include at least one specific name or elements allowing for the identification of a person in order to meet the above-mentioned requirement.

56. The Court has already examined similar requirements in the past and found that such an identification could be made by names, addresses, telephone numbers or other relevant information (see Association for European Integration and Human Rights and Ekimdzhiev v. Bulgaria, no. 62540/00, § 80, 28 June 2007; Liberty and Others v. the United Kingdom, no. 58243/00, §§ 64 and 65 1 July 2008; Klass and Others v. Germany, 6 September 1978, § 51, Series A no. 28; Kennedy v. the United Kingdom, no. 26839/05, § 160, 18 May 2010; and see Roman Zakharov, § 264, cited above).

57. The Court points out once again that the Diyarbakır Assize Court sought to authorise the interception of the communications of everyone in the Republic of Turkey. The decision therefore mentioned no specific names or any addresses, telephone numbers or other relevant information. In other words, the impugned decision was not limited to people suspected of the criminal offences listed in Law no. 4422.

58. Secondly, the Court notes that section 2 of Law no. 4422 required that authorisation for interception be given only when there were strong indications of a crime set out in that provision. However, the impugned decision did not contain any findings or any other indicators in that regard. Rather, it simply made reference to the criminal offences or activities listed in Law no. 4422 and did not specify which factors had been taken into account for the authorities’ determining that there were strong indications those crimes had been committed, which is an indispensable element for granting an interception authorisation.

59. Thirdly, the Court notes that Law no. 4422 provided that interception take place only when the identification or arrest of a perpetrator and the collection of evidence was not possible by any another means. In other words, the interception authorisation had to show that other methods of collecting evidence were not possible. However, the Court observes that the impugned decision did not include any explanation as to why and in what way more lenient measures would have been ineffective for the aims sought to be achieved. No actual details were provided based on the specific facts of the case and the particular circumstances indicating a probable cause to believe that the aims in question could not be achieved by other, less intrusive, means (see Dragojević v. Croatia, no. 68955/11, § 95, 15 January 2015).

60. Having regard to the above considerations, the Court is of the view that the impugned decision did not satisfy the very basic requirements laid down by Law no. 4422. It therefore rejects the Government’s argument that Law no. 4422 constituted a legal basis for the Diyarbakır Assize Court’s decision.

61. Notwithstanding the above findings, the Court will further examine whether the MİT had the authority to intercept telephone communications at the material time.

62. On that point, the Court starts by noting that Turkish law distinguishes two types of interception of electronic communications. The first is preventive interception, which is conducted before the commission of a crime and which is now regulated by section 6 of Law no. 2937. The second is the interception of electronic communications during an investigation or prosecution conducted in relation to a crime, which is regulated by Article 135 of the Code of Criminal Procedure, although at the time of the impugned decision it was governed by Law no. 4422.

63. That said, the Court observes that neither Law no. 4422 nor any other legislation regulated the MİT when it came to the preventive interception of telephone communications at the material time.

64. On the basis of the foregoing, the Court concludes that the interception order in the instant case was not “in accordance with the law” within the meaning of Article 8 § 2 of the Convention.

65. Consequently, there has been a violation of Article 8 of the Convention.

66. That conclusion removes the need for the Court to examine further the content of the other guarantees required by Article 8 § 2 (Malone v. the United Kingdom, 2 August 1984, § 82, Series A no. 82)

III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION

67. The applicant also complained that he had been denied an effective remedy as a result of the national authorities’ failure to carry out an investigation into his Article 8 complaints. He relied on Article 13 of the Convention, which reads as follows:

“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.”

68. The Government contested that argument.

69. It is to be reiterated that Article 13 of the Convention guarantees an “effective remedy before a national authority” to everyone who claims that his rights and freedoms under the Convention have been violated (see Klass and Others, cited above, § 64). However, Article 13 requires a remedy in domestic law only in respect of an alleged grievance which is an arguable one in terms of the Convention (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131). Thus, the effect of this provision is to require the existence of an effective remedy to deal with the substance of an “arguable complaint” and to grant appropriate relief (see Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000-XI).

70. As the Court concluded above that there has been a violation of Article 8 of the Convention, there is no doubt that the complaint relating to that provision is arguable for the purposes of Article 13. The Court therefore finds that this complaint must be declared admissible.

71. The Court recalls its findings in respect of the preliminary objection filed by the Government (see paragraphs §§ 24-30), in particular the lack of any decision or judgment demonstrating the practical effectiveness of the remedies it suggested to allow people subjected, or suspecting that they have been subjected, to the interception of their telephone or electronic communications to protect their rights. It thus finds that the applicant did not have effective remedies at the material time for his Convention complaints.

72. There has, therefore, been a violation of Article 13 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

73. 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

74. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage.

75. The Government considered that the applicant’s claims were unsubstantiated and excessive.

76. Having regard to the circumstances of this case, the Court considers that the finding of a violation constitutes sufficient just satisfaction for any non-pecuniary damage caused to the applicant (see Roman Zakharov, § 312, cited above).

B. Costs and expenses

77. The applicant claimed EUR 4,199 for costs and expenses incurred before the Court. In support of his claims, the applicant submitted a document showing that the lawyer spent seventeen hours on his case. The sums were calculated in accordance with the fee scales recommended by the Diyarbakır Bar Association.

78. The Government contested the claim and maintained that neither the contractual relationship between the applicant and his legal representative nor the tariffs issued by Bar associations could be taken as a basis for the legal fees in the case.

79. 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 are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 1,200 covering costs under all heads.

C. Default interest

80. The Court considers it appropriate that the default interest rate 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,

1. Joins the Government’s objection as to the victim status of the applicant to the merits of the complaint under Article 8 of the Convention and dismisses it;

2. Declares the application admissible;

3. Holds that there has been a violation of Article 8 of the Convention;

4. Holds that there has been a violation of Article 13 of the Convention;

5. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant;

6. 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 amount, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 1,200 (one thousand two 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 amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

7. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 18 July 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Stanley Naismith Robert Spano
Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> MUSTAFA SEZGIN TANRIKULU v. TURKEY - 27473/06 (Judgment : Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies) Violation of Article 8 ...) [2017] ECHR 669 (18 July 2017) URL: http://www.bailii.org/eu/cases/ECHR/2017/669.html Cite as: ECLI:CE:ECHR:2017:0718JUD002747306, [2017] ECHR 669, CE:ECHR:2017:0718JUD002747306