THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 70845/01 by Taner KILIÇ against Turkey

The European Court of Human Rights (Third Section), sitting on 4 December 2003 as a Chamber composed of:

Mr G. Ress , President , Mr I. Cabral Barreto , Mr L. Caflisch , Mr P. Kūris , Mr R. Türmen , Mr K. Traja , Mrs A. Gyulumyan, judges , and Mr V. B erger, Section Registrar ,

Having regard to the above application lodged on 5 January 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Taner Kılıç, is a Turkish national, who was born in 1969 and resides in Izmir. He is a lawyer and a member of the board of the Izmir Branch of the Organisation of Human Rights for Oppressed People (Mazlumder). He is represented before the Court by Orhan Kemal Cengiz, a lawyer practising in Izmir.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 16 June 1999 a judge at the Ankara State Security Court issued a warrant authorising the search of the head office of the Mazlumder association and its branches in order to obtain evidence of crimes committed by the association against the “integrity of the country and the secular regime”.

On 18 June 1999 the Public Prosecutor at the Ankara State Security Court requested the Ministry of Interior to extend the scope of the search warrant pursuant to Article 86 and the following articles of the Code of Criminal Procedure concerning search and seizure so as to include the homes of the members of the Mazlumder association.

On 19 June 1999 the applicant’s house and office were searched simultaneously. The applicant states that four videotapes were taken from his home and various files and documents were photocopied at his office.

On 23 November 1999 the applicant submitted an official complaint to the Ankara Public Prosecutor against the Public Prosecutor at the State Security Court, the under-secretary at the Ministry of Interior and the police officers who carried out the search. The complaint alleged an abuse of power.

On 30 June 2000 the Directorate of Criminal Affairs attached to the Ministry of Justice (Adalet Bakanlığı Ceza İşleri Genel Müdürlüğü) rejected the applicant’s request for criminal proceedings to be brought against the public prosecutor.

On 7 February 2000 the Principal Prosecutor at the Court of Cassation decided that there was no need to act on the petition charging the under-secretary at the Ministry of Interior with abuse of power. The Court of Cassation ruled that the under-secretary had only assisted the judicial powers in accordance with the law.

On 28 February 2000 the applicant objected to the decision of the Principal Public Prosecutor at the Court of Cassation. The applicant complained that the decision of the Public Prosecutor at the Ankara State Security Court to include the search of the homes and offices of the General Directors and members of the Board of Directors had been too broadly interpreted by the under-secretary so as to include the Board members of the Branches.

On 20 April 2000 the Investigation Board of the Ministry of Interior issued a non-prosecution decision in respect of the under-secretary at the Ministry of Interior. The Investigation Board stated that the decision to search the houses and the offices of the Board members of the Branches was in accordance with the decision taken by the prosecution. The applicant’s claim that the search was illegal was therefore unfounded.

On 2 June 2000 the applicant appealed against the decision of the Investigation Board of the Ministry of Interior to the Supreme Administrative Court.

On 12 June 2000 the applicant applied to the Public Prosecutor at the State Security Court, requesting the return of his videotapes.

On 19 September 2000 the Supreme Administrative Court held that the decision not to initiate criminal proceedings against the Ministry of Interior was not contrary to law. The court dismissed the applicant’s objection.

On 4 March 2003 the Public Prosecutor at the State Security Court gave a decision of non-prosecution in respect of the General Secretary of the Association. In his decision the Prosecutor stated that the materials seized during the search did not reveal any indication of criminal activity. However he concluded that the materials seized should be considered as evidence and be withheld.

B. Relevant domestic law

An overview of the relevant domestic law may be found in previous decisions in other cases, in particular see Baykal and BektaÅŸ v. Turkey (dec.), no. 36764/97, 18 April 2002 , and Temel v. Turkey (dec), no.37047/97, 24 September 2002.

COMPLAINTS

The applicant complains under Article 6 of the Convention that his right to a fair trial was violated due to the fact that the original search warrant was issued by a military judge.

The applicant complains under Article 8 of the Convention on account of the search carried out on his house and office.

The applicant complains under Article 1 Protocol No. 1 on account of the seizure and confiscation of his videotapes.

The applicant further complains under Article 13 of the Convention that no impartial and independent investigation was conducted into his allegations and that he could not obtain redress for his complaints.

THE LAW

1. The applicant complains under Article 8 of the Convention on account of the search carried out on his house and office.

The applicant complains under Article 1 Protocol No. 1 on account of the seizure and confiscation of his videotapes.

The applicant further complains under Article 13 of the Convention that no impartial and independent investigation was conducted into his allegations and that he could not obtain redress for his complaints under Articles 1 Protocol No. 1 and 8 of the Convention.

The Court considers that it cannot on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of this to the respondent Government.

2. The applicant complains under Articles 6 of the Convention that his right to a fair trial was violated due to the fact that the original search warrant was issued by a military judge.

The Court points out that the applicant was not “charged with a criminal offence”. In this respect, the Court considers that the applicant’s complaint under Article 6 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention and must be rejected  under Article 34 § 4 thereof.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning Articles 1 of Protocol No. 1 and 8 and 13 of the Convention;

Declares the remainder of the application inadmissible.

Vincent Berger Georg Ress Registrar President