SECOND SECTION

DECISION

Application no . 52454/08 Oral TALÄ° and Haydar YILDIZ against Turkey

The European Court of Human Rights ( Second Section ), sitting on 15 April 2014 as a Committee composed of:

András Sajó , President, Helen Keller , Egidijus Kūris , judges , and Abel Campos , Deputy S ection Registrar ,

Having regard to the above application lodged on 13 October 2008 ,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Oral Tali and Mr Haydar Y ı ld ı z , are Turkish nationals, who were born in 1979 and 1976 respectively and live in Eskiş ehir and Ankara . They were represented before the Court by Mr C. Bülbül , a lawyer practising in Eskişehir .

A. The circumstances of the case

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

The applicants worked as specialized sergeants at the Turkish Armed Forces. At the time of the events in question, they were stationed in the Şırnak province at the Iraqi border. Their duty station was a check point on the road between Cizre and the border crossing point.

On an unspecified date, public authorities received a tip-off about an illegal organization. The Şırnak Public Prosecutor ’ s Office initiated a criminal investigation against eleven suspects including the applicants. The illegal organization was allegedly involved in oil smuggling and transfer of the oil products to other cities for illegal sale. Military members of the organization were allegedly giving priority transit right to some trucks for crossing the Turkish-Iraqi border without any delay and in return, they were receiving bribe from drivers.

On an unspecified date, investigating authorities sought and obtained permission from the Şırnak Magistrates ’ Court (in criminal matters) for the interception of the telephone conversations of the eleven suspects concerned.

On 26 December 2005 the Şırnak Magistrates ’ Court (in criminal matters) classified the case-file as confidential.

On 31 December 2005 the Şırnak Magistrates ’ Court (in criminal matters) ordered the applicants ’ detention on remand. The judge who decided to place the applicants in detention on remand had also taken part in the trial . T he applicants did not attempt to disqualify that judge on grounds of impartiality pursuant to Article 23 of the Criminal Procedure Code.

On 21 March 2006 the Şırnak Chief Public Prosecutor ’ s Office filed an indictment with the Şırnak Assize Court (“the court”) charging the applicants with bribery, forming an organized criminal group to commit offences and smuggling.

On 5 June 2007 the Şırnak Assize Court found the applicants guilty of bribery and sentenced them to six years and three months ’ imprisonment. In convicting the applicants, the court relied on the evasive statements of the applicants, records of telephone conversations with other accused persons , witnesses ’ statements and two expert reports. The court acquitted the applicants for lack of evidence in respect of other charges stated in the indictment .

On 29 May 2008 the Court of Cassation upheld this judgment.

B. Relevant domestic law and practice

1. T he Constitution

Article 22 of the Constitution, as amended on 17 October 2001, reads:

“Everyone has the rig ht to freedom of communication.

Secrecy of communication is fundamental.

Unless there exists a decision duly passed by a judge on one or several of the grounds of national security, public order, prevention of crime, protection of public health and morals, or protection of the rights and freedoms of others, or unless there exists a wri tten order of an agency authoriz ed by law in cases where delay is prejudicial, again on the above-mentioned grounds, communication shall not be impeded nor its secrecy violat ed. The decision of the authoriz ed agency shall be submitted for the approval of the judg e with jurisdiction within 24 hours. The judge shall announce his decision within 48 hours from the time of seizure; otherwise, the seizure order shall automatically be lifted.

Public establishments or institutions where exceptions to the above may be applied are defined by law.”

2. Law on Combating Organized Crime (Law no. 4422 of 1 August 1999, which was repealed by Law no. 5320 of 31 March 2005)

Section 2 of Law no. 4422 permits the interception of the communications of persons suspected of having been involved in the offences enumerated under section 5 of this Law.

Decisions concerning the interception of communication shall only be given in cases where there is a strong indication of a crime. If it is possible to obtain evidence by other means, communication shall not be intercepted.

Section 13 provides that permission to intercept communication can only be granted for a maximum period of three months. This period may be extended twice for periods of three months. In the course of interception, if suspicion of the commission of a crime enumerated under this Law comes to an end, the measure shall be terminated by a written order of the public prosecutor.

Under section 21 decisions concerning the interception of communication may only be given by a judge at the written request of a public prosecutor. In urgent cases, public prosecutors are also authorized to grant permission to intercept communication. However, the public prosecutor ’ s decision must be reviewed by a judge within twenty ‑ four hours. Should the judge decide otherwise, interception must cease.

3. The new Code o f Criminal Procedure (Law no. 5271 of 25 March 2005)

The relevant paragraphs of Article 135 of the Code of Criminal Procedure read:

Article 135

“(1) The judge or, in cases where a delay would be detrimental , the public prosecutor, may decide to locate, listen to or record the electronic correspondence or evaluate the mobile phone records of a suspect or accused if , during an investigation or prosecution conducted in relation to a crime , there is strong suspicion that the crime has been committed and there is no other means of obtain ing evidence. The public prosecutor shall submit his decision immediately to the judge for his approval and the judge shall make a decision within 24 hours. Upon the expir y of this period or if the judge withdraws approval , the measure shall be lifted by the public prosecutor immediately.

(2) The suspect ’ s or accused ’ s communication with individuals who are entitled to refrain from acting as a witness shall not be recorded. In cases where this circumstance has been revealed after the recording, the recorded material shall be destroyed immediately.

(3) The decision to be rendered in accordance with the provisions of paragraph ( 1 ) shall state the type of the crime attributed , the identity of the individual upon whom the measure is to be applied, the means of communication, the telephone number, or the code that makes it possible to identify the connection of the communication, the nature of the measure, its scope and its duration. The decision to apply the measure may be valid for a maximum of three months; this period may be extended on c e. However, for crimes committed within a crim inal organi z ation, the judge can decide to extend the period several times, each time for no longer than one month, if deemed necessary.

...

(5) Decisions rendered and actions taken in accordance with the provisions of this article shall be kept confidential while the measure is being implemented .

(6) The provisions contained in this article relat ing to the monitoring , recording and evaluati on of mobile phone records shall only be applicable to the crimes listed below:

a) The following crimes in the Turkish Criminal Code;

...

8. Forming a criminal organization (Art icle 220, exc luding paragraphs 2, 7 and 8),

...

11. Bribery (Art icle 252) ”

COMPLAINTS

The applicants, without relying on any Article of the Convention, complained that the decision to place them in detention on remand had not been justified and had lacked reasoning.

The applicants alleged that they have been denied a fair hearing in breach of Article 6 of the Convention. In particular, they complained that domestic courts had erred in the assessment of the facts and application of the national law. Under the same provision, the applicants contended that the same judge, who ordered their detention on remand, had also taken part in the trial. They further alleged in a general manner that the national courts ’ decisions con tained contradictory arguments.

The applicant lastly asserted that their conviction was based on unlawful evidence, namely, their telephone conversations which were intercepted wit hout the permission of a judge.

They contended under Article 8 of the Convention that the interception of their telephone conversations had violated their right to respect for private life.

THE LAW

1. The applicants complained in substance that the decision to place them in detention on remand had violated Article 5 § 1 of the Convention.

The Court recalls that pursuant to Article 35 § 1 of the Convention, the Court may only deal with the matter within a period of six months from the date on which the final decision was taken. When the acts of an authority are not open to any effective remedy, the six-month period runs from the date on which the act took place.

The Court observes that the applicants ’ detention on remand continued until the Assize Court ’ s final judgment of 5 June 2007. Following that date, the applicants were detained “after conviction by a competent court”. However, the application was lodged with the Court on 13 October 2008, which is more than six months from the end of the detention period complained of.

It follows that this complaint is introduced out of time and should be rejected for non-compliance with the six-month rule.

2. The applicants further complain ed under Article 6 of the Convention that they had not receive d a fair trial by an impartial tribunal on account of the presence of the judge in trial proceedings who had previously ordered their detention on remand.

The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges those seeking to bring a case against the State before an international judicial organ to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (see Assenov and Others v. Bulgaria , 28 October 1998, §85, Reports of Judgments and Decisions 1998-VIII).

The Court observes that the applicants never attempted to disqualify that judge on grounds of impartiality pursuant to Article 23 of the Criminal Procedure Code.

It follows that this part of the applic ation must be rejected for non ‑ exhaustion of domestic remedies within the meaning of Article 35 §§ 1 and 4 of the Convention.

3. The applicants alleged that they had been denied a fair hearing in breach of Article 6 of the Convention and that domestic courts had erred in the assessment of the facts and in application of the domestic law .

The Court recalls that it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The admissibility of evidence and related questions are primarily matters for regulation by national law and it is, in principle, for national courts to assess the evidence before them. The Court ’ s task is not to examine whether the applicant was guilty or innocent of the offences for which he was convicted, but to ascertain whether the proceedings, as a whole, including the way in which the evidence was taken, were fair (see Schenk v. Switzerland , 12 July 1988, § 46 , Series A no. 140 , and García Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999 ‑ I).

In the instant case, the Court notes that the applicants had the benefit of adversarial proceedings. The first-instance court relied on the evasive statements of the applicants, records of telephone conversations with other accused persons, witnesses ’ statements and two expert reports. The Court finds no indication that the national courts acted arbitrarily.

Therefore, this complaint should be rejected for being manifestly ill ‑ founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

4. The applicants contended that their conviction was based on telephone conversations intercepted wi thout the permission of a judge. Invoking Articles 6 and 8 of the Convention, they alleged that the interception of their telephone conversations had violated their right to a fair trial and their right to respect for private life.

The Court observes that the investigating authorities sought permission from the competent criminal court, the Şırnak Magistrates ’ Court (in criminal matters) , which gave permission to police authorities for the interception of the telephone conversations of eleven suspects including the applicants. Only conversations made with mobile numbers specified in the court decisions were recorded.

Although interception of the applicants ’ communications was an interference with their rights under the Convention, such interference was in accordance with the law and proportionate to the legitimate aim of preventing crime. Furthermore, as the Court stated above, the applicants had the benefit of adversarial proceedings.

It follows that this complaint should also be rejected for being manifestly ill ‑ founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Abel Campos András Sajó              Deputy Registrar President