Resolution CM/ ResDH ( 2013) 252 Aydemir against Turkey

Execution of the judgment of the European Court of Human Rights

Application No.

Case

Judgment of

Final on

17811/04

AYDEMIR

24/05/2011

24/08/2011

(Adopted by the Committee of Ministers on 5 December 2013

at the 1186th meeting of the Ministers ’ Deputies)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violation established;

Recalling the respondent State ’ s obligation, under Article 46, paragraph 1, of the Convention, to abide by all final judgments in cases to which it has been a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2012)743 );

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

Execution of the European Court of Human Rights

Judgment in the case of Aydem ı r / Turkey (17811/04) dated 24 May 2011

ACTION REPORT

A. FACTS

On 13 March 2001, a search warrant was issued in respect of forty three houses situated near the Aydın Prison. The searches were intended to prevent any assistance being provided to escaping prisoners via a tunnel. An additional search warrant was issued in respect of six addresses including the applicants ’ house. The applicants indicated that the searches had not been conducted in accordance with the domestic law on the ground that they were conducted in the absence of a judge or another official prescribed by law. Even the applicants themselves had not had the opportunity to see the content of the search warrant. According to the applicants, the search warrant had been vaguely worded and was issued without solid evidence required by the measure in dispute. Therefore, according to the applicants, there was a violation of their right to respect for their home set out in Article 8 of the European Convention of Human Rights (ECHR).

B. CONTENT OF THE JUDGMENT

The Court found that there had been a violation of Article 8 of the ECHR. In reaching this conclusion the Court held that the search of the applicants ’ home had not been ordered in the context of a criminal investigation or criminal proceedings against one of the family. It had not been established, or even alleged, that the applicants had been suspected of any offence. The search conducted at the applicants ’ home was in fact part of a massive police operation, systematically affecting every home located in the immediate vicinity of the prison.

The Court further noted that the search warrant had been vaguely worded. It provided no information on the reason for the measure or the objects to be sought, and thus granted the police officers wide powers. Yet a search warrant was required to contain a minimum of information allowing for review of whet her the officers who executed it had respected the warrant ’ s scope. The search had been conducted in the absence of a judge or of a local councillor, in violation of Turkish law. Finally the Court noted that the prosecutor had merely gathered statements from the police officers, and accepted them without reservation. He had not submitted this question to further exanimation, which would have indicated a genuine willingness to establish the facts. Nor had the criminal proceedings done so.

C. INDIVIDUAL MEASURES:

Just satisfaction

The just satisfaction amount awarded by the Court has been paid to the applicants in due time and the documents indicating payment have been submitted to the Department of the Execution of Judgments. There is no other individual measure to be taken in the present judgment.

D. GENERAL MEASURES:

1. Translation and publication of the judgment:

The judgment of the Court in the case of Aydem ı r was translated into Turkish and published on the website of the Human Rights Department of the Ministry of Justice. This judgment is available at http://www.inhak.adalet.gov.tr/ara/karar/aydemir.pdf .

2. The circulation of the judgment to the relevant authorities:

The translated judgment was circulated to the relevant authorities such as the Human Rights Inquiry Committee of the Turkish Grand National Assembly, the Constitutional Court, the Court of Cassation, the Ministry of Interior, the Ministry of Finance and the court that rendered the judgment.

3. Legislative arrangements:

The former Code of Criminal Procedure (Law No. 1412) which was in force at the time of the incident was abolished on 1 June 2005. On the same date, the new Code of Criminal Procedure (CCP) (Law No. 5271) came into force, which sets out new standards for the protective measures including the search procedure.

The provisions of the abolished Code of Criminal Procedure regarding the search procedure were regulated in Articles 94 to 104. In these articles, procedural requirements in issuing a search warrant, persons to be present in the course of a search, the procedures to be followed during a search conducted at midnight were set out. However, the relevant articles did not include the points stated in the Court ’ s Aydem ı r judgment.

In the current CCP (Law No. 5271), the search measure is regulated in a substantially detailed manner as the other protective measures. Article 119 of the CCP provides who may issue a search warrant and the elements that need to be included in a search warrant.

The search warrant or order shall clearly include;

a) justifying reasons;

b) the person with respect to whom the search shall be conducted, the address of the dwelling or the place to be searched, or the material that is to be searched;

c) the validity period.

Furthermore, in the Regulations on Judicial and Preventive Searches which was published in the Official Gazette and entered into force on the same date as the CCP, provisions on search measure is regulated in a more detailed manner than in the CCP. Thus, as also stated in the Court ’ s judgment, a control mechanism is established allowing for the authorities to verify whether there has been compliance with the details indicated in the search warrant.

According to the Regulation, a search warrant may be issued for a person, only on condition that there is a reasonable doubt. Taking the right to respect for private and family life into consideration, the concept of reasonable doubt has been subjected to strict conditions.

According to the Article 6 of the Regulation.

"Reasonable doubt is the general doubt against substantial facts with respect to flow of life. Reasonable doubt is determined by taking all the circumstances into account such as date and place of the search, conduct of the related person and others accompanying him, and qualification of the material searched by the authorities.

Reasonable doubt must be based on incriminating information and other indications supporting the complaint.

Doubt must be based on substantial facts.

Substantial facts, which require envisaging that a certain thing will be found after the search and a certain person will be arrested, must exist."

It is the judge who has the power to decide on a judicial search, under Article 7 of the above mentioned Regulation. Furthermore, when police officers claim to have a search warrant issued, they must apply to the public prosecutor after preparing a detailed and justified report indicating the causes of the reasonable doubt.

Article 12 of the Regulation sets out the requirements to be submitted after the search, upon the request of the person in respect of whom a search warrant has been issued. This Article reads as follows:

"At the end of the search conducted according to the Article 7, upon the request of the person who has been searched document or documents which include the following information shall be given to him/her;

a) whether the search has been conducted

1) for the reason that the person is a suspect or accused, and there is reasonable suspicion regarding that she/he might he caught or that evidence of crime might be obtained,

2) for the aim that the suspect or accused to be caught or that evidence of crime to be obtained,

b) nature of the crime subject to investigation or prosecution in the case that the suspect or accused in respect of whom there is reasonable suspicion that she/he might be caught or evidence of crime might be obtained through search of the person herself/himself, properties, house, workplace or other places belonging to her/him,

c) list of material that is confiscated and taken under protection,

d) the case in which nothing has been obtained to prove the suspicion to be right,

e) opinion and submissions of the person who has been searched regarding the ownership of the confiscated material,

An important point required to be mentioned here is that what will be about the position of the public officials conducting the search unlawfully. According to the Article 120 of the TCC (Turkish Criminal Code) (Law No. 5237) that came into force after the Court judgment in the case of Aydem ı r v. Turkey,

"A public official who performs an unlawful search on a person or on his personal belongings, shall be sentenced to imprisonment for a term of three months to one year."

According to this article, police officers will not be able to conduct a search, unless there is a duly regulated search warrant. Their contrary behaviour will be investigated by prosecutors notwithstanding an existing complaint, and be subject to criminal proceedings.

It is clearly seen that, the provisions of the CC P (Law No. 5237) and the Regulation on Judicial and Preventive Search are now fully in line with the standards put forward in the Court ’ s case law, and in the manner to protect individuals against arbitrary intervention of police officers.

4. Training and Awareness Raising Activities:

On 15-17 November 2011, a High Level Conference followed by a two-day workshop was organised by the General Directorate of International Law and Foreign Affairs. In this Conference, 6 working groups were established in the context of articles of the ECHR in order to identify the problems and possible solutions in the light of the Court ’ s case-law. In one of the working groups in which the legislation concerning right to respect for private and family life set out in Article 8 of the ECHR and the problems encountered in practice were discussed, legislative and practical aspects of the problem were elaborated. In the working group which consisted of representatives of the Court of Cassation, the Council of State, various departments of the Ministry of Justice and representatives of other relevant institutions, proposed solutions in line with the Court ’ s jurisprudence with respect to the search measure were submitted. It was concluded that the problem had been originated from the practice following new legislative arrangements and, therefore, that training activities raising awareness would need to be given priority.

In this context, the High Council of Judges and Prosecutors (HCJP) and the Justi ce Academy held a symposium on 1 2 March 2012, on the application of the protective measures and the jurisprudence of the Court, for the first time following the establi shment of the tribunals authoris ed under the Article 250 of the CCP, with the participation of judges and prosecutors taking office in these tribunals. Between 13 and 22 March 2012, judges and prosecutors taking office in these courts participated in vocational training in which the subjects of the symposium were deliberated in detail.

The symposium started with the speeches of the President of the Justice Academy, the Vice President of the HCJP and the Minister of Justice, and ended with two sessions themed "the Practices of the Search Measures in the light of the Practices of the European Court of Human Rights" and "Freedom of Expression and Responsibility of the Media in the light of the Judgments of the European Court of Human Rights". Outstanding academicians of the country, representatives of supreme judicial authorities, a journalist, a judge hearing relevant cases in Italy and a Head of Turkish Division of the Court participated and made presentations in the seminar which lasted one day.

Moreover , common Project with the Council of Europe on "the Improvement of the Criminal justice System" aims to improve the Criminal Justice System of Turkey and to improve the implementation of human rights standards in practice.

During the course of the Project, study visits will be made to pilot courts in respect of protective measures which also include the search procedure. Training curriculum will be prepared for the Justice Acad emy and seminars will be organis ed.

E. Execution of the Judgment:

As stated above, owing to the fact that the individual and general measures necessary for the execution of the judgment in question are taken, i t is considered that the Turkish Government has fulfilled its obligations set out in the Aydem ı r judgment. Therefore the Committee of Ministers is invited to close its examination.