Resolution CM/ ResDH ( 2013) 253 H.M. against Turkey

Execution of the judgment of the European Court of Human Rights

Application No.

Case

Judgment of

Final on

34494/97

H.M.

08/08/2006

08/11/2006

(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(2013)1083 );

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 H.M. v. Turkey (No. 34494/97) dated 8 August 2006

ACTION REPORT

I. FACTS

On 15 March 1996, at about 1 2.30 a.m., four individuals in civilian clothing , who introduced themselves as police officers, went to the applicant's home. Accusing the applicant and one of his sons of illegal activities and of harbouring criminals, they searched the house without presenting a search warrant. Considering that he had been subjected to an unlawful search, the applicant lodged a complaint on the same day; a witness statement was taken from him immediately. On 20 March 1996 the public prosecutor ruled that there was no case to answer, given the "absence of an act constituting any offence", on the ground that, according to information provided by various police departments, no search of property or persons had been carried out at the applicant's home. The latter appealed unsuccessfully agai nst that decision.

On 4 October 1996 , the applicant lodged an application with the European Court of Human Rights ("the Court") and stated that his right to respect for his home, safeguarded by Article 8 of the European Convention of Human Rights ("the Convention") had been violated on account of an unlawful search and subsequent lack of an effective and efficient investigation into his complaint.

II. JUDGMENT

Having regard to the obligation to carry out an investigation laid down by Article 8, the Co ur t considered that, once application had been made to it, the public prosecution service ought to have examined the appl icant's complaint in such a way as to demonstrate at least a willingness to establish the facts, then to identify those responsible. In those circumstances, the Court considered that the applicant could claim to be a victim of a failure to protect his right to respect for his home and concl uded that there had been a violation of Article 8.

The Court rejected the applicant's request for non-pecuniary damage on the grounds that the finding of a violation in itself constituted sufficient just satisfaction a nd awa rded him 1 000 e uros (EUR) for costs and expenses.

III. INDIVIDUAL MEASURES

Just satisfaction

The just satisfaction amount awarded by the Court has been paid to the applicant. The relevant documents indicating payment have been submitted to the Department of Execution of Judgments on 27 February 2007. The Government submits that no further indi vidual measure is necessary in the present judgment.

IV. GENERAL MEASURES

A. Translation and Publication of the Judgment

The judgment of the Court in the case of HM. v. Turkey has been translated into Turkish and published on the official website of the Human Rights Department of the Ministry of Justice. This judgment is available at http://www.inhak.adalet.gov.tr/ara/karar/hm2006.pdf .

B. Circulation of the Judgment to the Relevant Authorities

The translated version of the judgment has been disseminated among the relevant authorities such as the Human Rights Inquiry Committee of the Turkish Grand National Assembl y, the Constitutional Court, the Court of Cassation, the Ministry of Interior, the Ministry of Finance and the relevant Chief Public Prosecutor's Office that had rendered the judgment.

C. Legislative Arrangements

The Code of Criminal Procedure (CCP) Law N o. 1 41 2, which was in force at the time of the incident that is the subject matter of the application, was abolished on 1 June 2005. On the same date, the new Code of Criminal Procedure (CCP) Law N o. 5271 came into force, which sets out new standards for the protective measures including the search procedure.

The provisions of the abolished CCP regarding the search measure were regulated under Articles 94 to 1 04. In these articles, the procedures in respect of the authority to issue a search warrant, persons to be present in the course of a search, procedures to be followed during the night searches were set out. Article 97 § 1 of the Law regulated that the police officers could conduct a search in urgent circumstances. However, the relevant articles did not include details that should be included in a search warrant.

In the current CCP (Law N o. 5271), the search measure has been -regulated in a substantially detailed manner as other protective measures. According to Article 116 of the current CCP, in cases where there is a reasonable doubt that the suspect or the accused may be arrested, or evidence of crime may be obtained, then a body search and a search of the belongings, or a search at home or work or at other premises of the suspect or the accused may be conducted upon a decision delivered by the relative judge; in urgent circumstances, it may be conducted upon Public Prosecutor's decision. A rt icle 118 provides that person's home or work, as well as other premises that are covered, may not be searched at night. This provision is not applied in cases where the suspect is apprehended in the act or where delay would be detrimental or in cases where the suspect is re-apprehended after a previous escape from custody or detention on remand or in case the person is a convict who escaped du ring the execution of sentence.

Article 119 of the CCP stipulates who might issue a search warrant and the elements to be included in a search warrant. Accordingly, a search warrant or order shall clearly include the following elements:

a) The act that constitutes the ground for search,

b) The name of the person with respect to whom the search shall be conducted or the item/hat is to be searched, as well as the address of the place to be searched,

c) Validity period of the search warrant or order.

Furthermore, in the Regulation on Judicial and Preventive Searches which was published in the Official Gazette on the same date as the CCP ( 1 June 2005), which thus entered into force, the search measure was regulated in a more detailed manner than the CCP. Consequently, as also held in the judgment of the Court, conduct of the police officers, in particular whether they comply with the information given in the search warrant can be supervised.

According to the Regulation, a search warrant may only be issued for a person if there exist a reasonable doubt on an offence. Taking the rights of individuals into consideration, the Regulation subjects the concept of reasonable doubt to strict conditions.

Article 6 o f the Regulation states,

"A reasonable doubt is the general doubt against substantial facts with respect to flow of li fe.

A reasonable doubt is determined by taking the circumstances into account such as the date of the search, the behaviours of the related person and others accompanying him, place and qualification of t h e material which the police officer doubts that is being carried.

A reasonable doubt should include indications which support the denouncement and complaint.

The doubt should be based on substantia l facts.

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

The competent judicial authority shall decide whether to conduct a search, under Article 7 of the Regulation mentioned above. I n this regard, the police officers shall apply to the public prosecutor after preparing a detailed and justified report indicating the causes of the reasonable doubt in order to have a search warrant issued.

Article 12 of the Regulation sets out the required information to be stated in the document that is 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 under Article 7 and upon the person's request, a document including the following information shall be given to the person who has been the subject matter of the search;

1 ) whether the search has been conducted

a) for the reason that the person is a suspect or accused, and that there is a re asonable doubt regarding that s/ he might be caught or that evidence of crime might be obtained,

b) for the objective that the suspect or accused to be caught or that evidence of crime to be obtained,

2) the nature of the crime leading to the investigation or prosecution in the case that the suspect or accused in respect of whom there is a reasonable doubt that s/he might be caught or the evidence of the crime that might be obtained through search of that person, his/her property, home, workplace or other locations belonging to her/him,

3) list of goods that are confiscated and taken under protection,

4) the information as regards the .fact if nothing has been obtained to prove the suspicion to be right,

5) opinion and allegations of the person who has been searched regarding the ownership of the confiscated property".

It is clearly seen that the provisions of the CCP Law No. 5271 a nd the Regulation on Judicial and Preventive Search are now fully in line with the standards put forward i n the Court's case law, and in the manner to protect individuals against arbitrary intervention of police officers.

An important point to be mentioned here is Article 1 20 of the TCC (Turkish Criminal Code) Law No. 5237 that came into force after the Court's judgment in the case of H.M. which provides the procedure to be followed against the public officials conducti ng an unlawful search:

"A public official who pe rf orms an unlawf u l search on a person, or of his personal belongings, shall be sentenced to imprisonment for a term of three months to one year."

According to this article, pol ice officers will not be able to conduct a search, u nless there is a duly regulated search warrant. Their contrary behaviour will be investigated by prosecution notwithstanding the existence of a complaint and they will be subjected to criminal proceedings. Legislative amendments concerni ng the search measures have also been applied by the Supreme Courts. I n a judgment of the Assembly of the Criminal Chambers of the Court of Cassation, dated 17 November 2009, it has been held that a search could only be conducted upon the judge's decision, and that a search conducted without the judge's decision would be unla w ful, therefore the evidence collected as such would not be regarded as lawful (Assembly of the Criminal Chambers of the Court of Cassation, 17 Novem ber 2009, 2009/7-160 E. 2009/264 K., A nn ex 1 ). See also (Assembly of the Criminal Chambers of the Court of Cassation, 26 June 2007, 2007/7-147 E., 2007/159 K., A nn ex 2), (Assembly of the Criminal Chambers of the Court of Cassation, 4 October 2011, 2011/6-46 E., 2011/195 K., Annex 3). As inferred from the judgments, the implementation has settled in practice as well.

According to Article 161 § 5 of the CCP , Law No. 5271, public prosecutor shall, ex officio , launch an investigation about the public employees and their superiors who misuse or neglect their statutory duties, as well as members of security forces who misuse or neglect to execute the oral or written demands or orders of the public prosecutors. Accordingly, police officers who conduct an unlawful or unfair search or who violate the human rights and freedoms shall, ex officio , be prosecuted by the public prosecutors, without prior permission.

By no longer requiring permission to initiate investigation against police officers, it has been guaranteed that an effective investigation will be conducted in an independent and impartial manner.

Non-requirement of permission for investigations concerning members of security forces for offences committed on duty has been established in practice through the Court of Cassation's case law. In its judgment rendered on 15 November 2006, the 4th Criminal Chamber of the Court of Cassation held that Article 161 § 5 of the CCP clearly sets out the fact that the police officers performing their judicial security duties would be prosecuted ex officio by the Public Prosecutor, and that no permission is required in respect of the police officers (4th Criminal Chamber of the Court of Cassation, 15 November 2006, 2006/5351 E ., 2006/16285 K., Annex 4; see also judgment of the 4th Criminal Chamber of the Court of Cassation, 6 February 2007, 2006/10499 E., 2007/1166 K., Annex 5).

D. Training and Awareness Raising Activities

I n the High Level Conference organized by the General Directorate of International Law and Foreign Affairs, Human Rights Department, on 15-17 November 2011, six working groups were established within the context of the Convention provisions. In one of the working groups, legislation and practice concerning the right to respect for private and family life safeguarded by Article 8 of the Convention were discussed. Legislative and practical aspects of such problems were elaborated. The working group 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. Problems with respect to the search measure and possible solutions in compliance with the Court's case-law were put-forth. It was co ncluded that the problems origi nated in the execution of the new legislation, and therefore, training activities in order to raise awareness would have to be given priority.

Moreover, "the Project on Strengthening the Effectiveness of Turkish Criminal Justice System" ai ms at elimination of problems such as unlawful search in criminal justice system, and strengthening the implementation capacity of the Con vention. The project was launched in March 201 2. Within the scope of the project, Turkish criminal justice system will be reviewed in general and suggestions for solution will be prepared for the defective aspects. During the course of the Project, study visi ts will be made to domestic pilot courts, a training curriculum will be prepared for the Justice Academy, and seminars will be organi s ed.

E. Individual Application Right before the Constitutional Court

A new domestic remedy, individual application right to the Turkish Constitutional Court, was introduced into the Turkish legal system by the constitutional amendments of 2010, and since 23 Septem ber 2012, the Constitutional Court has been receiving applications. Article 148 of the Constitution stipulates that anyone, who considers that his/her constitutional rights set forth in the Convention have been infringed by a public authority, will have a right to apply to the Constitutional Court after exhausting other domestic remedies.

After an examination, the Constitutional Court shall decide whether the fundamental rights of the applicant have been violated. In the event it fi n ds a violation, it may also decide what should be done in order to redress the violation and its consequences.

I n the event the violation results from a court judgment, the Constitutional Court may send the case ‑ fi le to the competent court for a retrial i n order to restore the fundamental rights of the applicant. However, if the Constitutional Court deems that a re-trial will be of no use, then it may award compensation to the applicant or it may ask the applicant to file a case before the competent first-instance court to seek compensation for the damages s/he may have suffered.

V. Conclusion

In the light of the submissions made above, the Government maintains that Turkey has taken all necessary general measures and no additional individual measure is needed for the execution of the H.M judgment. The Government therefore respectfully invites the Committee of Ministers to close its examination.