Communicated on 16 February 2015

SECOND SECTION

Application no. 69762/12 Ä°brahim Halil BUDAK against Turkey lodged on 24 September 2012

STATEMENT OF FACTS

The applicant, Mr Ä°brahim Halil Budak , is a Turkish national who was born in 1985 and is currently detained in prison in Ä°zmir . He is represented before the Court by Mr Mustafa Rollas , a lawyer practising in Ä°zmir .

A. The circumstances of the case

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

On 30 January 2007 a certain K. Ş . was arrested and questioned by the police on suspicion of being a member of an illegal organisation. During the questioning he stated that he had met a person named “İbrahim” who had agreed to help him in his work relating to the illegal organisation. Although K. Ş . had asked him to recruit new members for the illegal organisation, it had not done so.

On 31 January 2007 police officers showed K. Ş . a number of photographs and asked him to identify the persons whom he knew to be connected with the illegal organisation. He identified the applicant from his photograph as “İbrahim”.

On 7 March 2007 a public passenger bus was set on fire by a number of unidentified persons.

On 14 March 2007, upon the request of the prosecution office, the İzmir Assize Court decided to put a tap on the applicant ’ s telephone.

On 19 March 2007 the Van Prosecution Office decided to conduct a search at the applicant ’ s house where he lived with his parents.

On 20 March 2007 police officers carried out the search of the applicant ’ s house in the presence only of the applicant ’ s father. A piece of paper with the title “ Sürece Ait Rapordur ” (“Progress Report”) and 43 leaflets with entitled “ Bucadaki Yurtsever Esnafımıza ” (“To our Patriotic Tradesmen in Buca”) which were drafted by the “ Apocu Gençlik İ nsiyatifi ” (“Youth Initiative of Apo [1] ”) were found and seized.

On the same day the applicant was taken into custody on suspicion of aiding an illegal organisation. On 10 April 2007 the Ä°zmir Prosecution Office filed an indictment with the Ä°zmir Assize Court in which the applicant was accused of being a member of an illegal organisation, possessing dangerous substances and a number of other offences. Subsequently a criminal case was lodged against the applicant.

On 6 August 2007 the first hearing was held before the Ä°zmir Assize Court. In his defence submissions the applicant stated that he had not been present during the search of his home and that the documents found at his home were not his. In his opinion, they had been planted in his house by the police.

On a number of occasions the applicant and his defence lawyers also told the Assize Court that the identification parade had not been carried out in accordance with the applicable law and procedure, and requested that it be excluded from the evidence. He also repeated his submissions regarding the lawfulness of the search carried out in his house and challenged the admissibility of the documents found during that search.

On 21 November 2007 police officer C.A., who had carried out the search at the applicant ’ s house, was heard by the court. He stated that they had carried out the search too early in the morning and for this reason they had been unable to ensure that the necessary persons were present during the search.

On 10 November 2010 the applicant was found guilty of the offence of member ship of an illegal organisation and damaging public property by setting fire to a passenger bus. He was sentenced to twenty five years and four months ’ imprisonment. In its judgment the İzmir Assize Court noted that during the trial the applicant had challenged the admission in evidence of the d ocuments found in his house and had maintained that he did not know K.Ş. In reaching its conclusion the Assize Court relied on the documents found in the applicant ’ s house and the identification parade during which K.Ş. had identified the applicant from his photographs. The Assize Court considered that the search carried out in the applicant ’ s house had been “authorised by a judge” and was therefore “in accordance with the procedure”. No mention was made by the Assize Court in its judgment about the applicant ’ s arguments concerning the lawfulness of the identification parade.

The applicant appealed the judgment.

On 26 December 2011 the p ublic p rosecutor of the Court of Cassation submitted his opinion to the Court of Cassation and asked for the judgment of the first instance court to be uphel d.

On 5 March 2012 the applicant ’ s lawyer submitted his reply to the public prosecutor ’ s opinion. He maintained that the judgment had been rendered without K.Ş. having been heard as a witness and without K.Ş. having identifi ed the applicant before the first instance court. He further maintained that the identification carried out by the police had been contrary to the additional section 6 of the Law on the Powers and Duties of the Police (“PVSK”) . He argued that the identification should have be en carried out by showing photographs of different people together to the identifier and by reminding the identifier that the photograph of the accused person might not be among the photographs shown . The lawyer also maintained that the search carried out at the applicant ’ s ho use had been unlawful because neither two members of the town council nor any neighbours had been present during the search , contrary to the requirements of the Code of Criminal Procedure.

The applicant ’ s lawyer also maintained that the documents found at the applicant ’ s house were not his; according to his client, they had been planted in his house by the police. The lawyer submitted that the documents found at the applicant ’ s house did not have the applicant ’ s fingerprints on them and that they were anonymous. He also maintained that there was no evidence that the applicant had set a public passenger bus on fire and that the judgment of the first instance court had not been adequately reasoned to explain why the applicant had been found guilty of that offence.

On 17 April 2012 the appeal lodged by the applicant was rejected and the first instance court ’ s judgment was upheld. No mention was made in the Court of Cassation ’ s decision about the arguments raised by the applicant.

On 26 July 2012 the applicant applied for a rectification of the decision. The Prosecution Office at the Court of Cassation rejected that request.

B. Relevant domestic law

The Code of Criminal Procedure

“Section 119:

Search Order

(4) If private residences, business premises or properties that are not open to the public are to be searched without the presence of the public prosecutor, two members of the local council in that district or two neighbours shall be invited to be present [during the search].”

“Section 120:

Persons who may be present at the search

(1) The owner of the premises or possessor of the items to be searched may be present at the search; if they are not present, their representative or one of their relatives who is compos mentis, or a person living in his household or a neighbour shall be present.”

“Section 206:

(2) Admission of evidence shall be denied in the below mentioned cases:

a) If the evidence was obtained unlawfully;

...”

T he Law on the Powers and Duties of the Police

“Additional Article 6:

...

Persons who are subjected to identification shall be photographed all together or their video is recorded and put in the investigation file.

The suspect may also be identified from his/her photograph. However, the identification cannot be done only by showing one photograph of that suspect or different photographs of him or her. Same size photographs of different persons must also be shown.”

COMPLAINTS

The applicant complains under Article 6 of the Convention that the decision convicting him was based on the statements of K.Ş. which were obtained during the investigation against K.Ş . and not during the criminal case in which he was found guilty. Thus, he was not afforded the opportunity to draw attention to the contradictions in K.Ş . ’ s statements or to the identification process.

The applicant also complains under Article 6 of the Convention that the decision to convict him was given without any concrete reasoning. The decision was based only on the statements of K.Åž . and the documents that were found in his house. Those documents had nothing to do with him they did not have any legal value. The applicant further complains that the documents were obtained unlawfully and they were used as evidence to convict him.

The applicant complains under Article 8 of the Convention that the search in his house was carried out unlawfully because two members of the local council or two neighbours were not present during the search.

QUESTION S TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention?

In this connection, did the criminal court which convicted the applicant give adequate reasoning in its judgment in response to the challenge brought by the applicant against the lawfulness of the evidence used to convict him?

Also in this connection, w as the applicant able to examine witnesses against him, as required by Article 6 § 3 (d) of the Convention (see, in this regard, Cevat Soysal v. Turkey , no. 17362/03 , §§ 72-79, 23 September 2014) ?

2. Has there been a violation of the applicant ’ s right to respect for his home, contrary to Article 8 of the Convention?

In particular, was th e interference in accordance with the law in terms of Article 8 § 2?

[1] 1. Apo is the shortened name of Abdullah Ö calan , the leader of the PKK, Kurdistan Workers’ Party, an outlawed organisation .