Communicated on 22 September 2014

SECOND SECTION

Application no. 14704/12 Mihriban KIRDÖ K and Meral HANBAYAT against Turkey lodged on 12 March 2012

STATEMENT OF FACTS

The applicants, M rs Meral H anbayat and Mrs Mihriban Kırdök , are Turkish nationals, who were born in 1980 and 1958 respectively and live in I stanbul . They are represented before the Court by Mrs S.Yalçın Elban a nd Mr H. K . Elban lawyers practising in Antalya .

A. The circumstances of the case

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

The applicant s are lawyer s by profession. They practise in the same office as Ü mit Sislig ü n , who is also a lawyer.

On 7 April 2010 Ü mit Sislig ü n visited his client H.A. , who was being detained in the İmralı Prison with a number of other inmates. Before Mr Sisligün conducted his visit, another visit had taken place in a separate room of the same prison to Abdullah Öcalan , who was the leader of the PKK (Workers ’ Party of Kurdistan, an illegal organisation ), by his lawyers .

In 2011 a n investigation was launched in order to detect and reveal secret communication arrangements within the PKK and the KCK (the Kurdistan Communities Union, an illegal organisation ). A s a part of the investigation police officers carried out simultaneous operations in 16 cities . O n 21 November 2011 a judge from the committee of three judges of the I stanbul 11 th Assize Court issued the following order in respect of Ü mit Sislig ü n :

“( ... ) as any delays would be detrimental, it is decided to arrest the above - mentioned member of the organisation , in accordance with A rticles 20 and 21 of the Turkish Constitution and A rticles 117, 119, 127 and 128 of the Code of Criminal Procedure to conduct a body search o f him and on the persons accompanying him when he is arrested , to conduct a search during the day (and during the night if it is necessary under A rticle 118 of the Code of Criminal Procedure) at the addresses mentioned above and their annexes , and to conduct a body search o f the persons who are present at the addresses and, if any , in the cars he drives.”

On 22 November 2011 the police arrested Ü mit Sislig ü n at his home.

On the same day, the police executed the search warrant in Ü mit Sislig ü n ’ s office , which he shared with the applicants . The search was conducted in the presence of the public prosecutor, a representative of the I stanbul Bar Association , and the applicant Meral Hanbayat .

At the end of the search the police made and took away with them a copy of the entire data in the computer hard disk that was jointly used by all the lawyers in the office. The portable hard disk which belonged to the applicant Meral Hanbayat was also copied and sub sequently seized by the police. The search and seizure report was signed by th os e present, including the applicant Meral Hanbayat . H owever , she also added her reservations in the re port and objected to the copying of the computer disk which was jointly used by all lawyers in the office . She also added that the portable drive seized belonged to her and that the search warrant should have been issued by the committee of three judges of the Assize Court and not only by one of its number.

On 23 November 2011 the two applicants applied to the Assize Court . They informed the Assize Court that they were representing their colleague Ü mit Sislig ü n , and asked for the court order of 21 November 2011 to be annulled. In their application they also requested the immediate return or destruction of the data seized during the search which did not belong to Ü mit Sislig ü n . It was also highlighted that the search warrant had not been issued by the Assize Court , but by a single judge acting on behalf of the court and thus contrary to Article 58 of the Attorney ’ s Act. They further complained that the subject matter of the search had not been specified in the search warrant, which meant that it gave the police too wide a discretion. The applicant s did not receive any answer from the Assize Court in respect of their application.

On 3 April 2012 the I stanbul Public Prosecution Office submitted a bill of indictment to the Assize Court , accusing Ü mit Sislig ü n o f communicating information between the illegal organisation s PKK and KCK by visiting Abdullah Öcalan on 7 April 2010, and of aiding the closed communication network with i n the organisation s . A criminal case was brought against him before the I stanbul Assize Court. The case is still pending before th at court.

B. Relevant domestic law

Relevant Parts o f the Code of Criminal Procedure

“Section 130:

(1) Attorneys ’ offices shall only be searched with a court decision and in connection with the incident that is indicated in the decision and under the supervision of the public prosecutor. The President of the Bar Association or an attorney representing him or her shall be present at the time of search.

(2) If the attorney whose office is searched, or the President of Bar Association or an attorney representing him, objects to the search by alleging that the items to be seized at the end of the search relate to the professional relationship between the attorney and his clients, then those items shall be put in a separate envelope or a package and sealed by the participants. In the investigation phase the M agistrates ’ C ourt , and in the trial phase the judge or the trial court may be requested to deal with the matter. If the judge establishes that the seized items concern the professional relationship between the attorney and his or her client, then those items shall be immediately returned to the attorney and the record concerning the seizure shall be destroyed. The decisions mentioned in this subparagraph shall be issued within 24 hours.”

COMPLAINTS

The applicants complain under Article 8 of the Convention that the search carried out in their law firm was unlawful because the search warrant was issued only by a single judge of the Assize Court not by the committee of three judges , contrary to the provisions of the Attorneys ’ Act. Moreover, the search warrant did not specify the subject matter of the search which meant that all their documents, including those of their clients, were searched . They further maintain that their attorney-client privilege was violated because a computer which contained documents relating to their clients was copied and that copy was seized even though it was not relevant for the investigation in question.

The applicants also complain under Article 13 of the Convention that there was no effective remedy at their disposal for their complaints under Article 8 of the Convention.

QUESTIONS TO THE PARTIES

1. As regards the se arch conducted in the applicant s ’ law firm and the seizure of the data in their computer, h as there been an interference with the applicants ’ right to respect for their private life, home or correspondence, within the meaning of Article 8 § 1 of the Convention?

If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

In particular, was the search warrant issued and executed in accordance with the relevant provisions of Code of Criminal Procedure and the Attorneys ’ Act?

2. Given the procedural protection of the right to respect for home (see H.M. v. Turkey , no. 34494/97, §§ 25-30, 8 August 2006), do the proceedings carried out into the applicants ’ claims meet the requirements of Article 8 of the Convention?

3. Did the applicants have at their disposal an effective domestic remedy for their complaints under Article 8 of the Convention, as required by Article 13 of the Convention?