Communicated on 22 September 2014

SECOND SECTION

Application no. 28349/11 Ali Haydar YEŞİL against Turkey lodged on 28 February 2011

STATEMENT OF FACTS

The applicant, Mr Ali Haydar Yeşil , is a Turkish national, who was born in 1983 and lives in Tunceli . He is represented before the Court by Mr Ö.U. Kaplan , a lawyer practising in Tunceli .

A. The circumstances of the case

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

On 25 June 2007, following an anonymous tip, a search was carried out in the home of U.M., who was suspected of being a member of an illegal organisation. During the search a note was found in which the applicant ’ s name was mentioned.

On the same day a search warrant was issued by the Tunceli Public Prosecution Office. The search was to be carried out once and at night in the house where the applicant lived with his parents.

On 26 June 2007 the applicant went to the Tunceli Public Prosecution Office of his own volition after becoming aware of the search warrant. He was arrested there on suspicion of being a member of the illegal organisation.

On 27 June 2007 at 00h50 the police arrived at the applicant ’ s home. The applicant ’ s parents, who were not at home at the time, were contacted and asked to come and unlock the door for the search. Following the parents ’ arrival the door was opened and a special operations team entered the house unaccompanied, declaring that they were going to carry out an “initial search” for security purposes. When the applicant ’ s parents objected to the search they were prostrated on the floor, and all the rooms in the house were searched by the special team without the presence of anyone else. Following the “initial search” the actual search for which the search warrant had been issued began. The police officers, accompanied by the head man of the neighbourhood ( muhtar ) and the applicant ’ s parents entered the flat and a video recording was then started. The police found explosive material with a clock, batteries, cables and a note in the space between the beds in the bedroom. At the end of the search the applicant ’ s parents alleged that the materials found during the search were not theirs and they had been put there by the police officers. They refused to sign the search record.

On the same day the applicant was interrogated at the Tunceli Prosecution Office. He stated that he did not know what had been found in his apartment, and alleged that the search could have been used to frame him. His lawyer also submitted that an initial search had been carried out in his flat without any other person ’ s presence and the video recording had started after the end of the initial search. He alleged that the persons who had entered the applicant ’ s flat during the initial search would have been able to put incriminating materials there.

The applicant was brought before the Tunceli Magistrates ’ Court Criminal Division , which ordered his detention on remand. The head man of the neighbourhood who had been present during the search at the applicant ’ s home was also heard by the court. He stated that at the beginning of the search they had been told to stay outside while a special police team with masks and guns had gone inside the flat, staying there a couple of minutes. He stated that that search had not been recorded.

The Elaz ığ Police Department Fingerprinting Laboratory Bureau examined some of the materials seized in U.M. ’ s and the applicant ’ s homes. On 9 July 2007 a report was issued by the Bureau stating that three different fingerprints had been identified on the paper seized in the applicant ’ s home, and 16 different fingerprints had been identified on the paper seized in U.M. ’ s home.

On 27 September 2007 the Elaz ığ Police Department issued another report after comparing the fingerprints mentioned above with the suspects ’ fingerprints. The report stated that on the paper seized in applicant ’ s home, two out of the three fingerprints were not suitable for comparison, and the last fingerprint was different from the applicant ’ s and the other suspects ’ fingerprints. It continued that on the paper seized in U.M. ’ s home, six out of the 16 fingerprints were not suitable for comparison, and the remaining 11 fingerprints were different from the applicant ’ s and the remaining suspects ’ fingerprints.

On 7 November 2007 the Malatya Prosecution Office indicted the applicant and a number of other suspects for membership of an illegal organisation and for possessing explosive materials.

On 27 December 2007 the first hearing was held before the Malatya 3 rd Assize Court. The applicant repeated that the items found in his home did not belong to him and that he had been set up. His lawyer also submitted that the initial search carried out while the applicant ’ s parents were prostrate on the floor had been unlawful. Thus, it was not possible for the court to rely on the evidence gathered during such an unlawful search.

On 24 January 2008 the Tunceli Assize Court , which had been requested to do so in a letter rogatory by the Malatya Assize Court, heard seven of the police officers who had conducted the search at the applicant ’ s home. The police officer F. İ . stated that a specially trained team had made an initial search of the applicant ’ s home without the presence of the inhabitants, and that that search had not been videoed. When the materials had been found, the applicant ’ s parents had alleged that the police had placed those materials in the flat. Police officer F.İ. added that in practice an initial security search was usually carried out and that it generally lasted between 30 and 60 seconds. The remaining six police officers made similar statements.

On 14 February 2008 the head man of the neighbourhood was heard before the Tunceli Assize Court as a witness. He repeated his previous statements, and added that they had not been allowed to enter the flat during the initial search which had lasted for a period of 5 to 10 minutes. After that initial search they had noticed that the beds where the materials had been found had been disturbed.

On 11 June 2008 the Malatya 3 rd Assize Court convicted the applicant for wilfully aiding an illegal organisation and for possessing explosive materials, and sentenced him to 10 years and 5 months ’ imprisonment. The court ruled that applicant ’ s objections regarding the unlawfulness of the search were not well-founded. The applicant ’ s plea that the items found in his flat did not belong to him was not accepted by the court as the applicant ’ s name was written on the note that had been seized in U.M. ’ s home.

The applicant ’ s lawyer appealed against the decision and argued that the search had been unlawful. Therefore, the evidence gathered during that search was dubious and questionable. In this respect he maintained that the initial search had been conducted unaccompanied and the subsequent search had been conducted only in the presence of the head of the neighbourhood . Also, the applicant ’ s fingerprints had not been found on any of the evidence. In any event, the fact that the applicant had himself gone to the authorities as soon as he found out about the search warrant was another indication that the allegations against him were baseless.

On 8 June 2009 the Court of Cassation quashed the decision of the Assize Court only on the ground that the applicant ’ s action should not be considered as constituting two separate offences. In its decision the Court of Cassation did not deal with any of the points raised by the applicant in his appeal petition .

On 8 October 2009 the Malatya 3 rd Assize Court convicted the applicant for possessing explosive materials for the benefit of an illegal organisation, and sentenced him to 10 years and 5 months ’ imprisonment.

The applicant ’ s lawyer appealed against the decision, repeating the same arguments.

On 27 September 2010 the Court of Cassation upheld the decision without giving answers to the applicant ’ s objections.

B. Relevant domestic law

Relevant Parts o f 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 public prosecutor being present, two members of the community council in that district or two neighbours shall be called to be present, in order to be entitled to conduct 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 in evidence of evidence shall be denied in the below mentioned cases:

a ) If the evidence was obtained unlawfully;

...”

COMPLAINTS

The applicant complains under Article 6 of the Convention that the decision to convict him was based on evidence that was obtained during an unlawful search.

Without relying on any Convention provisions the applicant also complains that the search was unlawful. He alleges, in particular, that the police carried out an initial search without allowing anyone else to be present, and that the subsequent search was not carried out with the presence of the public prosecutor or two other persons from the neighbours or the local administration, contrary to what was required by law.

QUESTIONS TO THE PARTIES

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

In particular, were the princip les laid down under Ar ticle 6 § 1 of the Convention respected in this case, with reference to the following:

a) do the circumstances in which the evidence was obtained cast doubt on the reliability of that evidence?

b) was the applicant given an adequate opportunity to challenge the reliability of the evidence and its inclusion in the trial?

c) was the evidence challenged by the applicant corroborated by any other reliable evidence?

2 . Has there been an interference with the applicant ’ s right to respect for his private life or home 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, were the procedural safeguards laid down in the Code of Criminal Procedure complied w ith regarding the initial and subsequent searches conducted in the present case?

In this connection, which national legal provision allows police officers to carry out “initial searches” ( ön arama ) without the presence of independent observers?