SECOND SECTION

Application no. 19602/06 Cevat ÖZEL against Turkey lodged on 26 April 2006

STATEMENT OF FACTS

The applicant, Mr Cevat Özel , is a Turkish national, who was born in 1948 and lives in Istanbul, where he practi s es as a lawyer . He is represented before the Court by Mr E. Şahin , a lawyer practising in Istanbul .

The circumstances of the case

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

While examining a case-file at the registry of the 7 th Chamber of the Istanbul Assize Court as a lawyer, the applicant came across a letter of instruction, addressed by the Istanbul Public Prosecutor to the Istanbul Security Directorate on 17 December 2004, ordering the cessation of the interception of his mobile phone. According to this letter, the 8th Chamber of the Istanbul Assize Court had issued a decision on 17 September 2004 authorising the surveillance of the mobile phones of eight people, including that of the applicant, for a period of three months, in relation to a case pending before it (case no. 2004/1 E. concerning the embezzlement of funds from İ mar Bankas ı ). It appears that the applicant was not able to get his hands on the impugned court decision itself on account of its confidentiality.

On 18 April 2005 the applicant brought an action for compensation against the three judges of the 8th Chamber of the Istanbul Assize Court who had ordered the interception of his phone, on the ground that their decision w as “contrary to clear and definite provisions of a l aw which required no interpretation” within the meaning of Article 573 § 2 of the former Code of Civil Procedure . The applicant argued, inter alia , that the issue of interception of communic ations was regulated by Law no. 4422 on Combatting Criminal Organisations Pursuing Illicit Gains [1] , which only authorised such interception for the organised crimes listed exhaustively therein. By an amendment introduced to the Banking Law (Law no. 4389) on 12 December 2003, this authorisation had been extended solely to the offence of embezzlement provided under Article 22 § 4 of the Banking Law. However, the charges in case no. 2004/1 E. pending before the 8th Chamber of the Istanbul Assize Court fell neither under Law no. 4422, nor under Article 22 § 4 of the Banking Law. In any event, while the bill of indictment in case no. 2004/1 E. had been issued on 3 December 2003, the new offence of embezzlement under Article 22 § 4 of the Banking Law was introduced only on 12 December 2003, demonstrating once again that Article 22 § 4 could not have been in question in case no. 2004/1 E. For these reasons, the interception order had no legal basis. The applicant further emphasised that according to Section 2 of Law no. 4422, interception orders could only be issued against persons suspected of having committed certain offences, or those suspected of having aided and abetted or assisted in any way the principal perpetrators during or subsequent to the commission of those offences, whereas, the applicant had no connection to the case no. 2004/1 E. pending before the 8th Chamber of the Istanbul Assize Court, either as a defendant or as an accomplice, a witness or a lawyer.

On 8 November 2005 the Court of Cassation, which examined the case as a court of first-instance, rejected the applicant ’ s request. It held that there was no ground to engage the civil liability of the judges of the 8th Chamber of the Istanbul Assize Court as they had not acted contrary to the clear and definite provisions of any laws. Without referring to the explicit mention in the Banking Law that interception was possible only in relation to the specific embezzlement offence set out in Article 22 § 4 of that Law, which was apparently not in question in case no. 2004/1 E. , it held that courts had the authority to order interception of communications in all embezzlement cases, where banks whose managements had been transferred to the Savings Deposit Insurance Fund (TMSF) were involved. The Court of Cassation moreover added that in view of the strong indications that the applicant had been in contact with the fugitive defendants in case no. 2004/1 E., and in the absence of any other means to locate the defendants for whom Interpol had also issued a red alert , it had been lawful to intercept the applicant ’ s telephone. The Court of Cassation ordered the applicant to pay 1,000 Turkish liras (TRY) in non ‑ pecuniary damages to each of the three judges, in accordance with Article 576 of the former Code of Civil Procedure.

It appears that it was only during the course of these proceedings that the applicant was able to access the request made by the Istanbul Security Directorate, dated 17 September 2009, to intercept his mobile phone and the ensuing authorisation granted by the 8th Chamber of the Istanbul Assize Court on the same day.

On 29 December 2005 the applicant appealed against the judgment of the Court of Cassation, largely reiterating his previous arguments before that court. As an additional argument he stated that while Section 2 of Law no. 4422 required a “strong indication” that a person had been aiding and abetting a suspect before interception could be authorised, the interception by the Istanbul Security Directorate was based on mere “hearsay” ( duyum ) that the applicant had been in contact with the defendants. Similarly, in its interception order dated 17 September 2004, the 8th Chamber of the Istanbul Assize Court had referred to the existence of “some intelligence” that the applicant had been in contact with the defendants, as opposed to establishing the availability of a “strong indication” that the applicant had in fact “aided and abetted or assisted” the defendants in any way.

In response to the judges ’ arguments against his appeal request, on 8 February 2006 the applicant further submitted that the fugitive defendants in case no. 2004/1 E. had been charged under Article 22 § 3 of the Banking Law, and not under the distinct embezzlement offence in Article 22 § 4 or any of the offences enumerated in Law no. 4422, which were the only offences for which interception of communications could be authorised. Therefore, the interception order in the instant case had been unlawful.

On 15 March 2006 the Joint Civil Chambers of the Court of Cassation ( Yarg ı tay Hukuk Genel Kurulu ) upheld the earlier decision of the Court of Cassation.

COMPLAINT

The applicant complains under Article 8 of the Convention that the unlawful interception of his mobile phone, which he used for both private and professional reasons, violated his right to respect for his private life, including his professional relationships, and for his correspondence . He claims in particular that the interception order was executed without judicial supervision and that he was not notified of the interception of his phone once the measure came to an end.

QUESTIONS TO THE PARTIES

Has there been an interference with the applicant ’ s right to respect for his private life and correspondence under Article 8 of the Convention? If so, was that interference in accordance with the law and justified in terms of Article 8 § 2? In particular, did the 8th Chamber of the Istanbul Assize Court comply with the terms of Law no. 4422 on Combatting Criminal Organisations Pursuing Illicit Gains when ordering the interception of the applicant ’ s mobile phone and did the law in question provide adequate protection against arbitrary interference? Was the interception measure “proportionate” in the circumstances, considering that the applicant used his mobile phone also for his professional correspondence as a lawyer in matters potentially requiring professional secrecy?

The Government are invited to submit a copy of the case-file of the proceedings before the 8th Chamber of the Istanbul Assize Cour t (case no. 2004/1 E.), including the bill of indictment. The Government are also requested to provide information as to the processing, storage and/or destruction of the information obtained through the interception of the applicant ’ s mobile phone .

[1] 1. This law was repealed by Law no. 5320 as of 1 June 2005.