SECOND SECTION

Application no. 6250/10 Osman Ali Feyyaz PAKSÃœT against Turkey lodged on 11 January 2010

STATEMENT OF FACTS

The applicant, Mr Osman Ali Feyyaz Paksüt , is a Turkish national, who was born in 1953 and lives in Ankara.

A. The circumstances of the case

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

The applicant is a member of the Constitutional Court and was serving as the Vice President of the said court at the time of the events in question. On an unspecified date in October 2008, the applicant was informed that transcripts containing his telephone conversations had been given to the President of the Constitutional Court in an appendix to the Istanbul Chief Public Prosecutor ’ s letter dated 15 October 2008. In this letter, the Istanbul Chief Public Prosecutor informed the President of the Constitutional Court that during the criminal investigation against the Ergenekon terrorist organisation , telephone conversations of the applicant ’ s wife, Ms Ferda Paksüt , had been intercepted since she had called some suspected members of the aforementioned organisation and had talked about the case concerning the request for dissolution of the Adalet ve Kalkınma Partisi (“AKP”, Justice and Development Party ), which had been pending before the court. In this connection , her statements had been taken by the prosecuting authorities. The Chief Public Prosecutor noted that the applicant had also talked to the same suspects. Referring to Articles 135 § 2 and 135 § 6 of the Code of Criminal Procedure, the Chief Public Prosecutor stated that he had sent the decisions and reports concerning the interception of telephone conversations and the files containing the telephone conversations to the Constitutional Court.

On 4 May 2009 the applicant filed a request with the President of the Constitutional Court asking for a copy of the transcripts containing his telephone conversations which had been attached to the Istanbul Chief Public Prosecutor ’ s letter. On 29 May 2009 his request was dismissed on the ground that a criminal complaint had been filed against him for providing third parties with detailed information about a number of cases under deliberation in the Constitutional Court, including the case concerning the AKP.

On an unspecified date the applicant made a public declaration calling upon the Presidency of the Constitutional Court to promptly commence an inquiry about the allegations against him.

The case file reveals that on 6 May 2009 an inquiry under Article 55 of Law on the Establishment and Judgment Procedures of the Constitutional Court (Law no. 2949 of 10 November 1983) and Article 24 of the Rules of Procedure of the Constitutional Court was opened against the applicant. The Constitutional Court designated one of its members, whose identity was to remain confidential, to conduct a preliminary examination and consequently to prepare a report on the inquiry.

On 5 June 2009, the applicant submitted a petition addressed to the President of the Constitutional Court stating that the evidence relied on to institute a judicial process against him was unlawful. In his letter he also emphasised that the preliminary examination had to be concluded within a maximum of forty five days in the light of the relevant provisions of Law no. 4483 on the Trial of State Employees and other Civil Servants. Furthermore, he repeated his request for a copy of the transcripts of the taped phone calls. The applicant did not receive a reply to his petition.

In a report dated 13 July 2009 the investigating member of the Constitutional Court concluded that in addition to the Istanbul Chief Public Prosecutor ’ s letter dated 15 October 2008, other documents, evidence and information concerning the interception of the applicant ’ s communications, if there were any, must be requested from the relevant domestic authorities .

On the basis o f this report, on 16 July 2009 the Constitutional Court concluded that Mr Paksüt had deliberately disclosed confidential information regarding the court ’ s deliberations to certain members of the press. H owever, it decided not to bring any proceedings against him on the ground that the collected evidence was considered to have contravened Articles 135 and 138 of the Code of Criminal Procedure (Law no. 5271) as he had had his telephone conversations intercepted without any court decision. The court voted 10 to 1 against any investigation into Mr Paksüt , with one member, Mr S.K., dissenting.

The applicant was informed of the Constitutional Court ’ s decision on 17 July 2009. The decision was also published on the official web-site of the Constitutional Court for two consecutive days, including the dissenting opinion in which Mr S.K. stated that “at the deliberation s which took place on 16 July 2009, the members of the Constitutional Court had expressed sadness over the inability to launch an investigation into the applicant as a result of a legal loophole”.

B. Relevant domestic law and practice

1. The Constitution

Article 22 of the Constitution, as amended on 17 October 2001, reads:

“Everyone has the right to freedom of communication.

Secrecy of communication is fundamental.

Unless there exists a decision duly taken by a judge on one or several of the grounds of national security, public order, prevention of crime, protection of public health and morals, or protection of the rights and freedoms of others, or unless there exists a written order of an agency authorised by law in cases where delay is prejudicial, again on the above-mentioned grounds, communication shall not be impeded nor its secrecy violated. The decision of the authorised agency shall be submitted for the approval of the judge with jurisdiction within 24 hours. The judge shall announce his decision within 48 hours from the time of seizure; otherwise, the seizure order shall automatically be lifted.

Public establishments or institutions where exceptions to the above may be applied are defined by law.”

2. The new Code of Crimina l Procedure (Law no. 5271 of 25 March 2005)

Under the new Code of Criminal Procedure the interception of electronic correspondence is regulated by the following provisions:

Article 135

“(1) The judge or, in cases where a delay would be detrimental, the public prosecutor, may decide to locate, listen to or record the electronic correspondence or evaluate the mobile phone records of a suspect or accused if, during an investigation or prosecution conducted in relation to a crime, there is strong suspicion that the crime has been committed and there is no other means of obtaining evidence. The public prosecutor shall submit his decision immediately to the judge for his approval and the judge shall make a decision within 24 hours. Upon the expiry of this period or if the judge withdraws approval, the measure shall be lifted by the public prosecutor immediately.

(2) The suspect ’ s or accused ’ s communication with individuals who are entitled to refrain from acting as a witness shall not be recorded. In cases where this circumstance has been revealed after the recording, the recorded material shall be destroyed immediately.

(3) The decision to be rendered in accordance with the provisions of paragraph (1) shall state the type of crime attributed, the identity of the individual upon whom the measure is to be applied, the means of communication, the telephone number, or the code that makes it possible to identify the connection of the communication, the nature of the measure, its scope and its duration. The decision to apply the measure may be valid for a maximum of three months; this period may be extended once. However, for crimes committed within a criminal organisation , the judge can decide to extend the period several times, each time for no longer than one month, if deemed necessary.

(4) The location of a mobile phone may be established upon the decision of the judge or, in cases where a delay would be detrimental, by the decision of the public prosecutor, in order to be able to apprehend the suspect or the accused. The decision related to this matter shall state the number of the mobile phone and the duration of the locating process. The locating process shall be conducted for a maximum of three months; this period may be extended once.

(5) Decisions rendered and actions taken in accordance with the provisions of this article shall be kept confidential while the measure is being implemented.

(6) The provisions contained in this article relating to the monitoring, recording and evaluation of mobile phone records shall only be applicable to the crimes listed below:

a) The following crimes in the Turkish Criminal Code;

1 Migrant smuggling and human trafficking (Articles 79 and 80),

2. Deliberate killing (Articles 81, 82 and 83),

3. Torture (Articles 94 and 95),

4. Sexual assault (Article 102, excluding paragraph 1),

5. Sexual abuse of children (Article 103),

6. Producing and trading narcotics or stimulants (Article 188),

7. Counterfeiting money (Article 197),

8. Forming a criminal organisation (Article 220, excluding paragraphs 2, 7 and 8),

9. Prostitution (Article 227, paragraph 3),

10. Corruption in bidding for tenders (Article 235),

11. Bribery (Article 252),

12. Laundering of proceeds obtained through criminal activity (Article 282),

13. Armed criminal organisations (Article 314) or supplying such organisations with weapons (Article 315),

14. Crimes against state secrets and espionage (Articles 328, 329, 330, 331, 333, 334, 335, 336 and 337),

b) Arms smuggling as defined in the Act on Guns, Knives and Other Tools (Article 12),

c) Embezzlement as defined in the Act on Banks (Article 22, paragraphs 3 and 4),

d ) Crimes as defined in the Act on Combating Smuggling which carry imprisonment as punishment,

e) Crimes as defined in the Act on the Protection of Cultural and Natural Heritage (Articles 68 and 74),

(7) No one may listen to or record the electronic communications of another person except in accordance with the principles and procedures defined in this Article.”

Article 138

“Coincidental evidence

(1) If a search or seizure reveals evidence that is not connected to an ongoing investigation or prosecution but creates reasonable grounds for suspecting that another criminal offence has been committed, those items shall be secured immediately and the public prosecutor shall be informed thereof.

(2) If during the interception of communication, a piece of evidence is obtained that is not related to an ongoing investigation or prosecution but which raises the suspicion that a crime listed in Article 135 § 6 has been committed, this evidence shall be secured and the public prosecutor ’ s office shall be notified immediately.”

3. The case-law of the Court of Cassation

By a judgment dated 3 July 2007 (decision no. 2007/167, on file no. 2007/5-23) in a case concerning the interception of a suspect ’ s t elephone calls, the Grand Chamber of the Court of Cassation decided that the records of the defendant ’ s telephone conversations were to be regarded as unlawful evidence, since they had been obtained without the prior authorisation of a judge, and that therefore they could not be admitted to the investigation file.

In this case, the defendant ’ s alleged involvement in a crime was discovered by coincidence, namely, during the lawful interception of another suspect ’ s telephone conversations, and the police informed the public prosecutor ’ s office of it after recording all the defendant ’ s telephone conversations.

COMPLAINTS

The applicant complains of a violation of his rights protected by Articles 6 and 8 of the Convention.

The applicant complains that his right to a fair hearing under Article 6 of the Convention was violated for the following reasons:

‑ the Ergenekon prosecutors failed to promptly notify the Constitutional Court that the communications of the applicant w ere being monitored .

‑ throughout the preliminary examination, the applicant was not given an opportunity to make his defence submissions;

‑ the transcript of a telephone conversation between the applicant and his wife which took place on 30 July 2008 had been included in the preliminary investigation report ;

‑ the publication of the dissenting opinion of Mr S.K. on the official web-site of the Constitutional Court impeded the principle of secrecy of the Constitutional Court ’ s deliberations.

The applicant alleges under Article 8 of the Convention that his right to private life was breached as a result of the interception of his telephone conversations and of the failure of the Ergenekon prosecutors to inform the competent investigation authority, in this case the Constitutional Court, without delay.

QUESTION S TO THE PARTIES

1 . May the applicant claim to be a victim of a violation of his rights under Article 8 of the Convention, within the meaning of Article 34?

2. If so, h as there been an interference with the applicant ’ s right to respect for h is private life or correspondence within the meaning of Article 8 § 1 of the Convention , and was that interference in accordance with the law and justified in terms of Article 8 § 2?