Information Note on the Court’s case-law 204

February 2017

İrfan Güzel v. Turkey - 35285/08

Judgment 7.2.2017 [Section II]

Article 13

Effective remedy

Lack of response to concerns raised by an accused about the legality of phone-tapping measure: violation

Facts – The applicant was tried by an Assize Court in 2008 and 2009. The prosecution based its case on phone tapping carried out on the applicant’s tel ephone. The case file transmitted to the applicant contained a transcription of the tapped calls, but no information on any judicial authorisation of the tapping. In his defence the applicant asked about this absence of authorisation, in vain: his question remained unanswered during the hearings and in the judgment convicting him.

Law

Article 8: The applicant’s complaints concerning the lawfulness of the tapping of his telephone calls were unfounded. The documents provided showed that the tapping had indeed been authorised by judicial decision and that the necessity of the measure had been assessed by the courts. There had been nothing of an arbitrary or unreasonable nature.

Conclusion : no violation (unanimously).

Article 13 in conjunction with Article 8: Du ring his trial the applicant had attempted to challenge the lawfulness of the phone tapping, but his concerns had been ignored.

Under the domestic legislation, where an investigation was shelved, the Principal State Prosecutor was required to inform the pe rson in question within a fortnight of the termination of investigations and destroy all the data obtained through the telephone tapping.

However, the same legislation appeared to be silent on cases which had been brought to court.

Admittedly, the applicant had been able to contest, in adversarial proceedings, the content of the phone calls tapped on the basis of the judicial authorisations issued. But the right to contest the transcriptions, which was part of the assessment of the a pplicant’s criminal responsibility for the offences charged, was a totally separate issue from that of his ability to challenge the decisions to authorise the phone tapping.

The case file did not show that the applicant was informed of the existence of the judicial decisions authorising the phone tapping in question. The Assize Court which tried the applicant never referred to those decisions or replied to his allegation of the lack of judicial authorisation for the tapping.

Moreover, the Government had fai led to produce any examples showing that in similar cases an authority had been empowered to assess retrospectively the compatibility of phone tapping with the criteria of Article 8 of the Convention, in order to provide complainants with appropriate redre ss where relevant.

Conclusion : violation (unanimously).

Article 41: finding of a violation sufficient in itself in respect of non-pecuniary damage; claim for pecuniary damage dismissed.

(See also Roman Zakharov v. Russia [GC], 47143/06, 4 December 2015, Information 191 ; and Cevat Özel v. Turkey , 19602/06, 7 June 2016, Information Note 197 )

© Council of Europe/European Court of Human Rights Th is summary by the Registry does not bind the Court.

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