Information Note on the Court’s case-law 197

June 2016

KarabeyoÄŸlu v. Turkey - 30083/10

Judgment 7.6.2016 [Section II]

Article 8

Article 8-1

Respect for correspondence

Respect for private life

Use in disciplinary proceedings of data obtained from telephone tapping in criminal proceedings: violation

Facts – From 2008 the applicant, a judge, had his telephone lines monitored in the context of a criminal investigation into an illegal organisation to which he was suspected of belonging or providing assistance and support. In December 2009 the public prosecutor gave a decision not to prosecute on the basis of the evidence gathered. He also gave orders for the material obtained during the surveillance operation to be destroyed, for a report to be drawn up to that effect and for the persons concerned to be notified of the surveillance measure. Accordingly, the telephone-tapping records and the devices on which the recordings had been made were destroyed.

The applicant was also the subject of a disciplinary investigation, and the material gathered during the monitoring of his telephone lines was used for that purpose.

Law – Article 8

(a) In the context of the criminal investigation – The monitoring of the applicant’s telephone lines had interfered with the exercise of his right to respect for his private life and correspondence. There had been an accessible and foreseeable legal basis for the measures complained of.

The phone-tapping operations in respect of the applicant had been ordered on the basis of suspicions that could be regarded as objectively reasonable, and had been carried out in accordance with the relevant legislation. In particular, the surveillance measure in question had been authorised by a court with a view to preserving national security and preventing disorder; the rules and regulations containing strict conditions for the implementation of the measure had been scrupulously observed; the information thus obtained had been processed in compliance with the legal requirements; and lastly, the information had been destroyed within the statutory time-limit after the public prosecutor had decided not to prosecute.

The applicant had been sent a note within the required time-limit informing him of the procedure undertaken and the measure applied, and had also been sent a copy of the material in the file concerning him.

In conclusion, the interference with the applicant’s right had been necessary in a democratic society in the interests of national security and for the prevention of disorder and crime.

Conclusion : no violation (unanimously).

(b) In the context of the disciplinary investigation – The material obtained during the monitoring of the applicant’s telephone lines had also been used in the disciplinary proceedings against him.

Although, following the December 2009 decision not to prosecute, the public prosecutor in charge of the criminal investigation had destroyed the recordings in question, a copy had indisputably remained in the possession of the judicial inspectors, who had used the relevant material in the context of the disciplinary investigation opened in respect of the applicant and had not destroyed it until March 2010, at the end of this second investigation. The relevant legislation had thus been breached in two respects: the information had been used for purposes other than the one for which it had been gathered, and had not been destroyed within the fifteen-day statutory time-limit after the criminal investigation had ended.

These aspects were specifically covered by provisions of criminal law that appeared, on the face of it, to afford adequate protection of the right to private life in the context of the case under examination. A prison sentence could be imposed in the event of failure by public officials to destroy data within fifteen days after the end of the investigation where this requirement applied; and in such cases, a prosecution could be brought even in the absence of a criminal complaint.

Nevertheless, no investigation had been opened on that account in the present case, and the applicant had had no other means of redress available.

Accordingly, during the disciplinary investigation in respect of the applicant, none of the applicable statutory provisions had been observed by the national authorities. The Court thus concluded that the interference with the applicant’s right to respect for his private life had not been “in accordance with the law” as far as the disciplinary proceedings against him were concerned.

Conclusion : violation (unanimously).

The Court also held, unanimously, that there had been a violation of Article 13 of the Convention because it did not appear from the material before it that a domestic remedy was available for securing a review of whether the interference with the applicant’s right to respect for his private life was compatible with the Convention requirements, in relation to either the criminal or the disciplinary investigation.

Article 41: EUR 7,500 for non-pecuniary damage; claim for pecuniary damage dismissed.

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

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