Turkije veroordeeld door Mensenrechtenhof wegens huiszoeking bij vakbondsman zonder huiszoekingsbevel (en)

Press release issued by the Registrar

CHAMBER JUDGMENT

H.M. v. TURKEY

The European Court of Human Rights has today notified in writing its Chamber judgment¹ in the case of H.M. v. Turkey (application no. 34494/97).

The Court held unanimously that there had been a violation of Article 8 (right to respect for private life) of the European Convention on Human Rights, on account of the inadequacy of the investigation into the applicant’s complaint that he had been the victim of an unauthorised police search.

The Court concluded that the finding of a violation in itself constituted sufficient just satisfaction for the non-pecuniary damage sustained by the applicant. In application of Article 41 (just satisfaction) of the Convention, it awarded the applicant 1,000 euros (EUR) for costs and expenses. (The judgment is available only in French.)

• 1. 

  Principal facts

The applicant, H.M., is a Turkish national who was born in 1958 and lives in ?zmir (Turkey). At the relevant time he was a primary-school teacher and one of the leaders of the local branch of E?itim-Sen, a trade union for employees in public-sector education. 

On several occasions between 1995 and 1996 the applicant was prosecuted for criminal offences or instituted proceedings against police officers. In August 1995, the applicant and other trade unionists demonstrated without permission in ?zmir; in September 1995, he was assaulted by police officers in front of the law courts, where he had gone in order to attend a trial involving his comrades, and subsequently lodged a complaint about that violence; in addition, he was prosecuted on two occasions, in December 1995 and February 1996, for having taken part in unauthorised meetings or demonstrations, and was acquitted in both cases.  

On 15 March 1996, at about 12.30 a.m., four individuals in civilian clothing, who introduced themselves as police officers, went to the applicant’s home, where his wife and two sons were also present. Accusing the applicant and one of his sons of illegal activities and of harbouring criminals, they searched the house without presenting a search warrant. Considering that he had been subjected to an unlawful search, the applicant lodged a complaint on the same day; a witness statement was taken from him immediately. On 20 March 1996 the public prosecutor ruled that

there was no case to answer, given the “absence of an act constituting any offence”, on the ground that, according to information provided by various police departments, no search of property or persons had been carried out at the applicant’s home. The latter appealed unsuccessfully against that decision.

In June 2003, after the European Court of Human Rights had communicated this application to the Turkish Government, the public prosecutor invited the police authorities concerned to identify the officers likely to have conducted the search of the applicant’s home. The authorities replied that the alleged incident was not imputable to members of the security forces, that the investigations previously carried out into the matter had resulted in a finding that there was no case to answer, and that, in the meantime, the statutory limitation period had expired. The applicant was accordingly informed that his case had been discontinued.

• 2. 

  Procedure and composition of the Court

The application was lodged with the European Court of Human Rights on 4 October 1996 and declared partly inadmissible on 1 April 2003.

Judgment was given by a Chamber of seven judges, composed as follows:

Nicolas Bratza (British), President,

Josep Casadevall (Andorran),

Giovanni Bonello (Maltese),

Riza Türmen (Turkish),

Kristaq Traja (Albanian),

Stanislav Pavlovschi (Moldovan),

Lech Garlicki (Polish), judges,

and also Lawrence Early, Section Registrar.

• 3. 

  Summary of the judgment²

Complaint

The applicant complained of an infringement of his right to respect for his home, on account of an unauthorised search allegedly carried out by the police. He relied on Article 8 of the Convention.

Decision of the Court

Article 8

The Court reiterated that the essential object of Article 8 was to protect the individual against arbitrary interference by the public authorities. However, it could also imply an obligation on the authorities to conduct an investigation where that was the only way to shed light on the events in question, to maintain public confidence and to prevent any appearance of collusion in or tolerance of unlawful acts by the public authorities.

The case file contained no tangible evidence enabling the Court to conclude with certainty that a search had been carried out at the applicant’s home. The question remained whether the inability to reach any such conclusion resulted from a failure by the Turkish authorities to respond adequately to the applicant’s allegations.

In that respect the Court considered that, having regard to the applicant’s past, during which he had been prosecuted several times on account of his trade-union activities and had made accusations against members of the local police force, the prosecutor, who was certainly aware of that situation, might have been expected to examine whether, given the applicant’s tendency to challenge the status quo, he was likely to have been subjected to acts of intimidation.

In any event, it would have sufficed for the prosecutor to take witness statements from members of the applicant’s family in order to substantiate the “arguable” nature of the allegations before him, given that those witness statements, as submitted to the Court, appeared sincere, credible and consistent. Yet no such action had been taken, and the doubt raised in the case had not been dispelled by the alleged investigation, which the prosecutor had closed in five days. Accepting without reservation the information submitted by the police authorities, that officer had concluded that, contrary to what the applicant alleged, no State agent had been involved in the alleged incident.

Having regard to the obligation to carry out an investigation laid down by Article 8, the Court considered that, once application had been made to it, the public prosecution service ought to have examined the applicant’s complaint in such a way as to demonstrate at least a willingness to establish the facts, then to identify those responsible.

In those circumstances, the Court considered that the applicant could claim to be a victim of a failure to protect his right to respect for his home and concluded that there had been a violation of Article 8.

***

The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Press Contacts 

Emma Hellyer (telephone: 00 33 (0)3 90 21 42 15)

Stéphanie Klein (telephone: 00 33 (0)3 88 41 21 54)

Beverley Jacobs (telephone: 00 33 (0)3 90 21 54 21)

The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.