Communicated on 25 September 2014
SECOND SECTION
Application no. 37783/08
İshak Şadi ÇARSANCAKLI and others
against Turkey
lodged on 28 July 2008
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicant İ. S. Çarsancaklı (hereinafter “the first applicant”) is a lawyer and the remaining applicants, C. Atakul (hereinafter “the second applicant”) and A. Karahan (hereinafter “the third applicant”), are businessmen. They performed various duties at the Human Rights Association for Oppressed People (Mazlumder).
On 16 June 1999 the Public Prosecutor at the Ankara State Security Court requested the court to issue a warrant authorising the search of the headquarters and branches of the Mazlumder, in order to search for evidence concerning certain acts of the association, allegedly carried out against the “integrity of the country and the secular regime”. On the same day the court issued a search warrant, which provided as follows:
“...In accordance with Article 13 of the Code on the Establishment and Procedures of State Security Courts and Articles 86, 94, 95, 96, 97 and 98 of the Code of Criminal Procedure and in line with the request of the Public Prosecutor, it has been decided to carry out a search of the headquarters and all branches of the Mazlumder, during day time and on one occasion only, for the purpose of searching for evidence.”
On 18 June 1999 the Public Prosecutor at the Ankara State Security Court communicated the court decision to the Ministry of the Interior for execution. On the same day, the Public Prosecutor sent an additional letter to the same Ministry which read as follows:
“Pursuant to Article 86, and subsequent articles of the Code of Criminal Procedure, and considering that this is a situation where delay would be detrimental, the Public Prosecutor’s office has also decided to carry out a search of the homes and offices of the General Director and board members of the Association.”
On the same day the Under-Secretary of the Ministry of the Interior sent a letter to the governors of 80 provinces, which read as follows:
“Pursuant to the Ankara State Security Court’s decision of 16 June 1999 and the Public Prosecutor’s decision of 18 June 1999, in accordance with Article 86 and subsequent articles of the Code of Criminal Procedure, and in the light of all the information and evidence showing that Mazlumder is acting against the integrity of the country and the secular regime, it is requested that a search be carried out in its headquarters and branches, as well as at the homes and offices of the General Director and board members, which includes the homes and offices of the board members of the branches.”
On 19 June 1999 police officers carried out a simultaneous search of all the premises mentioned in the letter of the Under-Secretary of the Ministry, including the applicants’ homes and offices. The search of the first applicant’s law office was carried out without the presence of the public prosecutor or a representative of the Bar Association. A copy of the record of the search was not given to the applicants due to the confidentiality order on the investigation file.
On 25 November 2002 the applicants lodged a compensation action in respect of the unlawful search before the Civil Court of First Instance against the Ministry of Justice and Ministry of the Interior.
On 14 April 2006 the Fatih Civil Court of First Instance rejected the applicants’ claims on the ground that the search had not been unlawful. The applicants appealed against the decision to the Court of Cassation.
On 15 November 2007 the Court of Cassation rejected the appeal. The decision was served on the applicants on 28 January 2008.
COMPLAINTS
The applicants complain under Article 8 of the Convention that the search carried out was unlawful.
QUESTIONS TO THE PARTIES
Has there been an interference with the applicants’ right to respect for their private life and home, within the meaning of Article 8 § 1 of the Convention?
If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?
Were the procedural safeguards laid down in the Attorneys’ Act and the Code of Criminal Procedure complied with in the present case?
The parties are also requested to submit all documents pertaining to the searches and the subsequent proceedings conducted by the national courts, and information about the duties of the applicants’ within the organisation.
Appendix
İshak Şadi ÇARSANCAKLI born in 1963, Cengizhan ATAKUL born in 1959 and represented by İ.Ş. ÇARSANCAKLI, Ahmet KARAHAN born in 1963 and represented by İ.Ş. ÇARSANCAKLI.
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