Communicated on 22 September 2014
SECOND SECTION
Application no. 36032/05
Mustafa ER
against Turkey
lodged on 30 September 2005
STATEMENT OF FACTS
The applicant, Mr Mustafa Er, is a Turkish national, who was born in 1967 and lives in Malatya.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was an officer in the Turkish Armed Forces with the rank of captain.
On 14 July 2004 at 9.10 a.m. he was invited to the office of F.Ç., the intelligence officer of his military unit, where he was questioned in the presence of the head of personnel affairs, F.D. The two officers accused him of conducting unlawful activities, but did not seek to support their accusations with any concrete evidence. During the questioning he was told that he had been born out of wedlock and was also forced to disclose information about his private life. He was asked to write answers to questions such as the date of marriage of his parents, the job his sisters and brothers had, and about their spouses.
Approximately one hour later F.Ç., F.D. and the applicant went to the applicant’s home in a military vehicle. When they entered the flat, F.Ç. went directly to the applicant’s bedroom. F.Ç. took some of the applicant’s books and a piece of paper with the applicant’s handwriting on it. At the end of the search the two officers seized nine books including a copy of the Koran, a dictionary for the Koran, and religious commentary books which were legally disseminated and widely available to the public. Y.Ç., who was a friend of the applicant and was staying at his flat as a guest, witnessed the incident.
Subsequently the applicant was taken to the military compound where he was forced to stay in F.Ç.’s room from 11.30 a.m. to 3 p.m. He was not allowed to go out of the room; he was only allowed to visit the bathroom in the presence of an officer.
The applicant was also forced to sign a report which stated that he had invited the two officers to his flat and that they had decided to search his flat when his friend Y.Ç. had acted suspiciously. Nine books and two small notes had been seized during the search and a list of the seized books was set out in the report.
On the same day F.Ç. ordered that they go back to the applicant’s flat. The applicant was forced to sign a paper in which it was stated that he had voluntarily invited the officers to his home for a second time. In this instance, the applicant’s home was thoroughly searched. Eight further books of a religious nature and a CD were seized. A second report was prepared for the search, where the names of the seized books were listed. They returned to the military compound and the applicant was released at 5 p.m.
The next day, at 5.40 p.m., the applicant was ordered to stay in the military compound until 8.30 p.m. The officers threatened to dismiss him from the Armed forces and asked him to sign a declaration that he had been involved in illegal activities. The applicant refused to sign the paper. However, he was then forced to sign another declaration stating that he had voluntarily invited the two officers, F.Ç. and F.D., to his home for a third visit. They conducted a new search at the applicant’s home at 8 p.m. He was taken back to the military compound and released at 9.15 p.m.
On 16 July 2004 the applicant submitted a written complaint to his military unit regarding the illegal treatment he had been subjected to by the two officers.
On 20 July 2004, a doctor of the applicant’s military unit referred the applicant to the military hospital for “major depressive disorder”. He was diagnosed with acute stress and anxiety disorder, and subsequently given a total of 47 days of sick leave.
On 20 July 2004 the applicant filed a criminal complaint with the Military Prosecution Office against F.Ç. for misconduct.
On 2 August 2004 the applicant also filed a civil case against F.Ç. and F.D. before Polatlı Civil Court of First Instance. He claimed pecuniary damages for the unlawful seizure of his books and non-pecuniary damages for having been insulted and accused by the two officers.
On the same day the applicant filed a separate criminal complaint with the Polatlı Prosecution Office against F.Ç. and F.D. for the offences of trespass, unlawful seizure of his books, insulting the holy book of Islam, and slander. The applicant also complained of his detention in F.Ç.’s room and the search of his home.
On 6 December 2004 the Polatlı Prosecution Office gave a decision of non-jurisdiction ratione materiae on the ground that military courts had the requisite jurisdiction in the matter, and sent the file to the Ankara Military Prosecution Office.
In the meantime, a preliminary criminal investigation was initiated against the applicant for the possession of parts of a book that had been banned by the Chief of General Staff of the Turkish Armed Forces. On 4 November 2004 all but one of the books which had been seized during the searches were given back to the applicant. The remaining book was kept in the military unit as evidence to be used in the criminal investigation against the applicant.
On 31 December 2004 the Military Prosecution Office decided not to instigate criminal proceedings against the applicant.
On 7 January 2005 the applicant applied to the Polatlı Prosecution Office and asked whether any investigation had been carried out into his complaints.
On 10 February 2005 the Chief of General Staff replied to the letter of the applicant of 7 January 2005, and informed the applicant that an administrative investigation was ongoing.
On 5 April 2005 the Chief of General Staff refused to give permission for an investigation to be conducted into the applicant’s complaints on the grounds that filing a criminal case was not necessary.
On 18 April 2005 the applicant objected to the decision of the Chief of General Staff.
On 6 May 2005 the Chief of General Staff sent a reply to the applicant’s letter and stated that the legal authority to decide on the matter was absolute and that there was no possibility to object to that decision.
On 7 June 2005 the applicant filed a criminal complaint against F.Ç. and F.D. one more time before the Military Prosecution Office. By letter of 15 June 2005 the Chief of General Staff reminded him that he had already addressed this matter in his letter of 5 April 2005 where the permission for an investigation had been denied.
COMPLAINTS
The applicant complains under Article 5 of the Convention that his right to liberty was violated on account of having been unlawfully forced to stay in a room for hours and on a number of occasions.
The applicant complains under Article 8 of the Convention that his right to respect for his private life was violated when his private residence was unlawfully searched by his supervisors on three occasions. He alleges that one of those searches was conducted at night time, and that his bedroom was thoroughly searched. The applicant also complains that his privacy was violated by the seizure of his religious books during the illegal searches.
He further complains under the same Article that he was insulted by his supervisors for, inter alia, having been born out of wedlock. He complains that he was forced to write down information about his private life; accused of having conducted illegal activities; forced and threatened to sign declarations; and treated as a criminal in front of his colleagues and neighbours. He maintains that as a result of those incidents he felt emotional discomfort and was referred to the military hospital for treatment.
Finally, the applicant complains under Article 13 of the Convention that he had no effective remedy for his complaints concerning the violation of his rights safeguarded in the Convention.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? If so, did the deprivation of liberty fall within paragraphs (a), (b) or (c) of this provision? Furthermore, what was the legal basis for the applicant’s detention?
2. Has there been an interference with the applicant’s right to respect for his private life or 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? In particular, what was the legal basis for the searches and the seizure of his books carried out in the applicant’s home?
Given the procedural protection of the right to respect for home (see H.M. v. Turkey, no. 34494/97, §§ 25-30, 8 August 2006), do the proceedings carried out into the applicants’ claims meet the requirements of Article 8 of the Convention?
3. Did the applicant have at his disposal an effective domestic remedy for his complaints under Article 8 of the Convention, as required by Article 13 of the Convention?
The parties are requested to provide information concerning the outcome of the compensation proceedings before the Polatlı Civil Court of First Instance.
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