Communicated on 22 September 2014
SECOND SECTION
Application no. 14704/12
Mihriban KIRDÖK and Meral HANBAYAT against Turkey
lodged on 12 March 2012
STATEMENT OF FACTS
The applicants, Mrs Meral Hanbayat and Mrs Mihriban Kırdök, are Turkish nationals, who were born in 1980 and 1958 respectively and live in Istanbul. They are represented before the Court by Mrs S.Yalçın Elban and Mr H. K. Elban lawyers practising in Antalya.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
The applicants are lawyers by profession. They practise in the same office as Ümit Sisligün, who is also a lawyer.
On 7 April 2010 Ümit Sisligün visited his client H.A., who was being detained in the İmralı Prison with a number of other inmates. Before Mr Sisligün conducted his visit, another visit had taken place in a separate room of the same prison to Abdullah Öcalan, who was the leader of the PKK (Workers’ Party of Kurdistan, an illegal organisation), by his lawyers.
In 2011 an investigation was launched in order to detect and reveal secret communication arrangements within the PKK and the KCK (the Kurdistan Communities Union, an illegal organisation). As a part of the investigation police officers carried out simultaneous operations in 16 cities. On 21 November 2011 a judge from the committee of three judges of the Istanbul 11th Assize Court issued the following order in respect of Ümit Sisligün:
“(...) as any delays would be detrimental, it is decided to arrest the above-mentioned member of the organisation, in accordance with Articles 20 and 21 of the Turkish Constitution and Articles 117, 119, 127 and 128 of the Code of Criminal Procedure to conduct a body search of him and on the persons accompanying him when he is arrested, to conduct a search during the day (and during the night if it is necessary under Article 118 of the Code of Criminal Procedure) at the addresses mentioned above and their annexes, and to conduct a body search of the persons who are present at the addresses and, if any, in the cars he drives.”
On 22 November 2011 the police arrested Ümit Sisligün at his home.
On the same day, the police executed the search warrant in Ümit Sisligün’s office, which he shared with the applicants. The search was conducted in the presence of the public prosecutor, a representative of the Istanbul Bar Association, and the applicant Meral Hanbayat.
At the end of the search the police made and took away with them a copy of the entire data in the computer hard disk that was jointly used by all the lawyers in the office. The portable hard disk which belonged to the applicant Meral Hanbayat was also copied and subsequently seized by the police. The search and seizure report was signed by those present, including the applicant Meral Hanbayat. However, she also added her reservations in the report and objected to the copying of the computer disk which was jointly used by all lawyers in the office. She also added that the portable drive seized belonged to her and that the search warrant should have been issued by the committee of three judges of the Assize Court and not only by one of its number.
On 23 November 2011 the two applicants applied to the Assize Court. They informed the Assize Court that they were representing their colleague Ümit Sisligün, and asked for the court order of 21 November 2011 to be annulled. In their application they also requested the immediate return or destruction of the data seized during the search which did not belong to Ümit Sisligün. It was also highlighted that the search warrant had not been issued by the Assize Court, but by a single judge acting on behalf of the court and thus contrary to Article 58 of the Attorney’s Act. They further complained that the subject matter of the search had not been specified in the search warrant, which meant that it gave the police too wide a discretion. The applicants did not receive any answer from the Assize Court in respect of their application.
On 3 April 2012 the Istanbul Public Prosecution Office submitted a bill of indictment to the Assize Court, accusing Ümit Sisligün of communicating information between the illegal organisations PKK and KCK by visiting Abdullah Öcalan on 7 April 2010, and of aiding the closed communication network within the organisations. A criminal case was brought against him before the Istanbul Assize Court. The case is still pending before that court.
B. Relevant domestic law
Relevant Parts of the Code of Criminal Procedure
“Section 130:
(1) Attorneys’ offices shall only be searched with a court decision and in connection with the incident that is indicated in the decision and under the supervision of the public prosecutor. The President of the Bar Association or an attorney representing him or her shall be present at the time of search.
(2) If the attorney whose office is searched, or the President of Bar Association or an attorney representing him, objects to the search by alleging that the items to be seized at the end of the search relate to the professional relationship between the attorney and his clients, then those items shall be put in a separate envelope or a package and sealed by the participants. In the investigation phase the Magistrates’ Court, and in the trial phase the judge or the trial court may be requested to deal with the matter. If the judge establishes that the seized items concern the professional relationship between the attorney and his or her client, then those items shall be immediately returned to the attorney and the record concerning the seizure shall be destroyed. The decisions mentioned in this subparagraph shall be issued within 24 hours.”
COMPLAINTS
The applicants complain under Article 8 of the Convention that the search carried out in their law firm was unlawful because the search warrant was issued only by a single judge of the Assize Court not by the committee of three judges, contrary to the provisions of the Attorneys’ Act. Moreover, the search warrant did not specify the subject matter of the search which meant that all their documents, including those of their clients, were searched. They further maintain that their attorney-client privilege was violated because a computer which contained documents relating to their clients was copied and that copy was seized even though it was not relevant for the investigation in question.
The applicants also complain under Article 13 of the Convention that there was no effective remedy at their disposal for their complaints under Article 8 of the Convention.
QUESTIONS TO THE PARTIES
1. As regards the search conducted in the applicants’ law firm and the seizure of the data in their computer, has there been an interference with the applicants’ right to respect for their private life, home or correspondence, 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, was the search warrant issued and executed in accordance with the relevant provisions of Code of Criminal Procedure and the Attorneys’ Act?
2. 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 applicants have at their disposal an effective domestic remedy for their complaints under Article 8 of the Convention, as required by Article 13 of the Convention?
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