Communicated on 22 September 2014
SECOND SECTION
Application no. 5839/09
Özgün ÖZTUNÇ
against Turkey
lodged on 23 January 2009
STATEMENT OF FACTS
The applicant, Mr Özgün Öztunç, is a Turkish national, who was born in 1974 and lives in Istanbul, where he practises law. He is represented before the Court by Ms M. Aksak Uysal, a lawyer practising in Istanbul.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 13 January 2004 in the framework of an investigation carried out by the Prosecution Office of the Ankara 2nd State Security Court, a search warrant was issued for particular homes and workplaces, including those of a number of lawyers. The court ordered the search to be conducted in accordance with the provisions of the Attorneys’ Act for the lawyers under investigation. The search warrant did not include the applicant’s name or his address.
On the same day the applicant was arrested in his law office situated in a building owned by one of his clients. His office was searched by the police officers and a laptop and a disk which belonged to the applicant were seized as evidence at the end of the search. On 19 February 2004 the seized laptop was delivered back to the applicant by the Prosecution Office.
On 10 January 2005 the applicant applied to the Ministry of Justice, alleging that he had sustained pecuniary and non-pecuniary losses as a result of the unlawful search and the seizure carried out in his law office without a court order. He further maintained that the search and the seizure of his laptop had not been carried out in accordance with the provisions of the Attorneys’ Act.
On 14 January 2005 the Ministry of Justice rejected the applicant’s request, and maintained that the Ministry did not bear any fault and that the applicant had to pursue his claim before the courts if he so wished. It was further notified to the applicant that he could lodge an administrative action against that decision.
On 26 January 2005 the applicant lodged an action with the Istanbul Administrative Court and claimed compensation for pecuniary and non-pecuniary losses. The applicant argued that the search had been carried out in the absence of a court order and had thus been contrary to the provisions of the Code of Criminal Procedure and the Attorneys’ Act. He also argued that the seizure of his laptop for approximately 40 days without any court order had been unlawful.
On 18 October 2005 the Istanbul Administrative Court rendered a decision of non-jurisdiction ratione materiae on the case. The court ruled that the alleged losses had emanated from the preliminary investigation by the Prosecution Office of the State Security Court, which was part of the judicial apparatus entrusted with the duty to carry out judicial acts. It thus held that it did not have jurisdiction to review judicial acts, and concluded that the action should be lodged with the civil courts.
The decision was appealed against by the applicant who pointed to decisions of the Court of Jurisdictional Disputes according to which the public prosecution service was not considered as a judicial authority and the decisions rendered by it could not be regarded as judicial acts. On 26 November 2007 the Supreme Administrative Court upheld the decision of the first instance court and rejected the appeal. The Supreme Administrative Court did not refer to applicant’s arguments in its decision.
On 4 March 2008 the applicant applied for the rectification of the decision. On 7 July 2008 the Supreme Administrative Court rejected the applicant’s request. On 1 August 2008 the decision was served on the applicant.
COMPLAINTS
The applicant complains under Article 8 of the Convention that the search carried out in his law office and the seizure of his computer for some 40 days in the absence of a court order was unlawful and seriously breached his professional confidentiality. He further complains that the search was not carried out in the presence of the public prosecutor and a representative from the Istanbul Bar Association, as required by law.
The applicant complains under Article 6 of the Convention that his requests to hold a hearing before the Supreme Administrative Court during the compensation proceedings were rejected.
The applicant also complains under Article 13 of the Convention that the action lodged to recover his damages was rejected by the courts without a lawful basis, entailing the result that the search and seizure decisions were not subjected to judicial review.
QUESTIONS TO THE PARTIES
1. As regards the search conducted in the applicant’s law office and the seizure of his computer, has there been an interference with the applicant’s right to respect for his 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, were the procedural safeguards laid down in the Attorneys’ Act and the Code of Criminal Procedure complied with in the present case?
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 applicant’s claims meet the requirements of Article 8 of the Convention?
3. Did the rejection to hold a hearing before the Supreme Administrative Court only on financial grounds as laid down under article 17 of the Code Administrative Procedure constitute an infringement of the applicant’s right to a fair trial under Article 6 § 1 of the Convention?
4. Did the applicant have at his disposal an effective domestic remedy for his Convention complaints, as required by Article 13 of the Convention?
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