Communicated on 22 September 2014
SECOND SECTION
Application no. 23897/12
Ümit SİSLİGÜN
against Turkey
lodged on 23 February 2012
STATEMENT OF FACTS
The applicant, Mr Ümit Sisligün, is a Turkish national, who was born in 1973 and lives in Istanbul. He is represented before the Court by Mr M.A. Kırdök, Mr H.K. Elban and Ms M. Hanbayat, lawyers practising in Istanbul.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a lawyer by profession.
On 7 April 2010 the applicant visited his client H.A. who was being detained in the İmralı Prison with a number of other inmates. Before the applicant 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. After that visit had ended, the applicant was admitted to the visiting room with his client H.A. He did not take any notes as regards the content of his conversation with his client. Subsequently, he left the prison without making any other visits.
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 part of that 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 the applicant:
“(...) 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 of 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 at around 7.00 a.m. the police arrested the applicant at his home. He was taken into detention at the Istanbul Police Department’s Anti-Terror Branch.
The applicant was informed about the offence of which he stood accused, but was not informed of the reasons of his arrest until 25 November 2011. The investigation was classified as “confidential” by court order, which meant that the applicant’s lawyers were unable to examine the case file.
Following his arrest the police searched the applicant’s flat which he shared with five other flatmates. The police copied the data in the computer jointly used by the applicant and his flatmates. A copy of the search report was not given to the applicant on account of the confidentiality order concerning the investigation.
On the same day, the police executed the search warrant at the applicant’s office, which he shared with three other lawyers. 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 M.H., one of the lawyers practising in the office, was copied and seized by the police. The search and seizure report was signed by those present, including M.H. 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 applicant’s lawyers applied to the Assize Court for the court order of 21 November 2011 to be annulled, and asked for the applicant to be released. They maintained that the reason for the applicant’s arrest had been unknown to them until they saw the news on television about the arrests which had taken place in connection with the visits to Abdullah Öcalan by his lawyers in İmralı Prison. They argued that the applicant had not conducted such a visit; he had only visited his client at the prison, and there had been no reason to arrest and investigate him for conducting his professional activity. They further maintained that the confidentiality order had precluded them from accessing the investigation file and from objecting to the arrest. They complained that the principle of the equality of arms had not been respected. They also objected to the search warrant and argued that it had been issued by a single judge acting on behalf of the Assize Court and was thus contrary to Article 58 of the Attorney’s Act, that the subject matter of the search had not been specified in the search warrant and that as a result the police had been given a very wide discretion, and finally that the data belonging to the other lawyers had also been seized during the search of the office. The applicant did not receive any answer from the Assize Court in respect of this application.
On 25 November 2011 the applicant was interrogated at the Istanbul Prosecution Office where he was informed of the accusations against him. He stated that he had visited his client H.A. in İmralı Prison on the same day the lawyers of Abdullah Öcalan were visiting the latter; however, he did not have any representative relationship with Abdullah Öcalan. He argued that he must have been arrested by mistake. The applicant’s lawyer also maintained that the search warrant was unlawful as it had been issued by a single judge of the Assize Court.
On 26 November 2011 the applicant was brought before the Istanbul 11th Assize Court. He maintained that he had not visited Abdullah Öcalan and that he had no connections with any illegal organisation. The Istanbul 11th Assize Court ordered the release of the applicant on the ground of insufficient evidence against him. He was released at midday.
On 3 April 2012 the İstanbul Public Prosecution Office submitted a bill of indictment to the Assize Court, accusing the applicant of communicating information between the illegal organisations PKK and the KCK by visiting Abdullah Öcalan on 7 April 2010, and of aiding the communication network within the organisations. The criminal proceedings brought against the applicant before the İstanbul Assize Court are still pending before that court.
B. Relevant domestic law
Relevant parts of the Attorney’s Act
“Section 58:
Investigations into activities of lawyers for offences connected with their duties as lawyers, or with their duties within the Union of Turkish Bar Associations and within the organs of the local Bars, shall be carried out by the local prosecutor and after permission has been sought from the Ministry of Justice.
Offices and homes of lawyers may only be searched with a decision of a court and under the supervision of the prosecutor and a representative of the Bar Association. No body searches may be carried out on a lawyer except for in flagrante delicto cases and for offences falling within the jurisdiction of Assize Courts.”
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 applicant complains under Article 5 § 1 of the Convention that he was arrested in the absence of a reasonable suspicion of having committed the offence of which he stood accused. He maintains that he did not have any connection with the incidents which occurred in İmralı Prison, and submits that the fact that he visited his own client on the same day of the incidents cannot constitute a reasonable suspicion.
The applicant also complains under the same Article that his arrest was arbitrary and unlawful because the rules for investigating lawyers in relation to their professional conduct were not respected. He argues, in particular, that the prior approval of the Ministry of Justice was not obtained.
The applicant complains under Article 5 § 2 of the Convention that he was not promptly informed of the reasons for his arrest.
The applicant complains under Article 5 § 3 of the Convention about the excessive duration of his detention of 4 days and 5 hours.
He complains under Article 5 § 4 of the Convention that his application before the Istanbul Assize Court against his arrest was not taken into consideration by the court.
The applicant complains under Article 8 of the Convention that the search carried out in his home and law firm were unlawful. In particular the search warrant was issued by only one judge of the Assize Court and 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 and, as a result, all his belongings, including his confidential legal documents, were searched.
The applicant complains under Article 13 of the Convention that there was no effective remedy at his disposal for his complaint concerning Article 8 of the Convention, as his application against the search order was not reviewed by the domestic courts.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, did the deprivation of liberty fall within paragraphs (a), (b) or (c) of this provision?
Were the applicable rules for investigating lawyers concerning their professional conduct respected in this case? Your Government are requested to respond to this question with reference to the provisions of the Attorneys’ Act which regulates, among other things, the issue of obtaining authorisation from the Ministry of Justice.
2. Was the applicant informed promptly of the reasons for his arrest, as required by Article 5 § 2 of the Convention? Your Government are requested to submit to the Court documentary evidence in support of their replies to this question.
3. After his arrest, was the applicant brought promptly before a judge or other officer authorised by law to exercise judicial power, as required by Article 5 § 3 of the Convention?
4. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his arrest, as required by Article 5 § 4 of the Convention?
5. As regards the search conducted in the applicant’s home and office and the seizure of the data in 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? To that end, do the procedural safeguards laid down in the Code of Criminal Procedure also apply to the search and seizure of electronic data and, if so, were they complied with in the present case?
Concerning the search of law firms, was the search warrant issued and executed in accordance with the relevant provisions of the Code of Criminal Procedure and of the Attorneys’ Act?
6. 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?
7. 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?
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