The application concerns the alleged unlawfulness of an initial search of the applicant’s house carried out by police officers prior to its actual search pursuant to a warrant and the alleged unfairness of the ensuing criminal proceedings on account of the use by the trial court of allegedly unlawful and unreliable evidence obtained during the search to convict him.
CASE OF YEŞİL v. TURKEY
(Application no. 28349/11)
19 October 2021
This judgment is final but it may be subject to editorial revision.
In the case of Yeşil v. Turkey,
The European Court of Human Rights (Second Section), sitting as a Committee composed of:
Aleš Pejchal, President,
Marko Bošnjak, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to:
the application (no. 28349/11) against the Republic of Turkey lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Ali Haydar Yeşil (“the applicant”), on 28 February 2011;
the decision to give notice to the Turkish Government (“the Government”) of the application;
the parties’ observations;
Having deliberated in private on 21 September 2021,
Delivers the following judgment, which was adopted on that date:
1. The application concerns the alleged unlawfulness of an initial search of the applicant’s house carried out by police officers prior to its actual search pursuant to a warrant and the alleged unfairness of the ensuing criminal proceedings on account of the use by the trial court of allegedly unlawful and unreliable evidence obtained during the search to convict him.
2. The applicant was born in 1983 and was serving a prison sentence in Tunceli at the time the present application was lodged. The applicant, who had been granted legal aid, was represented by Mr Ö.U. Kaplan, a lawyer practising in Tunceli.
3. The Government were represented by their Agent, Mr Hacı Ali Açıkgül, Head of the Department of Human Rights of the Ministry of Justice of the Republic of Turkey.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 25 June 2007, following an anonymous tip-off, a search was carried out in the house of a certain U.M., who was suspected of being a member of an illegal organisation. During the search a note containing the names of the applicant and of a certain B.A. and E.S. was found in the battery compartment of a walkie-talkie found in the drum of a washing machine.
6. On the same day the Tunceli Chief Public Prosecutor’s Office issued a search warrant in respect of the applicant’s house. A single search was to be carried out, at night-time, in the house where the applicant lived with his parents.
7. On 26 June 2007 at 12.50 a.m. the police arrived at the applicant’s house and, as his parents were not at the house at the time, they were contacted and asked to come and unlock the door to enable the search to be carried out. Following the parents’ arrival, the door was opened and a special operations team entered the house unaccompanied, declaring that they were going to carry out an “initial search” for security purposes. It appears that when the applicant’s parents objected to the search, they were lying prostrate on the floor, and the house was searched by the special team without any other person being present.
8. Following the “initial search”, the actual search for which the search warrant had been issued was begun. The police officers, accompanied by the district chief (muhtar) and the applicant’s parents, entered the flat, carried out the search and recorded it on video. The police found explosive materials with a tabletop clock, batteries, cables and a note in the space between the beds situated in the bedroom and on the balcony. As the police discovered certain items which they considered could be used to prepare a bomb device, they suspended the search and called in bomb disposal experts. At the end of the search, the applicant’s parents alleged that the materials found during the search did not belong to them, arguing that they had been placed there by the police officers. Accordingly, they refused to sign the search record.
9. A note found during the search of the applicant’s house, entitled “Friend Reyhan”, read as follows:
“Compliments and respects. In these times [when] there has been an increase in the number of attacks on the leader Apo, attempts to annihilate freedom fighters who are stationed in the mountains for you and attacks against South Kurdistan, we, [in] the Dersim zone, support the independent candidate Ş.H. in the 22 July  election, brought to us in the name of democratisation. We want the candidates of other regime parties and independent candidates in Dersim to withdraw from the elections. We are certain on this point. If they do not withdraw voluntarily, we cannot be held responsible for the consequences. As we have discussed this issue with you, it would be good if you could pass on our opinions to the candidates. If you receive a negative answer, then send a reply through Friend Haydar, who has passed on this message of ours to you, and we will adopt an attitude accordingly. Also, your family’s honour is our honour on the anniversary of the death of Friend Fırat, which fell a few days after our meeting. We would be glad if you could pass this on to your family. Greetings.”
10. As is apparent from the submissions of the applicant’s lawyer, on 26 June 2007, after becoming aware of the search warrant, U.M. went of his own volition to the Tunceli public prosecutor’s office, where he was arrested on suspicion of being a member of an illegal organisation. Furthermore, the applicant had not attempted to flee abroad.
11. On 27 June 2007 at 6.10 a.m. the applicant was questioned by the police in the presence of his lawyer and chose to remain silent in response to questions about the materials recovered from his house.
12. On the same day the applicant gave statements to the Tunceli public prosecutor in the presence of his lawyer, submitting that he did not know what had been found in his flat, and argued that the search could have been used to frame him. The applicant’s lawyer submitted that an initial search had been carried out in the applicant’s flat without any other individual present and that the video-recording had only started after the end of the initial search. The lawyer went on to argue that the persons who had entered the applicant’s flat during the initial search could have placed the incriminating materials there.
13. Also on the same day, the applicant was brought before the Tunceli Magistrates’ Court and gave evidence in person, reiterating the statements he had made to the public prosecutor. The district chief, who had been present during the search of the applicant’s house, also gave evidence in his capacity as a witness, stating that at the beginning of the search they had been told to stay outside while a special police team with masks and guns went inside the flat for a couple of minutes. In response to the question posed by the applicant’s lawyer, he stated that the initial search had not been recorded on video. At the end of the hearing, the applicant was remanded in custody.
14. The Elazığ Police Department Fingerprinting Laboratory Bureau examined some of the materials seized in the course of the searches performed in the houses of U.M. and the applicant, and drew up a report on 9 July 2007. According to the report, although three different fingerprints had been identified on the document seized in the applicant’s house, and sixteen on the document seized in U.M.’s house, no fingerprints had been found on the other materials.
15. On 27 September 2007 the Elazığ Police Department issued another report, concluding that the fingerprints found on the document seized during the search of the applicant’s house and the fingerprints on the document discovered at U.M.’s house had been different from those of the applicant and the other suspects.
16. On 7 November 2007 the Malatya public prosecutor’s office filed an indictment against the applicant and a number of other persons, accusing them, under Article 314 § 2 of the Criminal Code, of membership of an illegal organisation and, under Article 174, of possession of explosive materials. According to the public prosecutor, it transpired from the document found at the applicant’s house that he had carried out activities, using the intimidating influence of the PKK (Workers’ Party of Kurdistan), to bring about the withdrawal of the political candidates other than Ş.H. (see paragraph 9 above).
17. On 27 December 2007 the first hearing was held before the Malatya 3rd Assize Court (hereinafter “the trial court”), which had special jurisdiction to try a number of aggravated offences listed in Article 250 § 1 of the Code of Criminal Procedure as in force at the material time. The applicant gave evidence in person, submitting that the items found at his house did not belong to him and that he had been set up. His lawyer also submitted that the initial search had been carried out in the presence of only the police officers, who had been wearing balaclavas, and while the applicant’s parents had been restrained and lying prostrate on the floor. Subsequently, the police officers had carried out another search, this time in the presence of the district chief and the applicant’s parents, during which they had allegedly found the explosive materials and the document in question. Arguing that the searches had been unlawful, he contended that the evidence found should not be used.
18. On 24 January 2008 the Tunceli Assize Court, acting pursuant to letters rogatory sent by the trial court, examined seven of the police officers who had conducted the search of the applicant’s house. One of the police officers, F.İ., stated that a specially trained team had carried out an initial search of the applicant’s house without the occupants being present, and that that search had not been recorded on video. When the materials had been found, the applicant’s parents had alleged that the police had placed those materials in the flat. F.İ. added that in practice an initial security search was usually carried out and that it generally lasted between thirty and sixty seconds. The remaining six police officers also made similar statements.
19. On 14 February 2008 the district chief (muhtar) was examined before the Tunceli Assize Court as a witness. He repeated his previous statements and added that he and the applicants’ parents had not been allowed to enter the flat during the initial search, which had lasted five to ten minutes. After the impugned initial search, he had noticed that the bedding on the beds close to where the materials had been found had been disturbed.
20. On 11 June 2008 the trial court delivered its judgment in the case. The trial court first held that the applicant and U.M. were not members of a terrorist organisation, owing to the fact that it could not establish the existence of a connection between them and the PKK. Nevertheless, relying on the note and the explosive materials found, the trial court went on to convict them of knowingly and intentionally aiding an illegal organisation (Article 220 § 7 and Article 314 § 3 of the Criminal Code) and possessing hazardous materials without authorisation (Article 174 of the Criminal Code). It accordingly sentenced them both to ten years and five months’ imprisonment and imposed a judicial fine.
21. As regards the applicant’s defence submissions in relation to the lawfulness of his house search, the trial court rejected them, holding that the search had been in accordance with procedure without, however, engaging in an assessment of the evidence given by the police officers and the district chief in their capacity as witnesses. The trial court also rejected the applicant’s submission that the items found in his flat did not belong to him, on the ground that his name had been mentioned on the note attached to the materials.
22. The applicant’s lawyer appealed against the decision and argued that the search had been unlawful and that therefore the evidence gathered during that search was dubious and questionable. In this connection he maintained that the initial search had been conducted unaccompanied and the subsequent search had been conducted only in the presence of the district chief. Moreover, the applicant’s fingerprints had not been found on any of the evidence seized at his house. In any event, the fact that the applicant had himself gone to the authorities as soon as he had found out about the search warrant was another indication that the allegations against him were baseless.
23. On 8 June 2009 the Court of Cassation quashed the decision of the trial court on the sole ground that the applicant’s acts should not be treated as constituting two separate offences. In its decision the Court of Cassation did not deal with any of the points raised by the applicant in his appeal.
24. On 8 October 2009 the trial court found the applicant guilty of possession of explosive materials in the context of the terrorist organisation’s activities under Article 315 of the Criminal Code and sentenced him to ten years and five months’ imprisonment and a judicial fine having due regard to the prohibition of reformatio in peius, whereby an appeal solely by a defendant or by the prosecutor for the benefit of the accused should not put him or her in a worse position. In its three-page-long judgment, the trial court made no mention of the dispute regarding the search of the applicant’s house.
25. The applicant’s lawyer appealed against the decision, reiterating his previous arguments.
26. On 27 September 2010 the Court of Cassation upheld the trial court’s judgment without addressing the applicant’s objections.
RELEVANT LEGAL FRAMEWORK
27. Article 38 § 6 of the Constitution provides as follows:
“Unlawfully obtained things or items [bulgu] [which have not yet been classed as evidence] shall not be admitted as evidence.”
II. Code of Criminal Procedure
28. The relevant provisions of the Code of Criminal Procedure concerning searches at the material time read as follows:
Article 116 – Search related to the suspect or the accused
“(1) If there is concrete evidence giving rise to a strong suspicion that the suspect or the accused may be apprehended or that evidence of the crime may be obtained, a search of his or her person, belongings, private residence, business premises or any other place belonging [to him or her] may be conducted.
Article 118 – Search at night-time
“A search of a dwelling, business premises and other places closed to the public shall not be carried out at night-time.
The above provision shall not be applied in [cases of discovery] in flagrante delicto [suçüstü] or cases where delay is prejudicial, as well as when the search is performed with the purpose of reapprehending a person who has absconded after being apprehended or arrested, or of rearresting a detainee or a convicted person.”
Article 119 – Search warrant
“(1) The members of the security forces may carry out searches upon the warrant of a judge, or in cases where delay would be prejudicial, upon [the written order of] a public prosecutor, or in cases where the public prosecutor cannot be reached, upon the written order of a superintendent. However, searches of dwelling[s], business premises and enclosed spaces that are not open to the public shall be carried out upon the warrant of a judge; or in cases where delay would be prejudicial, upon the written order of a public prosecutor.
(4) In order to be able to carry out searches of [private] residences, business premise[s] or enclosed spaces without the public prosecutor being present, two persons from neighbouring dwellings or the community council [ihtiyar heyetinden veya komşulardan iki kişi] of the locality [where the search is to be carried out] shall be present.”
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
29. The applicant complained, without relying on any provision of the Convention, that the “pre-search” of his house in the presence of only the police officers prior to its actual search pursuant to a judicial warrant – which had been carried out in the presence of his parents and the district chief (muhtar) – had been unlawful on the grounds that such a practice had no legal basis in Turkish law.
30. The Government contested that argument.
31. The Court, being master of the characterisation to be given in law to the facts of the case, gave notice of this complaint to the Government under Article 8 of the Convention (see Muhammad and Muhammad v. Romania [GC], no. 80982/12, § 90, 15 October 2020). Therefore, it is appropriate to examine this complaint under that Article, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
32. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
1. The parties’ submissions
(a) The applicant
33. The applicant submitted that the initial search of his house had been unlawful as it had lacked any legal basis in Turkish law. The applicant further alleged that the police officers had planted the evidence in his house, pointing out that they had carried out the initial search alone and without having secured the presence of attesting witnesses as required by the Code of Criminal Procedure. Nor had they recorded it on video, unlike the actual search that had followed suit. Accordingly, submitting that the Government’s arguments were far from credible, the applicant alleged that Article 8 of the Convention had been violated in the present case.
(b) The Government
34. The Government claimed that, according to the search report and the explanations furnished by the Ministry of the Interior in its letter dated 4 November 2014, an initial search of the applicant’s house had not been carried out. The Government further noted that no procedure entitled “initial search” existed in the Turkish legal system. However, the Government submitted that the circumstances prevailing in Tunceli at the time of the impugned search, namely the constant terrorist threat that law-enforcement officers and citizens had been under, should not be disregarded. Thus, the fact that law-enforcement officers had carried out “a security check” at the applicant’s house for a short period of time and on the basis of safety concerns prior to proceeding with the actual search had not been unlawful.
35. As regards the actual search of the applicant’s house, which had followed the initial search, the Government acknowledged that it had constituted an interference with his rights under Article 8 of the Convention, and had been carried out under Articles 116 and 199 of the Code of Criminal Procedure in pursuance of the legitimate aims of prevention of crime and protection of national security. Referring to the factual circumstances on the basis of which the warrant for the search of the applicant’s house had been issued and to the manner in which it had been performed, the Government submitted that the search had been necessary in a democratic society. Accordingly, the Government invited the Court to conclude that there had been no violation of the applicant’s rights under Article 8 of the Convention.
2. The Court’s assessment
(a) General principles
36. The Court notes at the outset that the essential object and purpose of Article 8 of the Convention is to protect the individual against arbitrary interference by the public authorities (see Bože v. Latvia, no. 40927/05, § 66, 18 May 2017). The notion of “home” in Article 8 § 1 of the Convention encompasses a private individual’s home (see Kolesnichenko v. Russia, no. 19856/04, § 29, 9 April 2009, and Buck v. Germany, no. 41604/98, § 31, ECHR 2005‑IV), and Contracting States may empower their authorities to use measures such as home searches to establish physical evidence of certain offences, provided that their relevant legislation and practice offer individuals “adequate and sufficient safeguards against abuse” (see H.M. v. Turkey, no. 34494/97, § 25, 8 August 2006).
37. However, any interference with an applicant’s “home” or his or her “private life” can only be justified under Article 8 § 2 if it is in accordance with the law, pursues one or more of the legitimate aims to which paragraph 2 of Article 8 refers and is necessary in a democratic society in order to achieve any such aim (see Roman Zakharov v. Russia [GC], no. 47143/06, § 227, ECHR 2015).
38. The expression “in accordance with the law” requires, firstly, that the impugned measure should have some basis in domestic law. Secondly, it refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law (see, among other authorities, Camenzind v. Switzerland, 16 December 1997, § 37, Reports of Judgments and Decisions 1997‑VIII). The phrase thus implies, inter alia, that domestic law must be sufficiently foreseeable in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which the authorities are entitled to resort to measures affecting their rights under the Convention (see Fernández Martínez v. Spain [GC], no. 56030/07, § 117, ECHR 2014).
39. For domestic law to meet these requirements, it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see Gillan and Quinton v. the United Kingdom, no. 4158/05, § 77, ECHR 2010, with further references). The level of precision required of domestic legislation – which cannot in any case provide for every eventuality – depends to a considerable degree on the content of the instrument in question, the field it is designed to cover, and the number and status of those to whom it is addressed (see, for example, Bernh Larsen Holding AS and Others v. Norway, no. 24117/08, § 124, 14 March 2013).
(b) Application of these principles to the instant case
40. Relying on the search record and the Ministry of the Interior’s letter dated 4 November 2014, the Government disputed the applicant’s allegation that the police officers had carried out an initial search of his house prior to its actual search pursuant to Articles 116 and 119 of the Code of Criminal Procedure. Five of the seven police officers conceded that a “pre‑search” of the applicant’s house had been carried out for security purposes, submitting that it had taken place in the absence of the applicant’s parents and the district chief and without having been recorded on video. The district chief also made similar statements, adding that the bedding on the beds where the explosive materials had been found had been disturbed. In view of the above, the Court dismisses the Government’s contention that no initial search had taken place prior to the actual search of the applicant’s house. Accordingly, the Court concludes that both the initial and the actual search of the applicant’s house constituted interferences with his right to respect for his private life and home (see Zosymov v. Ukraine, no. 4322/06, § 59, 7 July 2016, and Sher and Others v. the United Kingdom, no. 5201/11, § 171, ECHR 2015).
41. Therefore, the Court should ascertain whether the interference complained of was “in accordance with the law” within the meaning of Article 8 § 2 of the Convention.
42. The Court observes that the Government acknowledged that there had been no legal basis for any so-called “initial search” or “pre‑search” such as the one that had taken place in the present case. Moreover, the Government did not submit any other evidence capable of showing that the “pre‑search” of the applicant’s house on 26 June 2007 – the existence of which had been confirmed by the testimonies of the police officers and the district chief – had had any legal basis in Turkish law (see Vardanean v. the Republic of Moldova and Russia, no. 22200/10, § 39, 30 May 2017).
43. Notwithstanding the above finding, the Court would address the Government’s contention that owing to the security concerns prevailing at the time in Tunceli, the initial search of the applicant’s house should not be considered unlawful. In that connection, the Court reiterates that it does not underestimate the difficulties inherent in the States’ efforts to fight against crime, and in particular against organised crime and terrorism. Furthermore, while accepting that certain urgent circumstances, such as the existence of specific safety reasons, may require that particular measures be taken by the authorities in charge of an investigation at the outset of a home search, the Court nevertheless considers that the fact remains that no reasons such as those now being advanced by the Government were indicated either by the trial court in its reasoned judgment, or by the police officers who had carried out the initial search (see Cacuci and S.C. Virra & Cont Pad S.R.L. v. Romania, no. 27153/07, § 78, 17 January 2017).
44. In any event, the Government’s contention appears to imply that as long as a serious offence was alleged to have taken place in Tunceli at the material time, the impugned measure of an initial search without any legal basis in Turkish law was not unlawful. In the Court’s view, that contention amounts to granting an unfettered power to police officers in resorting to certain types of searches in a manner that may risk being contrary to the statutory requirements of the Code of Criminal Procedure – the very provisions aimed at ensuring judicial review of such an unfettered power. The resulting discretion would neither be prescribed by law nor be accompanied by the necessary procedural safeguards against arbitrariness or abuse. Such a situation would not only be contrary to the principle of the rule of law, but it would also be hardly compatible with the caveat that the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity to give the individual adequate protection against arbitrary interference (see Bykov v. Russia [GC], no. 4378/02, § 78, 10 March 2009). To hold otherwise would be tantamount to allowing the police to circumvent the procedural safeguards provided for by primary or secondary legislation, such as the mandatory participation and presence of two attesting witnesses in house searches that are performed in the absence of the public prosecutor (Article 119 § 4 of the Code of Criminal Procedure); the presence of these witnesses was all the more important in the instant case in the light of the nature of the applicant’s complaints.
45. Indeed, sight should not be lost of the applicant’s consistent allegation – which appears to be the salient aspect of the instant case – that the evidence allegedly found in his house had been planted by the officers who had carried out the “pre-search” in the absence of the other key witnesses, including the district chief and the applicant’s parents. In the Court’s view, that is a further factor illustrating the role and underlining the importance of effective procedural safeguards in respect of any investigative step performed with the aim of collecting evidence where such a step interferes with a suspect’s or accused’s rights under Article 8 of the Convention. More importantly, in the present case neither the search report nor the trial court’s reasoned judgment made any mention of the reasons now being advanced by the Government in support of their argument. In view of the above, the Court cannot subscribe to the Government’s argument that even though there was no legal basis for the initial search in Turkish law, it should not be regarded as unlawful in the light of the particular considerations relating to the security concerns prevailing at the material time in Tunceli.
46. In view of the foregoing considerations, the Court concludes that the initial search carried out by the security forces prior to performing the search of the applicant’s house on 26 June 2007 lacked a legal basis as none of the statutory provisions (i) governed its use and the manner of its exercise, (ii) delimited its scope, or (iii) provided for adequate and effective safeguards against abuse. Hence, the interference with the applicant’s right to respect for his home in the instant case was not prescribed by law and, in the absence of any safeguards, was susceptible to abuse and incapable of offering him the minimum protection afforded by Article 8 of the Convention.
47. There has therefore been a violation of Article 8 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
48. The applicant complained that he had not had a fair trial on account of the use by the trial court of unlawful evidence stemming from the unlawful search of his house. The applicant relied on Article 6 of the Convention, the relevant parts of which read as follows:
“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …”
49. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
1. The parties’ submissions
(a) The applicant
50. The applicant complained of a violation of Article 6 § 1 of the Convention, arguing that the trial court had used the unlawful evidence obtained from the unlawful search of his house. It was the applicant’s contention that the police had planted the material in his house when they had searched it by themselves for “security reasons”, a practice that had not had any legal basis. In support of that argument, the applicant pointed out that none of the materials allegedly discovered at his house had borne his fingerprints. Similarly, neither two attesting witnesses nor the public prosecutor had been present during the searches. It was also significant that the police had not recorded the initial search on video, contrary to the actual search. His parents had refused to sign the search record owing to the above-mentioned irregularities. Lastly, although the police officers and the district chief had given evidence and the applicant had made his defence submissions, the trial court had failed to carry out any assessment thereof. In view of the above, the applicant submitted that his right to a fair trial as protected by Article 6 of the Convention had been breached.
(b) The Government
51. The Government argued that the trial court had collected the statements of the police officers who had taken part in the search and had decided not to give credence to the applicant’s allegation that the materials found in his house did not belong to him. Similarly, the trial court had dismissed the applicant’s defence submissions concerning the lawfulness of the search of his house, holding that it had been carried out in accordance with the law. The Government furthermore argued, without making any detailed analysis, that the trial court’s two reasoned judgments showed that the applicant’s conviction had been based not only on the materials found during the search of his house, but also on the witness statements and submissions of the defendants. Thus, the applicant’s objections had been assessed by the trial court.
52. According to the Government, there appeared to be a dispute regarding the lawfulness of the evidence seized at the applicant’s house as a result of the “security check” allegedly carried out before the actual search, even though the search record had not contained any such finding. On that account, carrying out a security check for a short period of time in the applicant’s house in order to ensure the safety of life had not been unlawful. As a result, the Government invited the Court to conclude that there had been no violation of Article 6 of the Convention.
2. The Court’s assessment
(a) General principles
53. It is not for the Court to deal with alleged errors of law or fact committed by the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention, for instance where, in exceptional cases, such errors may be said to constitute “unfairness” incompatible with Article 6 of the Convention (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867/12, § 83, 11 July 2017).
54. The Court reiterates that, while Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, § 45, Series A no. 140; Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998 IV; Jalloh v. Germany [GC], no. 54810/00, §§ 94-96, ECHR 2006 IX; and Moreira Ferreira, cited above, § 83).
55. It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the “unlawfulness” in question and, where a violation of another Convention right is concerned, the nature of the violation found (see Bykov v. Russia [GC], no. 4378/02, § 89, 10 March 2009; Lee Davies v. Belgium, no. 18704/05, § 41, 28 July 2009; and Prade v. Germany, no. 7215/10, § 33, 3 March 2016).
56. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence were respected. It must be established, in particular, whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use (see Szilagyi v. Romania (dec.), no. 30164/04, 17 December 2013). In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (see, among other authorities, Bykov, cited above, § 90, and Lisica v. Croatia, no. 20100/06, § 49, 25 February 2010). While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see Lee Davies, cited above, § 42; Bykov, cited above, § 90; and Bašić v. Croatia, no. 22251/13, § 48, 25 October 2016).
57. The Court also reiterates that according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based (see Moreira Ferreira, cited above, § 84). The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999‑I). Without requiring a detailed answer to every argument advanced by the complainant, this obligation presupposes that parties to judicial proceedings can expect to receive a specific and explicit reply to the arguments which are decisive for the outcome of those proceedings (see, among other authorities, Ruiz Torija v. Spain, 9 December 1994, §§ 29-30, Series A no. 303‑A, and Higgins and Others v. France, 19 February 1998, §§ 42‑43, Reports 1998‑I). Moreover, in cases relating to interference with rights secured under the Convention, the Court seeks to establish whether the reasons provided for decisions given by the domestic courts are automatic or stereotypical (see, mutatis mutandis, Paradiso and Campanelli v. Italy [GC], no. 25358/12, § 210, 24 January 2017).
58. In view of the principle that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective, the right to a fair trial cannot be seen as effective unless the requests and observations of the parties are truly “heard”, that is to say, properly examined by the tribunal (see Ilgar Mammadov v. Azerbaijan (no. 2), no. 919/15, § 206, 16 November 2017; Carmel Saliba v. Malta, no. 24221/13, § 65, 29 November 2016 with further references; and Fodor v. Romania, no. 45266/07, § 28, 16 September 2014). In examining the fairness of criminal proceedings, the Court has also held in particular that by ignoring a specific, pertinent and important point made by the accused, the domestic courts fall short of their obligations under Article 6 § 1 of the Convention (see Zhang v. Ukraine, no. 6970/15, § 61, 13 November 2018, and Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 280, 21 April 2011).
(b) Application of those principles to the present case
59. The Court notes at the outset that, pursuant to Article 315 of the Criminal Code, the trial court convicted the applicant of possession of explosive materials in the context of the activities of a terrorist organisation, sentencing him to ten years and five months’ imprisonment and a judicial fine. In doing so, the trial court relied on two pieces of evidence found and seized during the search of the applicant’s house, namely the explosive materials and the handwritten note. As a result, it is safe to conclude that the evidence found during the house search was central to the applicant’s conviction (compare Tsion v. Georgia (dec.), no. 7720/12, 16 June 2020).
60. The Court further notes that the applicant argued that the explosive materials and the documents had been planted by the police during the “pre-search” they had carried out in the house, during which they had not been accompanied by other persons, such as attesting witnesses as was required by Article 119 § 4 of the Code of Criminal Procedure. Neither had they recorded this “pre-search” on video, unlike the actual search that had followed. As a result, the applicant’s parents had refused to sign the search and seizure record. Finally, the applicant pointed out that none of the materials relied on by the trial court to convict him had borne his fingerprints.
61. The Court reiterates that it has already found a violation of Article 8 of the Convention on the grounds that the initial search of the applicant’s house was not prescribed by law (see paragraphs 40 to 47).
62. The Court’s case-law under Article 6 of the Convention does not automatically exclude the use of evidence by the domestic courts which may be considered “unlawful” under the domestic legal provisions (see, among other authorities, Parris v. Cyprus (dec.), no. 56354/00, 4 July 2002). However, in cases where the defence is able to lay the basis of an arguable claim capable of calling into question the reliability or authenticity of a piece of evidence, regardless of the fact that it was “unlawful” or not in terms of domestic law, the Court’s examination under Article 6 of the Convention requires the domestic courts to conduct a thorough assessment, in an adversarial manner, of all the circumstances of the case with a view to allaying any such doubt on the authenticity of evidence (see Murtazaliyeva v. Russia [GC], no. 36658/05, § 157, 18 December 2018; Bykov, cited above, § 95; and Horvatić v. Croatia, no. 36044/09, § 82, 17 October 2013).
63. The Court further notes that both the Constitution of Turkey and the Code of Criminal Procedure provide for very strong procedural safeguards vis‑à‑vis unlawfully obtained evidence by establishing a firm stance against the admissibility and use of such evidence in criminal proceedings (see Budak v. Turkey, no. 69762/12, § 79, 16 February 2021). First and foremost, Article 38 § 6 of the Constitution indicates that unlawfully obtained things or items (bulgu) which have not yet been characterised as evidence must not be admitted as evidence. Similarly, Article 206 § 2 (a) of the Code of Criminal Procedure provides that evidence obtained unlawfully is not admissible. Article 217 § 2 of the same Code stipulates that an offence may be proven by all kinds of lawfully obtained evidence law. Article 230 § 1 (b) of the Code places the trial court under a duty to specify the evidence upon which it has decided to rely and explicitly and separately indicate the evidence obtained unlawfully.
64. Against this background, the Court considers that the absence of an appropriate response from the domestic courts vis-à-vis a substantiated claim that a certain piece of evidence has been obtained in breach of the statutory requirements or the rights and freedoms protected by the Convention and the Protocols thereto would, in principle, be incompatible with the requirements of a fair trial, including, in particular, where the evidence was of decisive importance for the conviction (see Budak, cited above, § 80).
65. In the present case, the Court’s role is to ascertain, in the light of its above-mentioned case-law, (i) whether the applicant was able to put forward a prima facie case against the lawfulness of the search of his house or the admissibility, authenticity or veracity of the evidence derived therefrom, and (ii) whether the domestic courts carried out a thorough examination on those points in the manner described above (see, mutatis mutandis, Mehmet Zeki Çelebi v. Turkey, no. 27582/07, § 51, 28 January 2020). Evidently, the yardstick against which the nature and scope of such scrutiny is to be measured will be determined in accordance with the importance of the evidence in question; the more important the role of the evidence for an applicant’s conviction, the more rigorous the domestic courts’ scrutiny should be (see, mutatis mutandis, Murtazaliyeva, cited above, § 166, for a similar approach in respect of the domestic courts’ duty vis-à-vis requests by the defence to examine a witness, and Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 116, ECHR 2011, for a similar approach in respect of the procedural safeguards vis‑à‑vis the evidence given by absent witnesses).
66. The Court considers that the first limb of the above question must be answered in the positive, having particular regard to the fact that on several occasions, the applicant and his lawyer used their legal possibility in order to draw the domestic courts’ attention to the fact that, in their view, the search had not been performed in accordance with the legal requirements of the domestic legislation.
67. That being so, the Court must further assess whether the domestic courts carried out a thorough examination of the lawfulness of the house search, as well as the admissibility, reliability and quality of the evidence found and seized (see Budak, cited above, § 83). Given the central role of the evidence discovered during the house search for the applicant’s conviction, the Court finds that it was imperative for the trial court to subject these issues to the most searching scrutiny (see, mutatis mutandis, Bosak and Others v. Croatia, nos. 40429/14 and 3 others, § 80, 6 June 2019). Moreover, as neither the explosive materials nor the document contained any element which might reasonably have led an objective observer to conclude that they belonged to the applicant, the Court notes that the national courts were under a duty to exhaust every reasonable possibility of finding out exactly how they were associated with the applicant (see, mutatis mutandis, Kasparov and Others v. Russia, no. 21613/07, § 64, 3 October 2013). In any event, it was incumbent on the trial court to carry out such examinations as to the lawfulness of the house search and the evidence obtained therein by virtue of the provisions of the Constitution of Turkey and the Code of Criminal Procedure.
68. In that connection, the Court observes that the trial court sent letters rogatory to the Tunceli Assize Court, asking it to examine the police officers who had carried out the “pre-search” and the search of the applicant’s house and to examine the district chief who had taken part in the latter and that the majority of those persons admitted that an initial search had indeed been carried out.
69. As to the trial court’s assessment, the Court observes that in its first judgment, which was later quashed by the Court of Cassation, the trial court merely held that the search had been “in accordance with procedure” (see paragraph 21). Nevertheless, the trial court did not assess in any way the relevance of the evidence given by the police officers and the district chief despite ordering the collection of their statements at the beginning of the trial (see, mutatis mutandis, Carmel Saliba, cited above, § 70). More importantly, the trial court’s second reasoned judgment made no mention whatsoever of the house search, including the evidence given by the witnesses or the defence’s arguments concerning the lawfulness of the search and the evidence obtained therefrom. Similarly, the Court of Cassation also upheld the trial court’s second reasoned judgment in a summary fashion.
70. The trial court also failed to take any steps to examine the link between the applicant and the explosive materials, as well as the document discovered during the search of his house, which did not bear the applicant’s fingerprint (see, mutatis mutandis, Layijov v. Azerbaijan, no. 22062/07, § 73, 10 April 2014).
71. Such a state of affairs meant that the domestic courts failed to demonstrate that they had duly examined and indeed answered the applicant’s specific, pertinent and important objections against the lawfulness of the search as well as the admissibility, authenticity and veracity of the central evidence derived therefrom, before imposing an extremely severe custodial sentence on him.
72. More importantly the trial court failed to fulfil its duty to observe the relevant procedural safeguards enshrined in the Constitution and in the Code of Criminal Procedure regarding the unlawfulness of evidence, which would have led it to rule on the admissibility of the contested evidence. In the Court’s view, that procedural shortcoming had a particular bearing on the overall fairness of the criminal proceedings against the applicant in view of the weight attached, by virtue of Article 53 of the Convention, to the non-application by the domestic courts of the enhanced protection afforded to the applicant by the domestic legal provisions, including the Constitution, regarding the admissibility and lawfulness of the central evidence (see, Budak, cited above, § 87).
73. In view of the above, the Court cannot conclude that the applicant’s defence submissions going to the heart of the lawfulness, admissibility, authenticity and veracity of the central evidence received an appropriate response by the domestic courts, which appear to have sidestepped the effective procedural safeguards by failing to provide reasons capable of showing that they had duly ascertained those aspects.
74. In sum, the use of the central evidence found during the search of the applicant’s house without the observance of the necessary procedural safeguards rendered the criminal proceedings against the applicant unfair (see Botea v. Romania, no. 40872/04, §§ 42-43, 10 December 2013).
75. There has therefore been a violation of Article 6 § 1 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
76. Lastly, the applicant complained for the first time in his observations dated 28 April 2015 on the admissibility and the merits of the case that the Court of Cassation had unfairly rejected his request for a hearing.
77. It follows that this part of the application was introduced out of time and must be rejected, in accordance with Article 35 §§ 1 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
78. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
79. The applicant claimed 50,000 euros (EUR) in respect of pecuniary damage, which corresponded to the amount of the monthly minimum salary for the eighty-four months he had had to spend in prison and the expenses he had incurred to be looked after during that period. The applicant further claimed EUR 75,000 in respect of non-pecuniary damage.
80. The Government contested those claims, inviting the Court to dismiss them.
81. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. However, it awards the applicant EUR 10,000 in respect of non-pecuniary damage, plus any tax that may be chargeable, in the light of the two different violations it has found in the instant case (see Budak, cited above, § 95). Notwithstanding that conclusion, the Court reiterates that the most appropriate form of redress would be a retrial in accordance with the requirements of Article 6 of the Convention, should the applicant so request (see Soytemiz v. Turkey, no. 57837/09, §§ 63‑64, 27 November 2018).
B. Costs and expenses
82. The applicant also claimed EUR 3,500 for legal fees and EUR 1,000 for costs and expenses incurred before the Court. In support of those claims, the applicant submitted the Tunceli Bar Association’s scale of fees.
83. The Government objected to those claims, arguing that the applicant had not submitted any proof showing that the expenses had actually been paid.
84. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, as well as the fact that the applicant’s lawyer has already been paid EUR 850 under the Court’s legal aid scheme, the Court rejects the claims for costs and expenses.
C. Default interest
85. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 8 of the Convention;
3. Holds that there has been a violation of Article 6 § 1 of the Convention;
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 19 October 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Hasan Bakırcı Aleš Pejchal
Deputy Registrar President