II. Criminal proceedings against the applicant<\/strong><\/p>\n9. On 7 March 2007 a public passenger bus was set on fire in \u0130zmir by a number of unidentified persons.<\/p>\n
10. On 13 March 2007 the \u0130zmir Security Directorate lodged a request with the \u0130zmir public prosecutor\u2019s office and asked for authorisation to intercept and record the telephone conversations of certain individuals, including the applicant, explaining that they had acted on behalf of an illegal organisation, the PKK\/KONGRA-GEL (Workers\u2019 Party of Kurdistan\/People\u2019s Congress of Kurdistan), recruited new members for it and organised unlawful demonstrations and attacks with Molotov cocktails.<\/p>\n
11. On 14 March 2007, at the request of the public prosecutor\u2019s office based on the police report of 13 March 2007, a judge assigned to the \u0130zmir Assize Court, which had special jurisdiction to try a number of aggravated crimes enumerated in Article 250 \u00a7 1 of the Code of Criminal Procedure in force at the material time (hereinafter referred to as \u201cthe \u0130zmir Specially Authorised Assize Court\u201d or \u201ctrial court\u201d), granted authorisation to intercept and record, inter alia, the applicant\u2019s mobile telephone conversations for a period of three months.<\/p>\n
12. On 18 March 2007 the \u0130zmir Security Directorate lodged a request with the public prosecutor\u2019s office to carry out searches of the houses of certain individuals, including the applicant, in the light of intelligence received revealing that those individuals had been planning an attack on 21\u00a0March 2007 during the Nevruz celebrations upon the instructions of the PKK\/KONGRA-GEL.<\/p>\n
13. On 19 March 2007, following a request from the public prosecutor\u2019s office, another judge from the \u0130zmir Specially Authorised Assize Court issued a search warrant in respect of the houses of thirteen individuals, including the house where the applicant was living with his parents. Reproducing the reasons provided in the public prosecutor\u2019s request, the judge stated that the individuals concerned had been acting within the structure of the so-called KKK\/TM (Kurdistan Democratic Confederalism) in line with instructions they had received from the senior leadership of the terrorist organisation PKK\/KONGRA-GEL and that, according to the intelligence received, they had been aiming to recruit new members from \u0130zmir for the terrorist organisation, carry out unlawful demonstrations and use Molotov cocktails. Searches pursuant to Articles 116 and 117 of the Code of Criminal Procedure were therefore necessary to arrest the suspects with the relevant evidence.<\/p>\n
14. At 6.30 a.m. on 20 March 2007 police officers carried out a search of the applicant\u2019s house in the presence of only the applicant\u2019s father. The applicant was not present. The officers found and seized the following documents: (i) a piece of paper (printout) in the living room with the heading \u201cS\u00fcrece Ait Rapordur\u201d (\u201cProgress Report\u201d), which had been drafted by the \u201cApocu Gen\u00e7lik \u0130nsiyatifi\u201d (\u201cYouth Initiative of Apo[1]\u201d), and (ii) forty-three leaflets entitled \u201cBucadaki Yurtsever Esnaf\u0131m\u0131za\u201d (\u201cTo our Patriotic Tradesmen in Buca\u201d), also drafted by that initiative, hidden in carpets in the cellar. The documents were neither handwritten nor signed by the applicant. In the first document, the author admitted to having thrown Molotov cocktails at the public passenger bus on 7 March 2007. According to a report drawn up at 7 a.m., the police officers finished the search at 6.50\u00a0a.m. At 1.30 p.m. the same day the applicant was taken into custody on suspicion of aiding an illegal organisation.<\/p>\n
15. On 21 March 2007, when interviewed by the police, the applicant exercised his right to remain silent in the presence of his lawyer.<\/p>\n
16. On 22 March 2007 the applicant gave statements before the judge of the \u0130zmir Specially Authorised Assize Court in the presence of his lawyer and denied the accusations against him, maintaining, in particular, that the documents found at his house did not belong to him. After his questioning, the judge remanded him in custody.<\/p>\n
17. On 10 April 2007 the \u0130zmir public prosecutor\u2019s office lodged a bill of indictment against the applicant and twelve other individuals with the \u0130zmir Specially Authorised Assize Court, in which the applicant was accused of membership of an illegal organisation and unauthorised possession and use of explosives. He subsequently stood trial before that court.<\/p>\n
18. At the first hearing held on 6 August 2007 the applicant gave evidence and denied the accusations. When asked about the search of his house on 20 March 2007, the applicant stated that he had not been present and that the documents found were not his. In his opinion, they had been planted in his house by the police. He further submitted that the police had made his father sign the search report despite the fact that he did not understand Turkish. The documents seized from his house had not been handwritten and had not contained his name, so they could have been drawn up by anybody. When asked about the statements K.\u015e. had made about him, the applicant stated that he did not know anyone of that name and denied that he had a code name or that people called him \u201cTahir\u201d. In his defence submissions, the applicant\u2019s lawyer submitted that the search was null and void as it had been conducted in a manner that was clearly contrary to the law. He further argued that the photographic identification of the applicant by K.\u015e. had not been carried out properly.<\/p>\n
19. During the same hearing, three other co-defendants, M.H.A., A.A. and K.R., contested the lawfulness of the searches of their houses and argued that the items found and seized either did not belong to them or had been planted by the police officers. They asked the trial court to hear the individuals who had signed the search-and-seizure reports. At the end of the hearing, the trial court decided to summon three police officers from each search who had drafted the search reports for examination as witnesses and further ordered the collection of the relevant documents from the criminal proceedings against K.\u015e.<\/p>\n
20. At the second hearing held on 21 November 2007 another co-defendant, \u0130.K., gave evidence, denied the accusations against him and argued that neither the neighbours nor the district chief (muhtar) had been present during the search of his house. The trial court then heard evidence from six police officers who had taken part in the searches of the defendants\u2019 houses. Among the officers were C.A., L.G. and M.Y., who had carried out the search of the applicant\u2019s house. Police officer C.A. stated that they had carried out the search too early in the morning and that for this reason they had been unable to ensure the presence of two attesting witnesses. They had likewise been unable to reach the district chief (muhtar). Lastly, C.A. submitted that they had only taken notes during the search and had drawn up the actual report at the police station.<\/p>\n
21. Police officer L.G. was then heard. He essentially reiterated the same points as C.A. When the applicant\u2019s lawyer asked him about his role during the search and where the documents had been seized from, L.G. stated that he was unwilling to answer those questions and asked the lawyer to refer to the search report for further information. Reminding him that attesting witnesses had not been present during the search, the applicant\u2019s lawyer asked him whether the applicant\u2019s father had been present during the search of each room. The trial court refused to allow that question to be put to L.G., holding that it was an unnecessary question which could not help shed light on the incident given that he had confirmed that the search report was accurate.<\/p>\n
22. Lastly, the trial court heard evidence from M.Y. who, after largely reiterating the same points as C.A. and L.G., submitted that they had found a document inside a notebook in the living room and certain other documents under a carpet in the cellar.<\/p>\n
23. On a number of occasions (that is, during the hearings between 21\u00a0November 2007 and 2 September 2009) the applicant and his defence lawyers argued that the search of the applicant\u2019s house without the presence of two attesting witnesses as required by Article 119 \u00a7 4 of the Code of Criminal Procedure had been unlawful and that the evidence obtained from it had to be considered as such and thus excluded from the case file. At the same time, they also challenged the admission into evidence of the documents found during the search, arguing that they had neither been handwritten by the applicant nor signed by him; they were therefore simple printouts which could have been drawn up by anyone. Furthermore, at a hearing held on 10 March 2008 the applicant\u2019s lawyer asserted that the photograph on the basis of which K.\u015e. had identified the applicant had not been of the latter. The trial court did not provide an answer to any of these defence submissions.<\/p>\n
24. At a hearing held on 26 April 2010 the public prosecutor submitted his opinion on the merits of the case, in which he asked the trial court to convict the applicant of membership of a terrorist organisation while at the same time requesting that he be acquitted of causing damage to property in connection with the incident involving the passenger bus.<\/p>\n
25. On 10 November 2010 the applicant was found guilty of membership of an illegal organisation and damage to public property by setting fire to a passenger bus on 7 March 2007. He was sentenced to a total of twenty-five years and four months\u2019 imprisonment (twelve years and thirteen years and four months respectively).<\/p>\n
26. In its judgment the \u0130zmir Specially Authorised Assize Court noted that during the trial the applicant had challenged the admission into evidence of the documents found in his house and maintained that he did not know K.\u015e. In reaching its conclusion, the trial court relied on the documents found in the applicant\u2019s house and the photographic identification during which K.\u015e. had identified the applicant from a photograph. The trial court considered that the search carried out at the applicant\u2019s house had been \u201cauthorised by a judge\u201d and had therefore been \u201cin accordance with the procedure\u201d. No mention was made by the court in its judgment about the applicant\u2019s arguments concerning the lawfulness of the photographic identification procedure.<\/p>\n
27. On 11 November 2010 the applicant lodged an appeal against the judgment.<\/p>\n
28. On 14 December 2010 the \u0130zmir public prosecutor also lodged an appeal against the judgment of the trial court, seeking its annulment as regards, inter alia, the applicant\u2019s conviction for damage to public property, arguing that the evidence available had not been capable of proving beyond reasonable doubt that he had either committed that offence or participated in its commission.<\/p>\n
29. On 26 December 2011 the public prosecutor of the Court of Cassation submitted his opinion to the Court of Cassation and asked for the trial court\u2019s judgment to be upheld.<\/p>\n
30. On 5 March 2012 the applicant\u2019s lawyer responded to the public prosecutor\u2019s opinion. He maintained that the judgment had been rendered without K.\u015e. having been heard as a witness or having identified the applicant before the first-instance court. He further maintained that the identification carried out by the police had been contrary to supplementary section\u00a06 of the Powers and Duties of the Police Act (Law no. 2559). He argued that the identification should have been carried out by showing photographs of different people together to the identifier and reminding him that the photograph of the accused might not be among the photographs shown. The lawyer also maintained that the search carried out at the applicant\u2019s house had been unlawful because neither two members of the community council nor any neighbours had been present during the search, contrary to the requirements of the Code of Criminal Procedure.<\/p>\n
31. The applicant\u2019s lawyer also maintained that the documents found at the house had not belonged to the applicant; according to his client, they had been planted there by the police. The lawyer further submitted that the documents found had not contained the applicant\u2019s fingerprints and had been nameless. He also maintained that there was no evidence that the applicant had set a public passenger bus on fire and that the judgment of the first-instance court had not been adequately reasoned to explain why the applicant had been found guilty of that offence.<\/p>\n
32. On 17 April 2012 the Court of Cassation upheld the trial court\u2019s judgment without mentioning any of the arguments raised by the applicant.<\/p>\n
RELEVANT LEGAL FRAMEWORK and practice<\/strong><\/p>\nI. Constitution<\/strong><\/p>\n33. Article 38 \u00a7 6 of the Constitution provides, in so far as relevant, as follows:<\/p>\n
\u201c…<\/p>\n
(6) Unlawfully obtained things or items (bulgu) [which have not yet been classed as evidence] shall not be admitted as evidence.<\/p>\n
…\u201d<\/p>\n
II. Code of Criminal Procedure<\/strong><\/p>\n34. The relevant provisions of the Code of Criminal Procedure provide as follows:<\/p>\n
Article 119 \u2013 Search warrant<\/p>\n
\u201c(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 kom\u015fulardan iki ki\u015fi) of the place [where the search is to be carried out] shall be present.\u201d<\/p>\n
Article 120 \u2013 Persons who may be present at the search<\/p>\n
\u201c(1) The owner of the premises or possessor of the items to be searched may be present at the search; if [he or she] is not present, [his or her] representative, a relative who is compos mentis, a person living in his household or a neighbour shall be present.\u201d<\/p>\n
Article 141 \u2013 Compensation claim<\/p>\n
\u201c1. Compensation for damage … may be claimed from the State by anyone …<\/p>\n
(i) in respect of whom the search warrant has been executed in a disproportionate manner …\u201d<\/p>\n
Article 206- Production and rejection of evidence<\/p>\n
\u201c(2) A request to produce evidence shall be denied in the cases mentioned below:<\/p>\n
(a) If the evidence was obtained unlawfully …\u201d<\/p>\n
Article 217 \u2013 Discretion to evaluate evidence<\/p>\n
\u201c(2) The imputed offence may be proven by using all kinds of lawfully obtained evidence …\u201d<\/p>\n
Article 230 \u2013 Compulsory points to be indicated in the reasoning of [the] judgment[s]<\/p>\n
\u201c(1) The following points shall be included in the reasoning of the judgment:<\/p>\n
(b) A discussion and assessment of the evidence; an indication of the evidence relied on for the conviction and that which has been rejected; and in that connection, a separate and explicit indication of the evidence in the case file obtained unlawfully.\u201d<\/p>\n
III. Powers and Duties of the Police Act (Law no. 2559)<\/strong><\/p>\n35. Supplementary section 6 of the Powers and Duties of the Police Act reads, in so far as relevant, as follows:<\/p>\n
\u201c…<\/p>\n
Persons who are subjected to the identification procedure shall be photographed together or a video of them recorded and put into the investigation file.<\/p>\n
The suspect may also be identified from a photograph [of him or her]. However, identification cannot be done by only showing a single photograph of the suspect or different photographs of him or her. The photographs of the different persons must also be the same size.\u201d<\/p>\n
IV. Case-law of the Constitutional Court<\/strong><\/p>\n36. On 19 November 2014, in the case of Ya\u015far Y\u0131lmaz (application no.\u00a02013\/6183), the Constitutional Court was called upon to examine whether the applicant\u2019s right to a fair trial had been breached on account of an unlawful house search due to the absence of two attesting witnesses as required by Article 97 of the former Code of Criminal Procedure and the use by the domestic courts of evidence obtained from it in the context of compensation proceedings initiated against him as a result of his unauthorised possession of pelt, trophies and animal horns. The Constitutional Court found a violation of the applicant\u2019s right to a fair trial, holding that the domestic courts\u2019 decisions against him had been based to a decisive extent on the evidence that had been obtained from a house search carried out in an unlawful manner owing to the absence of two attesting witnesses.<\/p>\n
37. In its judgment dated 1 February 2018 in the case of Orhan K\u0131l\u0131\u00e7 (application no. 2014\/4704), the plenary Constitutional Court examined whether the applicant\u2019s right to a fair trial had been breached on account of the search carried out by police officers in the absence of a judicial warrant or a written order by the public prosecutor at the house of two individuals connected with the applicant. In answering this question in the positive, the Constitutional Court first held that the illicit drugs and the precision scales obtained from the search had been decisive evidence in respect of the applicant\u2019s conviction for drug trafficking. It then emphasised that the trial court had not carried out any assessment as regards the applicant\u2019s allegations and objections concerning the manner in which the search had been conducted. Accordingly, the Constitutional Court concluded that the \u201cunlawfulness\u201d in the manner the search had been conducted was such as to undermine the overall fairness of the criminal proceedings against the applicant.<\/p>\n
THE LAW<\/strong><\/p>\nI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION<\/p>\n
38. The applicant complained that the search of his house had lacked a legal basis owing to the absence of two attesting witnesses, as required by Article\u00a0119 \u00a7 4 of the Code of Criminal Procedure. He relied on Article8 of the Convention, which reads as follows:<\/p>\n
\u201c1. Everyone has the right to respect for his private and family life, his home and his correspondence.<\/p>\n
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.\u201d<\/p>\n
A. Admissibility<\/strong><\/p>\n39. The Government raised a preliminary objection of non-exhaustion of domestic remedies, arguing that the applicant had failed to avail himself of the remedy laid down in Article 141 \u00a7 1 (i) of the Code of Criminal Procedure, which provides for the possibility of bringing a claim for compensation if the search has been carried out in a disproportionate manner (\u00f6l\u00e7\u00fcs\u00fcz bir \u015fekilde).<\/p>\n
40. The applicant argued that in order for a claim for compensation to be brought under Article 141 \u00a7 1 (i) of the Code of Criminal Procedure, a court decision was required finding the search illegal or declaring that it had been carried out in a disproportionate manner. As there had been no such decision in his case, the remedy suggested by the Government could not be used by him.<\/p>\n
41. The Court reiterates that the purpose of the rule on the exhaustion of domestic remedies is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to it (see G.I.E.M. S.R.L. and Others v. Italy [GC], nos.\u00a01828\/06 and 2 others, \u00a7 176, 28 June 2018).<\/p>\n
42. The obligation under Article 35 requires only that an applicant should have normal recourse to the remedies likely to be effective, adequate and accessible (see Sejdovic v. Italy [GC], no. 56581\/00, \u00a7 45, ECHR 2006\u2011II). In particular, the only remedies which the Convention requires an applicant to make normal use of are those that relate to the breaches alleged and are at the same time available and sufficient (see S\u00e9rvulo & Associados –\u00a0Sociedade de Advogados, RLand Others v. Portugal, no. 27013\/10, \u00a7\u00a068, 3\u00a0September 2015). The existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness (see\u00a0Vu\u010dkovi\u0107 and Others v.\u00a0Serbia (preliminary objection) [GC], nos. 17153\/11 and 29 others, \u00a7\u00a077, 25\u00a0March 2014, and Akdivar and Others v.\u00a0Turkey, 16 September 1996, \u00a7\u00a066, Reports of Judgments and Decisions 1996\u2011IV).<\/p>\n
43. Moreover, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was available in theory and in practice at the relevant time, that is to say, that it was accessible, capable of providing redress in respect of the applicant\u2019s complaint and offered reasonable prospects of success (see Vu\u010dkovi\u0107, cited above, \u00a7 77, and Sher and Others v. the United Kingdom, no. 5201\/11, \u00a7 132, ECHR 2015 (extracts)). Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement.<\/p>\n
44. Turning back to the circumstances of the case, the Court notes that Article\u00a0141 \u00a7 1 (i) of the Code of Criminal Procedure is capable of providing monetary compensation in respect of complaints regarding the disproportionate manner in which searches of premises have been conducted, a fact also demonstrated by the wording of that provision. In that connection, the Court reiterates that it has already examined a similar issue in Aksoy v. Turkey ((dec.) [Committee], no. 47585\/16, 5 March 2019) and found, in line with the Constitutional Court\u2019s judgment in that case, that the applicant (a lawyer) should have availed himself of the remedy provided for under Article 141 \u00a7 1 (i) of the Code of Criminal Procedure in respect of his complaints relating, inter alia, to the improper seizure of documents belonging to his clients during the search of his office (compare Masl\u00e1k and Mich\u00e1lkov\u00e1 v. the Czech Republic, no. 52028\/13, \u00a7 45 in fine, 14\u00a0January 2016).<\/p>\n
45. That being the case, the Court is called upon to assess whether the applicant\u2019s complaints under Article 8 of the Convention concern the allegedly disproportionate manner in which the search of his house was carried out and hence may fall within the ambit of Article 141 \u00a7 1 (i) of the Code of Criminal Procedure.<\/p>\n
46. In that connection, the Court observes that unlike the applicant in the above-mentioned case of Aksoy, the applicant in the present case did not raise any complaints which may arguably be interpreted as relating to the disproportionate or excessive nature of the search of his house. On the contrary, his complaint was that the search had lacked a legal basis and had thus been unlawful owing to the absence of two attesting witnesses, whose presence was a statutory requirement under Article 119 \u00a7 4 of the Code of Criminal Procedure (see Avanesyan v. Russia, no. 41152\/06, \u00a7\u00a031, 18\u00a0September 2014, and compare Xavier Da Silveira v.\u00a0France, no.\u00a043757\/05, \u00a7 46, 21 January 2010). Significantly, the Government did not provide the Court with any examples of domestic case-law where the domestic courts had examined a claim relating to the lawfulness of a search under Article 141 \u00a7 1 (i) of the Code of Criminal Procedure and awarded the claimants compensation in the event that they found the search unlawful (see Brazzi v. Italy, no. 57278\/11, \u00a7\u00a049, 27 September 2018, and Gutsanovi v.\u00a0Bulgaria, no. 34529\/10, \u00a7\u00a7 210-211, ECHR 2013 (extracts)).<\/p>\n
47. Having regard to the nature of the applicant\u2019s complaints and the Government\u2019s failure to demonstrate that a compensation claim under Article\u00a0141 \u00a7 1 (i) of the Code of Criminal Procedure is capable of providing redress in respect of complaints regarding the legality of searches, the Court is unable to conclude that the Government discharged the burden of proving that this remedy was effective for the applicant\u2019s complaint concerning the unlawfulness of the search of his house. It therefore follows that the applicant was not required to avail himself of the remedy provided for under Article 141 \u00a7 1 (i) of the Code of Criminal Procedure. Accordingly, the Government\u2019s preliminary objection must be dismissed.<\/p>\n
48. 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.<\/p>\n
B. Merits<\/strong><\/p>\n1. The parties\u2019 submissions<\/em><\/p>\n(a) The applicant<\/p>\n
49. The applicant asserted that the police had blatantly disregarded the statutory requirement to have two witnesses present during the search of his house. In that connection, he argued that although the police officers had submitted before the trial court that they could not find anyone, including the district chief, to take part in the search given that it had taken place at dawn, the search report had not indicated any such information. It was therefore clear that the police officers had not made any effort to comply with the requirement. In support of his contention, the applicant submitted four different search-and-seizure reports where searches had been performed early in the morning and in the presence of two witnesses pursuant to Article 119 \u00a7 4 of the Code of Criminal Procedure.<\/p>\n
(b) The Government<\/p>\n
50. The Government maintained that the search of the applicant\u2019s house had been conducted with a view to obtaining evidence concerning his activities in a terrorist organisation, namely the PKK. Moreover, the search warrant had been issued by the \u0130zmir Specially Authorised Assize Court, which had clearly defined the location and date of the search without using any vague wording. The Government stressed the importance of this last point, as the warrant had not given a broad scope of authority to the police officers. Moreover, the applicant\u2019s father had been present during the search. Consequently, the Government submitted that the search in question had had a basis in domestic law.<\/p>\n
2. The Court\u2019s assessment<\/em><\/p>\n51. The Court notes at the outset that the notion of \u201chome\u201d in Article\u00a08 \u00a7\u00a01 of the Convention encompasses a private individual\u2019s home (see Kolesnichenko v. Russia, no. 19856\/04, \u00a7 29, 9 April 2009, and Buck v.\u00a0Germany, no. 41604\/98, \u00a7 31, ECHR 2005\u2011IV). In the instant case, it is not disputed between the parties that the search of the applicant\u2019s house by police officers on 20 March 2007 constituted an interference with his right to respect for his home,protected under Article 8 of the Convention (see Kilyen v. Romania, no. 44817\/04, \u00a7 31, 25 February 2014, and Kaletsch v.\u00a0Germany (dec.), no. 31890\/06, 23 June 2009). Such interference is not justified under Article 8 unless it is in accordance with the law, pursues at least one of the legitimate aims enumerated in the second paragraph of that provision and is necessary in a democratic society (see DELTA PEK\u00c1RNY a.s. v.\u00a0the Czech Republic, no. 97\/11, \u00a7\u00a079, 2 October 2014).<\/p>\n
52. Therefore, the Court should ascertain whether the interference complained of was \u201cin accordance with the law\u201d within the meaning of Article\u00a08 \u00a7 2 of the Convention.<\/p>\n
53. The expression \u201cin accordance with the law\u201d requires, firstly, that the impugned measure should have some basis in domestic law and be compatible with the rule of law. Secondly, it refers to the quality of the law in question, requiring that it 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.\u00a0Switzerland, 16 December 1997, \u00a7\u00a037, Reports 1997\u2011VIII). 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 conditions on which the authorities are entitled to resort to measures affecting their rights under the Convention (see Fern\u00e1ndez Mart\u00ednezv. Spain [GC], no. 56030\/07, \u00a7 117, ECHR 2014 (extracts)).<\/p>\n
54. According to the Court\u2019s settled case-law, the phrase \u201cin accordance with the law\u201d requires, at a minimum, compliance with domestic law (see\u00a0Peev v. Bulgaria, no. 64209\/01, \u00a7 43, 26 July 2007). Even if it is primarily for the national authorities, notably the courts, to interpret and apply the relevant domestic law (see Kruslin v. France, 24 April 1990, \u00a7\u00a029, Series\u00a0A no.\u00a0176\u2011A, and Amann v. Switzerland\u00a0[GC], no. 27798\/95, \u00a7\u00a052, ECHR 2000-II), the Court can and should exercise a certain power to review whether domestic law has been complied with (see Craxi v.\u00a0Italy (no.\u00a02), no.\u00a025337\/94, \u00a7 78, 17 July 2003).<\/p>\n
55. Turning to the circumstances of the present case, the Court notes that while the search was conducted pursuant to a judicial warrant issued under Articles\u00a0116 and 117 of the Code of Criminal Procedure, it was the applicant\u2019s contention that the search of his house had been unlawful in terms of domestic law in that it had been conducted in the absence of two attesting witnesses, the presence of whom was mandatory under Article\u00a0119 \u00a7\u00a04 of the Code of Criminal Procedure.<\/p>\n
56. The Court observes that under Turkish criminal procedural law, the presence of two attesting witnesses is a legal requirement for the domestic authorities to be able to conduct a search at private residences, business premises and any other enclosed places without the participation of a public prosecutor (Article 119 of the Code of Criminal Procedure, see paragraph\u00a034above). This point thus concerns the legality of a search and falls to be examined under the question of whether the search was in accordance with the law (see, \u00d6zg\u00fcn \u00d6ztun\u00e7 v. Turkey, no.\u00a05839\/09, \u00a7\u00a7\u00a037\u201140, 27\u00a0March 2018, and compare Dragan Petrovi\u0107 v.\u00a0Serbia, no.\u00a075229\/10, \u00a7\u00a7\u00a074 and 77, 14 April 2020).<\/p>\n
57. The Court has already held, inter alia, that non-compliance with statutory requirements owing to the absence of witnesses whose presence was mandatory under the legal provisions of a given Contracting State could give rise to the conclusion that the search was conducted in a manner not in accordance with the law and therefore unlawful (see Alexov v.\u00a0Bulgaria, no.\u00a054578\/00, \u00a7\u00a7 128-130, 22 May 2008). The Court observes that by putting in place a legal framework and requiring the relevant authorities, notably the police, to meticulously observe the requirement to have two attesting witnesses present for searches of private residences carried out in the absence of a public prosecutor as an element of lawfulness, Turkish law provides a particularly important procedural safeguard capable of offering individuals adequate and sufficient guarantees against abuse or arbitrary interference by the public authorities with their rights protected by Article\u00a08 of the Convention.<\/p>\n
58. In the instant case, the Court notes that the police officers who conducted the search were examined by the trial court in their capacity as witnesses. They acknowledged that they had carried out the search without ensuring the presence of two other persons, as was required by Article\u00a0119 \u00a7\u00a04 of the Code of Criminal Procedure. The Government, for their part, did not dispute that fact either, but reiterated the statements the police officers who had conducted the search had made in their capacity as witnesses before the trial court. According to them, two attesting witnesses had not been present during the search, allegedly because it had been conducted at daybreak. In the Government\u2019s view, as the search had concerned a terrorist offence, nobody in the vicinity of the house had agreed to take part in it.<\/p>\n
59. Be that as it may, the fact remains that none of those points was indicated in the search report, which was also drawn up by those officers. Nor was there any other evidence capable of demonstrating that the officers actually took any steps to ensure the presence of two attesting witnesses. More importantly, the domestic courts did not even outline those points in their decisions, let alone assess them (see Bo\u017ee v. Latvia, no. 40927\/05, \u00a7\u00a082 in fine, 18 May 2017). In any event, none of these grounds had any basis in the statutory provisions concerning searches. In fact, it appears that the Turkish Code of Criminal Procedure and the relevant provisions do not provide any exceptions for non-compliance with the crucial safeguard set out in Article 119 \u00a7 4 of the Code of Criminal Procedure in so far as searches of private residences are concerned (see Aydemir v.\u00a0Turkey, no.\u00a017811\/04, \u00a7 99, 24 May 2011, and compareKobiashvili v.\u00a0Georgia,no.\u00a036416\/06, \u00a7\u00a7 62-64, 14\u00a0March 2019).<\/p>\n
60. That being the case, the Court is unable to conclude that the search of the applicant\u2019s house was carried out in accordance with the law.<\/p>\n
61. There has accordingly been a violation of Article 8 of the Convention.<\/p>\n
II. ALLEGED VIOLATION OF ARTICLE 6 \u00a7\u00a7 1 and 3 (d) OF THE CONVENTION<\/p>\n
62. The applicant complained under Article 6 \u00a7 1 of the Convention that he had not had a fair trial on account of the trial court\u2019s use of unlawful and unreliable evidence allegedly found during the unlawful search of his house to sentence him to more than twenty-five years\u2019 imprisonment. Relying on Article\u00a06 \u00a7 3 (d) of the Convention, he further complained that the trial court had used the unlawful evidence given by K.\u015e. in his statements and the photographic identification procedure without examining him as a witness and clarifying the discrepancies in his statements. Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention reads, in so far as relevant, as follows:<\/p>\n
\u201c1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …\u201d<\/p>\n
… … …<\/p>\n
3. Everyone charged with a criminal offence has the following minimum rights:<\/p>\n
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.\u201d<\/p>\n
A.\u00a0Admissibility<\/strong><\/p>\n63. 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.<\/p>\n
B.\u00a0Merits<\/strong><\/p>\n1. The parties\u2019 submissions<\/em><\/p>\n(a) The applicant<\/p>\n
64. The applicant argued that he had not had a fair trial in that he had been convicted on the basis of unlawful evidence obtained from an unlawful search. In that connection, he submitted that the search of his house had been carried out in a manner that had clearly disregarded the relevant statutory provisions since it had not been conducted in the presence of two attesting witnesses, as required by Article 119 \u00a7 4 of the Code of Criminal Procedure. That fact had been indirectly confirmed by the Government, who had tried to downplay an unlawful practice by referring to it as a \u201cprocedural deficiency\u201d. In the applicant\u2019s view, the absence of two attesting witnesses during the search of his house had had the effect of preventing an effective judicial review of the legality of the search and the question of whether the documents had already been in the house prior to their seizure or had been planted there by the police.<\/p>\n
65. Furthermore, when the police officers had testified as witnesses during the trial, the applicant had attempted to ask them whether his father had been present during the search of each room, but the trial court had not allowed that question, finding it of absolutely no relevance. The applicant thus rejected the Government\u2019s argument that his father\u2019s presence was sufficient to remedy the prejudice stemming from the unlawfulness of the search.<\/p>\n
66. Lastly, the applicant furnished the Court with different reports of searches which had been carried out early in the morning in \u0130zmir within the context of different investigations into terrorist offences, where the police had been able to secure the presence of attesting witnesses. In the applicant\u2019s view, these were sufficient to rebut the Government\u2019s reliance on the police officers\u2019 submissions that they had been unable to find an attesting witness because it had been too early in the morning and the case had concerned a terrorist offence. In any event, none of that information had been duly recorded by the police officers in the search report. In view of the above, the applicant invited the Court to find a violation of Article 6 of the Convention.<\/p>\n
(b) The Government<\/p>\n
67. At the outset, the Government submitted that the search of the applicant\u2019s house had been carried out pursuant to a judicial warrant and that the applicant\u2019s father had been present during the search. Moreover, at the applicant\u2019s request, the trial court had heard the police officers who had conducted the search with a view to remedying the procedural deficiency stemming from the absence of two attesting witnesses. Both the applicant and his lawyer had been able to put questions to the police officers, who had stated that they had been unable to have two attesting witnesses present because the search had taken place early in the morning. In the Government\u2019s view, it had been natural for people not to have wanted to participate in the search of a house given that a terrorist offence had been at issue. Accordingly, the Government argued that the trial court had not considered that the evidence had lacked the procedural requirements and invited the Court to hold that Article 6 of the Convention had not been violated in the instant case.<\/p>\n
2. The Court\u2019s assessment<\/em><\/p>\n(a) The general principles<\/p>\n
68. 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 \u201cunfairness\u201d incompatible with Article 6 of the Convention (see Moreira Ferreira v. Portugal (no. 2) [GC], no. 19867\/12, \u00a7 83, 11 July 2017).<\/p>\n
69. 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, \u00a7 45, Series A no. 140; Teixeira de Castro v. Portugal, 9 June 1998, \u00a7 34, Reports 1998\u2011IV; Jalloh v.\u00a0Germany [GC], no. 54810\/00, \u00a7\u00a7 94-96, ECHR 2006\u2011IX; and Moreira Ferreira v.\u00a0Portugal (no. 2), cited above,\u00a7 83).<\/p>\n
70. It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence \u2013\u00a0for example, evidence obtained unlawfully in terms of domestic law\u00a0\u2013 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 \u201cunlawfulness\u201d in question and, where a violation of another Convention right is concerned, the nature of the violation found (see Bykov v.\u00a0Russia [GC], no. 4378\/02, \u00a7 89, 10 March 2009; Lee Davies v.\u00a0Belgium, no.\u00a018704\/05, \u00a7 41, 28 July 2009; and Prade v. Germany, no. 7215\/10, \u00a7\u00a033, 3\u00a0March 2016).<\/p>\n
71. 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, \u00a7\u00a090, and Lisica v. Croatia, no. 20100\/06, \u00a7 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, \u00a7 42; Bykov, cited above, \u00a7 90; and Ba\u0161i\u0107 v. Croatia, no.\u00a022251\/13, \u00a7\u00a048, 25 October 2016).<\/p>\n
72. 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 v. Portugal (no. 2), cited above, \u00a7\u00a084). 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 Garc\u00eda Ruiz v. Spain [GC], no.\u00a030544\/96, \u00a7 26, ECHR 1999\u2011I). 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\u00a0December 1994, \u00a7\u00a7 29-30, Series A no. 303\u2011A, and Higgins and Others v.\u00a0France, 19\u00a0February 1998, \u00a7\u00a7 42-43, Reports 1998\u2011I). 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 Campanelliv. Italy [GC], no. 25358\/12, \u00a7 210, ECHR 2017).<\/p>\n
73. 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 \u201cheard\u201d, that is to say, properly examined by the tribunal (see Ilgar Mammadov v.\u00a0Azerbaijan (no.\u00a02), no. 919\/15, \u00a7 206, 16 November 2017; Carmel Saliba v.\u00a0Malta, no.\u00a024221\/13, \u00a7 65, 29 November 2016 with further references therein; and Fodor v. Romania, no. 45266\/07, \u00a7 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\u00a06 \u00a7\u00a01 of the Convention (see Zhang v. Ukraine, no. 6970\/15, \u00a7\u00a061, 13\u00a0November 2018, and Nechiporuk and Yonkalo v. Ukraine, no.\u00a042310\/04, \u00a7\u00a0280, 21 April 2011).<\/p>\n
(b) Application of those principles to the present case<\/p>\n
74. The Court notes at the outset that the trial court convicted the applicant of membership of a terrorist organisation and causing damage to public property for mounting an attack on a public passenger bus with Molotov cocktails and accordingly sentenced him to a total of twenty-five years and four months\u2019 imprisonment. As regards the offence of membership of a terrorist organisation, the trial court relied on two pieces of evidence: (i) the statements K.\u015e. had made in the context of a separate set of criminal proceedings and his identification of the applicant from a photograph, and (ii) the documents found and seized during the search of the applicant\u2019s house.<\/p>\n
75. As to the incident relating to the public passenger bus, the trial court indicated in its reasoned judgment that the sole evidence relating thereto was the document entitled \u201cS\u00fcrece Ait Rapordur\u201d (\u201cProgress Report\u201d) found during the search of the applicant\u2019s house on 20 March 2007, in which the author had admitted to having thrown a Molotov cocktail at the bus. As a result, it is safe to conclude that the evidence found during the search and the evidence given by K.\u015e. played a central role in the applicant\u2019s conviction (compare Tsion v. Georgia (dec.), no.\u00a07720\/12, 16\u00a0June 2020).<\/p>\n
76. As regards the search of the applicant\u2019s house, the Court notes that the applicant denied that the documents found were his, arguing that they might have been planted by the police, who had failed to conduct the search in the presence of two attesting witnesses despite this being mandatory under Article 119 \u00a7 4 of the Code of Criminal Procedure. On that basis, the applicant argued that a judicial review of the crucial question of whether the police had planted the evidence in his house had effectively become impossible owing to non-compliance with the above-mentioned statutory provision.<\/p>\n
77. The Court reiterates that it has already found a violation of Article\u00a08 of the Convention on the grounds that the search of the applicant\u2019s house was not carried out in the manner which was not in accordance with the law since it was conducted in the absence of two attesting witnesses.<\/p>\n
78. The Court\u2019s case-law under Article 6 of the Convention does not automatically exclude the use of evidence by the domestic courts which may be considered \u201cunlawful\u201d under the domestic legal provisions (see, among other authorities, Parris v. Cyprus (dec.), no. 56354\/00, 4\u00a0July 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 whether it was \u201cunlawful\u201d or not in terms of domestic law, the Court\u2019s case-law 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 doubts as to the authenticity of evidence (see Murtazaliyeva v.\u00a0Russia [GC], no.36658\/05, \u00a7 157, 18 December 2018; Bykov, cited above, \u00a7 95; and Horvati\u0107 v. Croatia, no. 36044\/09, \u00a7 82, 17\u00a0October 2013).<\/p>\n
79. Furthermore, the Court notes that both the Constitution of Turkey and the Code of Criminal Procedure provide very strong procedural safeguards vis-\u00e0-vis unlawfully obtained evidence by establishing a firm stance against the admissibility and use of such evidence in criminal proceedings. First and foremost, Article 38 \u00a7 6 of the Constitution indicates that unlawfully obtained things or items (bulgu) (which have not yet been classed as evidence) cannot be admitted as evidence. Similarly, Article\u00a0206 \u00a7\u00a02 (a) of the Code of Criminal Procedure provides that evidence obtained unlawfully is not admissible. Article 217 \u00a7 2 of the same Code stipulates that an offence may be proven by all kinds of lawfully obtained evidence. Article\u00a0230 \u00a7 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. In that connection, the Court further notes that the Constitutional Court has also adopted a similar approach in respect of the use by the domestic courts of evidence obtained from searches deemed to be contrary to the relevant statutory provisions (see paragraphs 36 and37).<\/p>\n
80. Against this background, the Court considers that the absence of an appropriate response from the domestic courts vis-\u00e0-vis a substantiated claim that a certain piece of evidence has been obtained in breach of 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.<\/p>\n
81. In the present case, the Court\u2019s 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, authenticity, veracity and admissibility of the evidence found during the search of his house, and (ii) whether the domestic courts carried out a thorough examination on those points in the manner described above (see, mutatis mutandis, Mehmet Zeki \u00c7elebi v. Turkey, no. 27582\/07, \u00a7 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\u2019s conviction, the more rigorous the domestic courts\u2019 scrutiny should be (see, mutatis mutandis, Murtazaliyeva, \u00a7 166 for a similar approach in respect of the domestic courts\u2019 duty vis-\u00e0-vis the defence\u2019s requests to examine a witness, and Al-Khawaja and Tahery v.\u00a0the\u00a0United Kingdom [GC], nos. 26766\/05 and 22228\/06, \u00a7 116, ECHR 2011 for a similar approach in respect of the procedural safeguards vis-\u00e0-vis the evidence given by absent witnesses).<\/p>\n
82. The Court considers that the first part of the above question must be answered in the affirmative, particularly given that the applicant and his co-defendants either themselves or through their lawyers used on several occasions their legal possibility to draw the domestic courts\u2019 attention to the fact that, in their view, the searches had not been conducted in accordance with the requirements of domestic law.<\/p>\n
83. That being so, the Court must further assess whether the domestic courts carried out a thorough examination of the lawfulness of the search of the applicant\u2019s house as well as the admissibility, reliability and quality of the evidence found and seized. Given the central role of the documents discovered during the search for the applicant\u2019s conviction, the Court considers that it was imperative for the trial court to subject these issues to the most searching scrutiny (see, mutatis mutandis, Bosak and Others v.\u00a0Croatia, nos. 40429\/14 and 3 others, \u00a7 80, 6 June 2019). Moreover, as the documents contained no elements which might reasonably have led an objective observer to conclude that they had been drawn up by the applicant, the Court notes that the national courts were under a duty to exhaust every reasonable possibility of finding out exactly whether the author of that document, who had confessed to attacking the public passenger bus, was the applicant (see, mutatis mutandis, Kasparov and Others v.\u00a0Russia, no.\u00a021613\/07, \u00a7 64, 3 October 2013). In any event, the need to carry out those examinations as to the lawfulness of the search and the evidence obtained from it was incumbent on the trial court under the Constitution and the Code of Criminal Procedure.<\/p>\n
84. In that connection, the Court observes that the trial court heard evidence from three police officers and that two of them admitted that the search had indeed been carried out in the absence of two attesting witnesses because it had taken place in the early hours of 20 March 2007. Moreover, when the applicant\u2019s lawyer wanted to ask one of the officers whether the applicant\u2019s father had been present when each room had been searched, the trial court rejected that question, finding it of absolutely no relevance in ascertaining the truth, without giving any reasons for that conclusion. In the Court\u2019s view, this question was all the more pertinent given that it might have shed light on the applicant\u2019s allegation that the police officers had planted the relevant documents in his house. In the same vein, the trial court appears to have made no assessment of the applicant\u2019s submission that the fact that his father had signed the search report did not mean much due to the fact that he did not speak Turkish (compare Kirakosyan v.\u00a0Armenia (no.\u00a02), no. 24723\/05, \u00a7 62, 4 February 2016).<\/p>\n
85. Similarly, the trial court also failed to take any steps to examine the link between the applicant and the document discovered during the search of his house, a one-page printout, which contained neither his fingerprints nor his signature (see, mutatis mutandis, Layijov v.\u00a0Azerbaijan, no.\u00a022062\/07, \u00a7 73, 10 April 2014).<\/p>\n
86. It is striking to note that the trial court\u2019s reasoned judgment made no mention of the evidence given by the two police officers who had admitted their failure to fulfil the statutory requirement under Article 119 \u00a7 4 of the Code of Criminal Procedure, that is to say the presence of two attesting witnesses (contrast Erduran and Em Export D\u0131\u015f Tic.\u00a0A.\u015e. v.\u00a0Turkey, nos.\u00a025707\/05 and 28614\/06, \u00a7 110, 20 November 2018). The trial court merely held that the search had been \u201cauthorised by a judge\u201d and had therefore been \u201cin accordance with the procedure\u201d without in any way assessing the relevance of the police officers\u2019 statements (see, mutatis mutandis, Carmel Saliba v. Malta, cited above, \u00a7 70). Such scant and stereotypical reasoning means that the trial court failed to demonstrate that it had duly examined and effectively answered the applicant\u2019s specific, pertinent and important objections against the lawfulness of the search as well as the admissibility, authenticity and veracity of the main piece of evidence obtained from it before imposing an extremely severe custodial sentence on him.<\/p>\n
87. More importantly, the trial court failed to fulfil its duty to apply the relevant procedural safeguards enshrined in the Constitution and 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\u2019s 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, under 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 main piece of evidence.<\/p>\n
88. In view of the above, the Court cannot conclude that the applicant\u2019s defence submissions going to the heart of the lawfulness, admissibility, authenticity and veracity of the main piece of evidence received an appropriate response from the domestic courts, which appear to have sidestepped the effective procedural safeguards by failing to provide reasons capable of showing that they had duly considered them.<\/p>\n
89. In sum, the use of the main piece of evidence found during the search of the applicant\u2019s house without applying the necessary procedural safeguards rendered the criminal proceedings against him unfair (see Botea v.\u00a0Romania, no. 40872\/04, \u00a7\u00a7 42-43, 10 December 2013, and contrast Musa Karata\u015f v. Turkey, no. 63315\/00, \u00a7\u00a7 92 and 95, 5\u00a0January 2010).<\/p>\n
90. Accordingly, there has been a violation of Article 6 \u00a7 1 of the Convention.<\/p>\n
91. That being the case, the Court does not consider it necessary to examine the merits of the applicant\u2019s complaint under Article 6 \u00a7\u00a7 1 and 3\u00a0(d) of the Convention regarding his alleged inability to examine K.\u015e. before the trial court.<\/p>\n
III. APPLICATION OF ARTICLE\u00a041 OF THE CONVENTION<\/p>\n
92. Article\u00a041 of the Convention provides:<\/p>\n
\u201cIf 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.\u201d<\/p>\n
A. Damage<\/strong><\/p>\n93. The applicant claimed 100,000 euros (EUR) in respect of pecuniary damage, arguing that because he had been deprived of his liberty since 20\u00a0March 2007, he had been unable to provide for his family of nine. As to non-pecuniary damage, the applicant claimed EUR 100,000 corresponding to the pain and suffering he had had to endure as a result of having been sentenced to more than twenty-five years\u2019 imprisonment.<\/p>\n
94. The Government contested those claims, arguing that (i) there was no causal link between the claims and the alleged violations of the Convention and (ii) that the claims were in any event excessive and did not correspond to the amounts awarded in the Court\u2019s case-law.<\/p>\n
95. The Court notes that the applicant failed to substantiate his pecuniary damage claims; it therefore rejects this claim. On the other hand, 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 Cevat \u00d6zelv.\u00a0Turkey, no. 19602\/06, \u00a7\u00a042, 7\u00a0June 2016, and Karabeyo\u011flu v.\u00a0Turkey, no.\u00a030083\/10, \u00a7 136, 7\u00a0June 2016). 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\u00a0Soytemiz v. Turkey, no.57837\/09,\u00a0\u00a7\u00a7 63-64, 27\u00a0November 2018).<\/p>\n
B. Costs and expenses<\/strong><\/p>\n96. The applicant also claimed EUR 3,000 for legal fees and a further EUR\u00a0229 for postage and translation costs incurred before the Court. In support of those claims, he submitted postal receipts and an invoice regarding the translation expenses.<\/p>\n
97. The Government invited the Court to reject, pursuant to Rule\u00a060 \u00a7\u00a7\u00a01 and\u00a03 of the Rules of Court, the applicant\u2019s claims under this head, with the exception of the translation expenses.<\/p>\n
98. According to the Court\u2019s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were 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, the Court rejects the claim for legal fees given the absence of any documents to support it. On the other hand, it considers it reasonable to award the sum of EUR 229 for postal and translation expenses incurred in the proceedings before the Court, plus any tax that may be chargeable to the applicant.<\/p>\n
C. Default interest<\/strong><\/p>\n99. 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.<\/p>\n
FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n1. Declares the application admissible;<\/p>\n
2. Holds that there has been a violation of Article 8 of the Convention;<\/p>\n
3. Holds that there has been a violation of Article 6 \u00a7 1 of the Convention;<\/p>\n
4. Holds that there is no need to examine the complaint under Article\u00a06 \u00a7\u00a7\u00a01 and\u00a03\u00a0(d) of the Convention;<\/p>\n
5. Holds,<\/p>\n
(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\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts, to be converted into the currency of the respondent Stateat the rate applicable at the date of settlement:<\/p>\n
(i) EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n
(ii) EUR 229 (two hundred and twenty-nine euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n
6. Dismisses, the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n
Done in English, and notified in writing on 16 February 2021, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n
Stanley Naismith \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 Jon Fridrik Kj\u00f8lbro
\nRegistrar \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0 \u00a0President<\/p>\n
_______________<\/p>\n
1 Apo is the shortened name of Abdullah \u00d6calan, the leader of the PKK, a terrorist organisation.<\/p>\n
![\"INTRODUCTION\"](\"https:\/\/laweuro.com\/wp-content\/uploads\/2021\/10\/INTRODUCTION.jpg\")
. The application concerns the alleged violation of the applicant\u2019s right to respect for his home under Article 8 of the Convention on account of the search of his house, as well as the alleged unfairness of the criminal proceedings on account of the use of allegedly unlawful evidence obtained during that search to convict him. It further pertains to the applicant\u2019s purported inability to examine a certain individual, K.\u015e., under Article\u00a06 \u00a7\u00a03\u00a0(d) of the Convention.<\/p>\n