PROCEDURE

The case originated in an application (no. 70845/01) 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 Taner Kılıç (“the applicant”), on 5 January 2001.

The applicant was represented by Mr O.K. Cengiz, a lawyer practising in İzmir. The Turkish Government (“the Government”) did not designate an Agent for the purposes of the proceedings before the Court.

On 4 December 2003 the Court declared the application partly inadmissible and decided to communicate the complaints concerning the search carried out at the applicant’s home and office, the confiscation of videotapes during the search and a lack of legal remedies in this respect, to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1969 and lives in İzmir.

He is a lawyer and a board member of the İzmir branch of the Human Rights Association for Oppressed People (Mazlumder).

On 16 June 1999 the Public Prosecutor at the Ankara State Security Court requested the court to issue a warrant authorising the search of the headquarters and branches of the Mazlumder, in order to collect evidence concerning certain acts of the association, allegedly carried out against the “integrity of the country and the secular regime”. On the same day the court issued the search warrant which provided as follows: “...In accordance with Article 13 of the Code on the Establishment and Procedures of State Security Courts and Articles 86, 94, 95, 96, 97 and 98 of the Code on Criminal Procedure and in line with the request of the Public Prosecutor, it has been decided to carry out a search of the headquarters and all branches of the Mazlumder, during day time and on one occasion only, for the purpose of collecting evidence.”

On 18 June 1999 the Public Prosecutor at the Ankara State Security Court communicated the court decision to the Ministry of the Interior for execution. On the same day, the Public Prosecutor sent an additional letter which read as follows: “Pursuant to Article 86, and the following articles of the Code of Criminal Procedure, and considering that this is a situation where delay would be prejudicial, the Public Prosecutor’s office has also decided to carry out a search of the homes and offices of the General Director and board members of the association.”

On the same day the Under-Secretary of State of the Ministry of the Interior sent a letter to the governors of 80 provinces, which read as follows: “Pursuant to the Ankara State Security Court’s decision of 16 June 1999 and the Public Prosecutor’s decision of 18 June 1999, in accordance with Article 86 and the following articles of the Code of Criminal Procedure, and in the light of all the information and evidence establishing that the Mazlumder is acting against the integrity of the country and the secular regime, it is requested that a search be carried out of its headquarters and branches, as well as the homes and offices of the General Director and board members, which includes the homes and offices of the board members of the branches.”

On 19 June 1999 police officers carried out a simultaneous search of all the premises mentioned in the letter of the Under-Secretary of State, including the applicant’s home and law office.

During the search of his home, the police officers showed the applicant the letter of the Under-Secretary of State. They confiscated two videotapes found in his home and photocopied various documents taken from his office. Following the search of his home, the applicant and his wife signed a search report drafted by the police.

On 23 November 1999 the applicant filed a petition with Principal Public Prosecutor at the Court of Cassation, alleging an abuse of power by the Public Prosecutor at the Ankara State Security Court, the Under-Secretary of State of the Ministry of the Interior and the police officers who carried out the search.

On 7 February 2000 the Principal Public Prosecutor held that there was no need to act on the petition charging the Under-Secretary of State with an abuse of power, as he had merely assisted the judicial authorities, acting within the powers conferred on him by law.

On 28 February 2000 the applicant objected to the decision of the Principal Public Prosecutor. He complained that, by extending the search warrant issued by the State Security Court, the Public Prosecutor had exceeded his authority and the Under-Secretary of State had interpreted the Public Prosecutor’s instructions too broadly to include even the residences of all the branch board members.

On 20 April 2000 the Investigation Board of the Ministry of the Interior issued a non-prosecution decision in respect of the Under-Secretary of State. The Investigation Board maintained in its decision that the search warrant issued by the Ankara State Security Court and the instruction of the Public Prosecutor needed to be interpreted as a whole. It therefore concluded that the search had been in accordance with the decision taken by the prosecution, and it dismissed the applicant’s objection. On 2 June 2000 the applicant appealed against this decision to the Supreme Administrative Court.

On 12 June 2000 the applicant filed a petition with the Public Prosecutor at the Ankara State Security Court, requesting the return of his videotapes, seized during the search of his home.

On 30 June 2000 the Directorate of Criminal Affairs attached to the Ministry of Justice dismissed the applicant’s request to initiate criminal proceedings against the Public Prosecutor at the Ankara State Security Court, without giving any reasons.

On 19 September 2000 the Supreme Administrative Court dismissed the applicant’s objection against the Investigation Board’s decision, maintaining that it had been in accordance with the law.

On 4 March 2003 the Public Prosecutor at the Ankara State Security Court gave a decision of non-prosecution in respect of the General Secretary of the Association. In his decision, the Public Prosecutor stated that the materials seized during the search did not reveal any criminal intention or activity. However, he concluded that the materials seized should be considered as evidence and that they should therefore be retained.

In May 2004 all the items confiscated during the search of 19 June 1999 were returned to the headquarters of Mazlumder. The applicant subsequently retrieved his video cassettes.