SECOND SECTION
CASE OF YEŞİL v. TURKEY
(Application no. 28349/11)
 
 
 
 
JUDGMENT
 
STRASBOURG
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,
 Egidijus Kūris,
 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:
INTRODUCTION
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. THE FACTS
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 [2007] 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
Constitution
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.”
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.”
THE LAW
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.”
A. Admissibility
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. B. Merits
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.

Outcome for Article 8: violation