AFFAIRE AYDEMİR CONTRE LA TURQUIE

Rezoluția CM/ResDH(2013)252 Aydemir împotriva Turciei Executarea hotărârii Curții Europene a Drepturilor Omului Cerere nr. Cauza Hotărârea Determinativului la 17811/04 AYDEMIR 24/05/2011 24/08/2011 (adoptată de Comitetul de Miniștri la 5 decembrie 2013, cu ocazia celei de-a 1186-a ședințe a delegaților miniștrilor) Comitetul miniștrilor, în temeiul articolului 46 alineatul (2) din Convenția pentru apărarea drepturilor omului și a libertăților fundamentale, care prevede ca Comitetul să supravegheze executarea hotărârilor definitive ale Curții Europene a Drepturilor Omului (denumite în continuare "convenția" și "Curtea"), Având în vedere hotărârea definitivă transmisă de Curte Comitetului în această cauză și încălcarea constatată reamintind obligația statului pârât, în temeiul articolului 46 alineatul (1) (1) din Convenție, să se conformeze hotărârilor definitive în litigiile la care este parte și că această obligație implică, pe lângă plata satisfacției echitabile acordate de Curte, adoptarea de către autoritățile din statul membru în cauză, dacă este necesar de măsuri individuale pentru a pune capăt încălcărilor constatate și pentru a elimina consecințele acestora, în măsura posibilului de către Restitutio in integrum de măsuri generale de prevenire a unor încălcări similare care au invitat guvernul din statul pârât să informeze Comitetul cu privire la măsurile luate pentru a se conforma obligației respective După examinarea bilanțului de acțiune furnizat de guvern care indică măsurile adoptate în vederea executării hotărârii judecătorești, inclusiv informațiile furnizate în ceea ce privește plata satisfacției echitabile acordate de Curte (a se vedea documentul DH-DD(2012)743 [1] FIȘĂ că au fost adoptate toate măsurile prevăzute la art. 46 alineatul (1), DECLAMENTUL pe care l-a îndeplinit în temeiul articolului 46 alineatul (2) din Convenție în această cauză și DECIDE d.A.L.J. Execution of the European Court of Human Rights Judgment in the case of Aydem Electroluxr / Turkey (17811/04) dated 24 May 2011 ACȚIUNE REPORT (numai în limba engleză) FACTS On 13 March 2001, a search wantrant was issued in respect of forty three houses situated near the Ayd Aplicanții indică faptul că searches had not been conducted in concordance with the domestic law on the ground that they were conducted in the absence of a judge or another official precribed by law. Even the aplicants themselves had not had the oportunity to see the content of the search wantr. According to the aplicants, the search warrant had been valdly worded and was issued without solid evidence required by the measure in cearta. Therefore, acording to the aplicants, there was a încălcarea of their right to respect for their home set out in Article 8 of the European Convention of Human Rights (ECHR). CONTENT OF THE JUDGMENT The Court found that there had been been ordered in the context of a criminal investigation or criminal procesedings against one of the family. It had not been established, or even alleged, that the applicants had been suspected of any offence. The search conducted at the applicants. home was in fact part of a masiv police operation, systematically afecting every home located in the immediate vicinity of the închisoare. The Court further noted that the search warrant had been valdly worded. It provided no information on the reason for the measure or the objects to be sought, andthus granted the police offices wide powers. Yet a search warant was required to contain a minim of information allowing for review of whet the officers who executed it had respectd the want's video. The search had been conducted in the absence of a judge or of a local councillor, in violation of Turkish law. Finally the Court noted that the prosecutor ha Merely gathered statistici from the police officers, and acceptd them without reservation. He had not submitted this question to further exaction, which would have indicated a genuine willingness to establish thefacts. Nor had the criminal proceedings done so. C. INDIVIDUAL MEASURI: Just satisfaction The just satisfaction amount amount awarded by the Court has been paid to the aplicants in due time and the documentating payment have been submitted to the Department of the Execution of Judgments. There is no other individual measure to be taken in the present judgment.GENERAL MEASURIs: Translation and publicity of the judgment: The judgment of the Court in the case of Aydem Electroluxr was translated into Turkish and publicityshed on the website of the Human Rights Department of the Ministry of Justice. This judgment is available at http://www.inhak.adalet.gov.tr/ara/karar/aydemir.pdf The circulation of the judgment to the authorities: The translated judgment was circulated to the support authorities such as the Human Rights Inquiry Committee of the Turkish Grand National Assembly, the Constitutional Court, the Court of Cassation, the Ministry of Interior, the Ministry of Finance and the court that rended the judgment. Legislative aranjaments: The forma Code of Criminal Procedure (Law No. 1412) which was in force at the time of the incident was abolished on 1 June 2005. on the same date, the new Code of Criminal Procedure (CCP) (Law No. 5271) came into force, which sets out new standards for the protective measures includeding the search procesdure. The provisions of the abolished Code of Criminal Procedure regarding the search procesure were regulated in Articles 94 to 104. In these articles, procedural requirements in provening a search wantrant, persons to be present in the course of a search, the procesures to be followed during a search conducted at midnight were set out. However, the care se referă la articole did not include the puncts stated in the Court's Aydem Electroluxr judgment. In the current CPC (Law No. 5271), the search measure is regulated in a substantially detailed manner as the other protective measures. art. 119 of the CPC provides who may is a search want and the elements that need to be inclusded in a search want. The search want or or order shall clearly includede; (a) justifying reasons; (b) the person with respect to whom the search shall be conducted, the address of the dwelling or the place to be searhied, or the material that is to be searched; (c) the validity period. Furtermore, in the Regulations on Judicial and Preventive Searches which was publicutshed in the Official Gazette and entered into force on the same date as the CPC, supports on search measure is regularated in a more detailed manner than in the CPC. Thus, as also stated in the Court's judgment, a control mecanism is established allowing for the authorities to verify whether there has been complimente with the details indicated in the search wantrant. Acording to the Regulation, a search want may be issued for a person, only on condition that there is a reasonable doubt. Taking the right to respect for private and family life into considertion, the concept of reasonable doubt has been subjected to strict conditions.Acording to the Article 6 of the Regulation. "Reasonable doubt is the general doubt against substantialfacts with respect to flow of life. Reasonable doubt is determined by taking all the circumstances into account such as data and place of the search, conduct of the raported person and others accompanying him, and calificare of the material searched by the authorities. Restituibil doubt must be based on incriminating information and other indications supporting the complaint. Doubt must be based on substantialfacts. Substantialfacts, which require envisaging that a cert thing will be found after the search and a certe person will be arrested, must exist." It is the judge who has the power to decision on a judicial search, under Article 7 of the above mentioned Regulation. Furtermore, when police officials claim to have a search warrant issued, they must applications to the public prosecutor after preparing a detailed and justited report indicating the caus of the reasonable doubt. art. 12 din Regulamentul sets out the requirements to be submitted after the search, upon the request of the person in respect of whom a search want has been issued. This Article reads as folows: "At the end of the search conducted acording to the Article 7, upon the request of the person who has been searched document or documents which included the following information shall be given to him/her; a) whether the search has been conducted 1) pentru reason that the person is a suspect or acuzăd, and there is reasonable suspect priveghiing that she/he might he caught or that evidence of infraction might be obtained, 2) for the am that the suspect or acuză to be caught or that evidence of criminality to be obtained, (b) natura infracțiunii subiective la investigație sau prosecution in the case that the suspect or acuză in respect of whom there is reasonable suspect that she/he might be caught or evidence of infraction be obtained through search of the person hersself/himself, properties, house, workplace or other pieces belonging to her/him, c) lista de substanțe care este confiscated and taken under protection; (d) căsuța în care nimic nu a fost obtained to prove the suspect to be right, e) opinie și submisii ale personei care a fost văzută uitându-se la overship of the confiscated material, Un punct important pentru a fi menționated here is that what will be about the pozition of the public officials conducting the search unlawfully. According to the Article 120 of the TCC (Turkish Criminal Code) (Law No. 5237) that came into force after the Court judgment in the case of Aydem "A public official who performs an unlawful search on a person or on personal belongings, shall be sended to imprisonment for a term of tree months to one year." According to this article, police officers will not be credit to conduction a search, unless there is a duly regulated search want. Their contrary behaviour will be investgated by prosecutors notwithstanding an existing complaint, and be subject to criminal procedeedings. It is clearly seen that, the provisions of the CC P (Law No. 5237) and the Regulation on Judicial and Preventive Search are now fully in line with the standards put forward in the Court's case law, and in the manner to protect individuals against arbitrary intervention of police offiers. 4. Training and Awareness Raising Activeities: On 15-17 November 2011, a High Level Conference followed by a two-day workshop was organizad by the General Directorate of International Law and Foreign Affairs. In this Conference, 6 working groups were established in the context of articolele of the EQR in order to identify the problems and posibil solutions in the light of the Court's case-law. In una dintre working groups in which the legislation reference right to respect for private and family set out in Article 8 of the ECHR and the problems encountered in Practice were discussed, legislative and Practical aspects of the problem were elaborated. In the working group which consisted of representatives of the Court of Cassation, the Council of State, various departments of the Ministry of Justice and representatives of other institutions, propused solutions in line with the Court's jurisprudence with respect to the search measure were submitted. It was conclusioned that the problem had been oriinated from the Practice folowing new legislative aranjaments and, prin urmare, that trening activities strugurig awareness would need to be given priority. In this context, the High Council of Judges and Prosecutors (HCJP) and the Justice Academy held a simpozium on 12 March 2012, on the application of the protective measures and the jurisprudence of the Court, for the first time following the establishment of the tribunals authorised under the Article 250 of the CPC, with the participation of judge and prosecutors taking office in these tribunals. Between 13 and 22 March 2012, judges and prosecutors taking office in these scurts participated in vocational trening in which the subjects of the simpozion were deliberated in detail. The simpozium started with the speeches of the President of the Justice Academy, the Vice President of the HCJP and the Minister of Justice, and ended with două sesiuni themed "the Practices of the Search Measures in the light of the Practices of the European Court of Human Rights" and "Freedom of Expression and Responsibility of the Media in the light of the Judgments of the European Court of Human Rights" Outstanding academicians of the country, representative of supreme Judicial authorities, a jurnalist, a judge hearing aparts in Italy and a Head of Turkish Division of the Court participated and made presentations in the seminar which lasted one day. Moreover, common Project with the Council of Europe on "The Improvement of the Criminal Justice System" aims to improve the Criminal Justice System of Turkey and to improve the implementation of uman rights standards in Practice. During the course of the Project, Study visiness will be made to pilot scurts in respect of protective measures which also includede the search procesue. Training curriculum will be pregated for the Justice Academy and seminars will be organizated. E. Execution of the Judgment: As stated above, owing to thefact that the individual and general measures necessary for the execution of the judgment in question are taken, it is considered that the Turkish Government has founied its set out in the Aydem. Therefore the Committee of Ministers is invitated to close its examination. [1] Numai limba engleză.

Résolution CM/ResDH(2013)252

Aydemir contre Turquie

Exécution de l’arrêt de la Cour européenne des droits de l’homme

Requête n°

Affaire

Arrêt du

Définitif le

17811/04

AYDEMIR

24/05/2011

24/08/2011

(adoptée par le Comité des Ministres le 5 décembre 2013,

lors de la 1186e réunion des Délégués des Ministres)

Le Comité des Ministres, en vertu de l’article 46, paragraphe 2, de la Convention de sauvegarde des droits de l’homme et des libertés fondamentales, qui prévoit que le Comité surveille l’exécution des arrêts définitifs de la Cour européenne des droits de l’homme (ci-après nommées «

la Convention

» et «

la Cour

»),

Vu l’arrêt définitif transmis par la Cour au Comité dans cette affaire et la violation constatée

;

Rappelant l’obligation de l’Etat défendeur, en vertu de l’article 46, paragraphe

1, de la Convention, de se conformer aux arrêts définitifs dans les litiges auxquels il est partie et que cette obligation implique, outre le paiement de la satisfaction équitable octroyée par la Cour, l’adoption par les autorités de l’Etat défendeur, si nécessaire

:

-

de mesures individuelles pour mettre fin aux violations constatées et en effacer les conséquences, dans la mesure du possible par

restitutio in integrum

;

et

-

de mesures générales permettant de prévenir des violations semblables

;

Ayant invité le gouvernement de l’Etat défendeur à informer le Comité des mesures prises pour se conformer à l’obligation susmentionnée

;

Ayant examiné le bilan d’action fourni par le gouvernement indiquant les mesures adoptées afin d’exécuter l’arrêt, y compris les informations fournies en ce qui concerne le paiement de la satisfaction équitable octroyée par la Cour (voir document

DH-DD(2012)743

[1]

)

;

S’étant assuré que toutes les mesures requises par l’article 46, paragraphe 1, ont été adoptées,

DECLARE qu’il a rempli ses fonctions en vertu de l’article 46, paragraphe 2, de la Convention dans cette affaire et

DECIDE d’en clore l’examen.

Execution of the European Court of Human Rights

Judgment in the case of Aydemır / Turkey (17811/04) dated 24 May 2011

ACTION REPORT

(anglais uniquement)

A.

FACTS

On 13 March 2001, a search warrant was issued in respect of forty three houses situated near the Aydın Prison. The searches were intended to prevent any assistance being provided to escaping prisoners via a tunnel. An additional search warrant was issued in respect of six addresses including the applicants’ house. The applicants indicated that the searches had not been conducted in accordance with the domestic law on the ground that they were conducted in the absence of a judge or another official prescribed by law. Even the applicants themselves had not had the opportunity to see the content of the search warrant. According to the applicants, the search warrant had been vaguely worded and was issued without solid evidence required by the measure in dispute. Therefore, according to the applicants, there was a violation of their right to respect for their home set out in Article 8 of the European Convention of Human Rights (ECHR).

B.

CONTENT OF THE JUDGMENT

The Court found that there had been a violation of Article 8 of the ECHR. In reaching this conclusion the Court held that the search of the applicants' home had not been ordered in the context of a criminal investigation or criminal proceedings against one of the family. It had not been established, or even alleged, that the applicants had been suspected of any offence. The search conducted at the applicants’ home was in fact part of a massive police operation, systematically affecting every home located in the immediate vicinity of the prison.

The Court further noted that the search warrant had been vaguely worded. It provided no information on the reason for the measure or the objects to be sought, and thus granted the police officers wide powers. Yet a search warrant was required to contain a minimum of information allowing for review of whet her the officers who executed it had respected the warrant's scope. The search had been conducted in the absence of a judge or of a local councillor, in violation of Turkish law. Finally the Court noted that the prosecutor had merely gathered statements from the police officers, and accepted them without reservation. He had not submitted this question to further exanimation, which would have indicated a genuine willingness to establish the facts. Nor had the criminal proceedings done so.

C. INDIVIDUAL MEASURES:

Just satisfaction

The just satisfaction amount awarded by the Court has been paid to the applicants in due time and the documents indicating payment have been submitted to the Department of the Execution of Judgments. There is no other individual measure to be taken in the present judgment.

D.

GENERAL MEASURES:

1.

Translation and publication of the judgment:

The judgment of the Court in the case of Aydemır was translated into Turkish and published on the website of the Human Rights Department of the Ministry of Justice. This judgment is available at

http://www.inhak.adalet.gov.tr/ara/karar/aydemir.pdf

.

2.

The circulation of the judgment to the relevant authorities:

The translated judgment was circulated to the relevant authorities such as the Human Rights Inquiry Committee of the Turkish Grand National Assembly, the Constitutional Court, the Court of Cassation, the Ministry of Interior, the Ministry of Finance and the court that rendered the judgment.

3.

Legislative arrangements:

The former Code of Criminal Procedure (Law No. 1412) which was in force at the time of the incident was abolished on 1 June 2005. On the same date, the new Code of Criminal Procedure (CCP) (Law No. 5271) came into force, which sets out new standards for the protective measures including the search procedure.

The provisions of the abolished Code of Criminal Procedure regarding the search procedure were regulated in Articles 94 to 104. In these articles, procedural requirements in issuing a search warrant, persons to be present in the course of a search, the procedures to be followed during a search conducted at midnight were set out. However, the relevant articles did not include the points stated in the Court's Aydemır judgment.

In the current CCP (Law No. 5271), the search measure is regulated in a substantially detailed manner as the other protective measures. Article 119 of the CCP provides who may issue a search warrant and the elements that need to be included in a search warrant.

The search warrant or order shall clearly include;

a) justifying reasons;

b) the person with respect to whom the search shall be conducted, the address of the dwelling or the place to be searched, or the material that is to be searched;

c) the validity period.

Furthermore, in the Regulations on Judicial and Preventive Searches which was published in the Official Gazette and entered into force on the same date as the CCP, provisions on search measure is regulated in a more detailed manner than in the CCP. Thus, as also stated in the Court's judgment, a control mechanism is established allowing for the authorities to verify whether there has been compliance with the details indicated in the search warrant.

According to the Regulation, a search warrant may be issued for a person, only on condition that there is a reasonable doubt. Taking the right to respect for private and family life into consideration, the concept of reasonable doubt has been subjected to strict conditions.

According to the Article 6 of the Regulation.

"Reasonable doubt is the general doubt against substantial facts with respect to flow of life. Reasonable doubt is determined by taking all the circumstances into account such as date and place of the search, conduct of the related person and others accompanying him, and qualification of the material searched by the authorities.

Reasonable doubt must be based on incriminating information and other indications supporting the complaint.

Doubt must be based on substantial facts.

Substantial facts, which require envisaging that a certain thing will be found after the search and a certain person will be arrested, must exist."

It is the judge who has the power to decide on a judicial search, under Article 7 of the above mentioned Regulation. Furthermore, when police officers claim to have a search warrant issued, they must apply to the public prosecutor after preparing a detailed and justified report indicating the causes of the reasonable doubt.

Article 12 of the Regulation sets out the requirements to be submitted after the search, upon the request of the person in respect of whom a search warrant has been issued. This Article reads as follows:

"At the end of the search conducted according to the Article 7, upon the request of the person who has been searched document or documents which include the following information shall be given to him/her;

a) whether the search has been conducted

1) for the reason that the person is a suspect or accused, and there is reasonable suspicion regarding that she/he might he caught or that evidence of crime might be obtained,

2) for the aim that the suspect or accused to be caught or that evidence of crime to be obtained,

b) nature of the crime subject to investigation or prosecution in the case that the suspect or accused in respect of whom there is reasonable suspicion that she/he might be caught or evidence of crime might be obtained through search of the person herself/himself, properties, house, workplace or other places belonging to her/him,

c) list of material that is confiscated and taken under protection,

d) the case in which nothing has been obtained to prove the suspicion to be right,

e) opinion and submissions of the person who has been searched regarding the ownership of the confiscated material,

An important point required to be mentioned here is that what will be about the position of the public officials conducting the search unlawfully. According to the Article 120 of the TCC (Turkish Criminal Code) (Law No. 5237) that came into force after the Court judgment in the case of Aydemır v. Turkey,

"A public official who performs an unlawful search on a person or on his personal belongings, shall be sentenced to imprisonment for a term of three months to one year."

According to this article, police officers will not be able to conduct a search, unless there is a duly regulated search warrant. Their contrary behaviour will be investigated by prosecutors notwithstanding an existing complaint, and be subject to criminal proceedings.

It is clearly seen that, the provisions of the CC P (Law No. 5237) and the Regulation on Judicial and Preventive Search are now fully in line with the standards put forward in the Court's case law, and in the manner to protect individuals against arbitrary intervention of police officers.

On 15-17 November 2011, a High Level Conference followed by a two-day workshop was organised by the General Directorate of International Law and Foreign Affairs. In this Conference, 6 working groups were established in the context of articles of the ECHR in order to identify the problems and possible solutions in the light of the Court's case-law. In one of the working groups in which the legislation concerning right to respect for private and family life set out in Article 8 of the ECHR and the problems encountered in practice were discussed, legislative and practical aspects of the problem were elaborated. In the working group which consisted of representatives of the Court of Cassation, the Council of State, various departments of the Ministry of Justice and representatives of other relevant institutions, proposed solutions in line with the Court's jurisprudence with respect to the search measure were submitted. It was concluded that the problem had been originated from the practice following new legislative arrangements and, therefore, that training activities raising awareness would need to be given priority.

In this context, the High Council of Judges and Prosecutors (HCJP) and the Justice Academy held a symposium on 12 March 2012, on the application of the protective measures and the jurisprudence of the Court, for the first time following the establishment of the tribunals authorised under the Article 250 of the CCP, with the participation of judges and prosecutors taking office in these tribunals. Between 13 and 22 March 2012, judges and prosecutors taking office in these courts participated in vocational training in which the subjects of the symposium were deliberated in detail.

The symposium started with the speeches of the President of the Justice Academy, the Vice President of the HCJP and the Minister of Justice, and ended with two sessions themed "the Practices of the Search Measures in the light of the Practices of the European Court of Human Rights" and "Freedom of Expression and Responsibility of the Media in the light of the Judgments of the European Court of Human Rights". Outstanding academicians of the country, representatives of supreme judicial authorities, a journalist, a judge hearing relevant cases in Italy and a Head of Turkish Division of the Court participated and made presentations in the seminar which lasted one day.

Moreover, common Project with the Council of Europe on "the Improvement of the Criminal justice System" aims to improve the Criminal Justice System of Turkey and to improve the implementation of human rights standards in practice.

During the course of the Project, study visits will be made to pilot courts in respect of protective measures which also include the search procedure. Training curriculum will be prepared for the Justice Academy and seminars will be organised.

E. Execution of the Judgment:

As stated above, owing to the fact that the individual and general measures necessary for the execution of the judgment in question are taken, it is considered that the Turkish Government has fulfilled its obligations set out in the Aydemır judgment. Therefore the Committee of Ministers is invited to close its examination.

[1]

Anglais uniquement.