SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 38827/02 
by Ahmet YAVUZ and Others 
against Turkey

The European Court of Human Rights (Second Section), sitting on

4 January 2005 as a Chamber composed of:

Mr J.-P. Costa, President
 Mr A.B. Baka
 Mr I. Cabral Barreto
 Mr R. Türmen
 Mr M. Ugrekhelidze
 Mrs E. Fura-Sandström, 
 Ms D. Jočienė, judges
 Mr K. Jungwiert, 
 Mrs A. Mularoni, substitute judges, 
and, Mrs S. Dollé, Section Registrar,

Having regard to the above application lodged on 30 September 2002,

Having deliberated, decides as follows:

THE FACTS

The applicants, Mr Ahmet Yavuz, Mr Abdurrahman Işık and Ms Behiye Öner, are Turkish nationals, who were born in 1966, 1957 and 1957 respectively and live in Izmir. They are represented before the Court by Mr S. Çetinkaya, a lawyer practising in Izmir.

The facts of the case, as submitted by the applicants, may be summarised as follows.

On 29 July 2002 the applicants were taken into police custody by policemen from the Anti-Terrorism Department of the Izmir Security Directorate on suspicion of membership of an illegal organisation, KADEK. Subsequently, their houses were searched with their permission and the incident reports were signed by the applicants. During the search, the police found documents relating to KADEK. Magazines published by KADEK were found in the first applicant's house.

In their police statements, the applicants accepted the charges against them. The first applicant gave a detailed description of his role in KADEK.

On 31 July 2002 the applicants were questioned by the Izmir State Security Court Public Prosecutor. Before the public prosecutor, the applicants denied the charges against them and refuted the statements they had made to the police. The same day the applicants were brought before an investigating judge at the Izmir State Security Court. They confirmed the statements which they had made to the public prosecutor. The court ordered that the first two applicants be placed in detention on remand and released the third applicant.

By an indictment dated 5 August 2002, the public prosecutor initiated criminal proceedings against the applicants in the Izmir State Security Court. The first applicant was accused of membership of KADEK and the last two applicants were accused of aiding and abetting the organisation.

On 19 December 2002 the Izmir State Security Court found the first applicant guilty of the charges against him and sentenced him to twelve years and six months' imprisonment. The court acquitted the second and third applicants of the charges against them. The first applicant appealed. On 9 June 2003 the Court of Cassation upheld the judgment of the first instance court.

COMPLAINTS

The applicants allege that Article 5 of the Convention was breached since their families were not informed of their police custody.

The applicants further allege under Article 6 § 3 of the Convention that they were deprived of their right to legal assistance while in police custody.

Finally, under Article 8 of the Convention, they state that the search conducted in their homes amounted to a breach of their right to respect for their home.

THE LAW

1.  The applicants complain that their families were not informed of their police custody.

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

2.  The applicants further allege under Article 6 § 3 of the Convention that they were deprived of their right to legal assistance while in police custody.

(a)  As regards the first applicant

The Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

(b)  As regards the second and third applicants

The Court observes that the second and the third applicants were acquitted at the end of the criminal proceedings. Any alleged unfairness in their trial before the Izmir State Security Court must be considered to have been rectified by the judgment acquitting them. Thus, they can no longer claim to be victims of the alleged violation (Ketenoğlu v. Turkey, nos. 29360/95 and 29361/95, §§ 36-37, 25 September 2001).

It follows that the second and third applicants' complaint under Article 6 § 3 of the Convention is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

3.  The applicants finally maintain that the search of their homes constituted a breach of Article 8 of the Convention.

The Court recalls that the expression “in accordance with law” within the meaning of Article 8 § 2 requires firstly that the impugned measure should have a legal basis in the domestic law. It also refers to the quality of the law in question, requiring that it should be accessible to the person concerned who must be able to foresee its consequences, and be compatible with the rule of law (Kruslin v. France, judgment of 24 April 1990, Series A no. 176-A, p. 20, § 27, Hacı Oğuz and Baki Oğuz (dec.), no. 26145/95, 5 December 2000, and Bulut v. Turkey (dec.), no. 51480/99, 12 February 2004).

In the present case, pursuant to Article 94 of the Code of Criminal Procedure, the homes of the applicants' were searched by policemen in order to obtain evidence in respect of allegations that the applicants had been aiding and abetting KADEK. The applicants gave their authorisation for the searches to be conducted and subsequently signed the incident reports, which had been drafted in accordance with Article 100 of the Code of Criminal Procedure. Accordingly, the impugned search was a proportionate inference which served a legitimate aim - the prevention of crime - and was carried out in accordance with the clear provisions of domestic legislation.

It follows that there is no appearance of a violation of the applicants' right to respect for their home. This part of the application is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Decides to adjourn the examination of the complaints concerning the first applicant's right to legal assistance during police custody and the failure of the authorities to inform the applicants' families of their arrest;

Declares the remainder of the application inadmissible.

S. Dollé J.-P. Costa 
 Registrar President

YAVUZ AND OTHERS v. TURKEY DECISION


YAVUZ AND OTHERS v. TURKEY DECISION