CASE OF MUSTAFA SEZGİN TANRIKULU v. TURKEY
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)
Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano
5. The applicant, who was born in 1963, is a member of the Turkish Parliament and lives in Ankara. At the time of the events giving rise to the present application he was the president of the Diyarbakır Bar Association. 6. On 2 June 2005 the daily newspaper Hürriyet reported statements by a senior intelligence officer, who claimed that the National Intelligence Agency of Turkey (“MİT”) had been intercepting the telephone conversations and email correspondence of a number of people on the basis of approximately ninety court decisions over the previous ten years. The intelligence officer stated that the surveillance had been continuous until March 2005, when the MİT had stopped it in order to wait for the entry into force of the new Criminal Code. However, when a bomb attack had occurred in March in Kuşadası, killing a police superintendent, the MİT had gone to the Sixth Division of the Diyarbakır Assize Court (“the Diyarbakır Assize Court”) to seek permission for the interception of communications. 7. In a decision dated 6 May 2005, relying on Article 22 of the Constitution and sections 2, 4, 11 and 16 of Law no. 4422, the Diyarbakır Assize Court had granted the MİT permission to monitor and examine all electronic communications in order to identify and arrest terrorist suspects with international connections as well as to collect evidence and to prevent crime by having early intelligence of it. The MİT had obtained permission to intercept all domestic or international telephone calls and communications provided between 8 April and 30 May 2005 by national telecommunications company Türk Telekom, private mobile network operators and Internet providers and to obtain information contained in SMS, MMS, GPRS and fax communications, as well as caller IDs, correspondents’ IP addresses and all other communication-related information. 8. On 6 June 2005, after reading the article, the applicant filed a criminal complaint with the Diyarbakır Principal Public Prosecutor’s Office against the judge, S.T., who had delivered the Assize Court decision in question, the public prosecutor, the MİT agents who had sought permission to monitor and examine communications, and the MİT agents who had implemented the decision. Relying on a number of newspaper and online articles, the applicant alleged that S.T. had decided that the records of all domestic and international electronic communications between 8 April and 30 May 2005 should be given to the MİT by the telecommunications companies. The judge had made that decision in complete disregard of the legislation then in force and without carrying out any research or requiring proof. The impugned decision had been of a very general nature since it had not included the names of any suspects or indicated the date, location or address of people whose communications would be intercepted. As a consequence, any person, including himself, who had used a landline or mobile telephone to communicate between the above-mentioned dates, had been a victim of the impugned decision. The applicant maintained that the decision had violated his rights protected by Article 8 of the Convention and had also contravened Articles 20 and 23 of the Constitution, which protected private life and the freedom of communication respectively, since the accused had obtained records of his communications and restricted his freedom of communication without any justification. Lastly, the applicant contended that the implementation of the decision, which had been in contravention of section 2 of Law no. 4422, required the punishment of those responsible. 9. On 20 June 2005 the Diyarbakır Principal Public Prosecutor decided to disjoin the case concerning the MİT officials and to register it separately because the prosecution of MİT officials required the Prime Minister’s permission. 10. On 30 September 2005 the Diyarbakır Principal Public Prosecutor decided not to prosecute the MİT officials who had implemented the Diyarbakır Assize Court’s decision. He decided that the MİT officials had merely implemented the court’s decision when intercepting and examining communications and that the implementation of court decisions was required by law and did not constitute a crime. In any event, there was no evidence that the telecommunications companies had given any records to the MİT officials or that they had monitored communications over the Internet. The Public Prosecutor also referred to a decision by the Ankara Principal Public Prosecutor not to prosecute over the same issue (decision no. 2005/35575, 17 June 2005) in relation to a number of other complaints brought against the Diyarbakır Assize Court’s decision. 11. On 25 October 2005 the applicant filed an objection with the Siverek Assize Court against the above decision, alleging that the Diyarbakır Public Prosecutor had failed to carry out an investigation into his complaints concerning an alleged violation of his rights guaranteed by Articles 8 and 13 of the Convention. 12. On 30 November 2005 the Siverek Assize Court dismissed the applicant’s objection, holding that the Principal Public Prosecutor’s decision against prosecution had complied with the legislation since the MİT officials had implemented a court decision and had not committed any offence. 13. On 6 April 2006 the Ministry of Justice decided not to take an action against the public prosecutor and the judge as it found that their acts fell within judicial discretion. The Ministry considered that although the impugned interception decision had been in breach of the national and international legal norms, the aim was to locate the terrorists before they acted and to take the necessary security measures against them. For the Ministry, the decision did not display ‘ill-will’ towards any individual or institution and the complainants had failed to demonstrate that they had been affected by the impugned decision in any way. On an unspecified date the applicant filed an objection against this decision. On 31 October 2007 the Third Division of Ankara Administrative Court dismissed the objection.