CASE OF CEMALETTIN CANLI v. TURKEY
Violation of Art. 8;Non-pecuniary damage - award
Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
5. The applicant was born in 1969 and lives in Ankara. 6. In 1990 he was prosecuted for his alleged membership of an illegal organisation, namely Dev-Genç (“Revolutionary Youth”) but was acquitted on 25 September 1990. Another set of criminal proceedings brought against him under Article 141 of the Criminal Code for membership of another illegal organisation, namely Dev-Yol (“Revolutionary Path”), were discontinued in 1990 following the repeal of that provision. 7. On 23 August 2003 the applicant was on his way to a demonstration in Ankara, organised by the Confederation of Public Workers’ Unions. He was arrested by the police, who allegedly beat him up. He was taken to a police station. A police report drawn up the same day stated that the applicant had a previous record for terrorist related activity in 1990. 8. On 24 August 2003 the Ankara prosecutor filed an indictment, accusing the applicant and 25 other persons of contravening the Demonstrations Act, and charged them with the offences of damaging State property and resisting arrest by using force. 9. While the criminal proceedings were pending before the Ankara Criminal Court of First Instance (hereinafter “the Ankara court”), a police report entitled “information form on additional offences” (Ek Suç Bildirme Formu) was submitted to the Ankara court. In the report, under the heading “Records of Guilt” (Suçluluk Kayıtları), were two entries concerning the applicant which read as follows: “1- Member of Dev-Yol, 14/03/1990, Political Offences Branch [of the Police], 3371; 2- Member of Revolutionary Youth, 2/11/1990, Political Offences Branch [of the Police], 14034”. 10. The report, which also included the applicant’s fingerprints, address and birth registry details, had been drawn up in accordance with Article 12 of the Police Regulations on Fingerprinting, which empowered the police to keep such details on persons accused or convicted of certain offences. 11. On 27 January 2004 the applicant submitted a complaint to the prosecutor and brought to the prosecutor’s attention his acquittal in 1990 of the offence of membership of the illegal organisation Dev-Genç, and the discontinuation in 1990 of the criminal proceedings concerning his alleged membership of Dev-Yol. The applicant drew attention to the fact that the Police Regulations on Fingerprinting also required the police to include in their records any acquittals or discontinuations of criminal proceedings. He asked the prosecutor to prosecute the police officers who had neglected their duties by failing to comply with the Regulations. 12. In his complaint the applicant further argued that the police report as it stood infringed his right to the presumption of innocence protected by Article 6 of the European Convention on Human Rights. He was a sociologist and the author of a number of publications. He drew the attention of the prosecutor to the national press which had reported that “one of the persons arrested [in the demonstration] was a member of Dev-Genç”. He submitted that he was now regarded as a member of illegal organisations and this had adverse effects on his professional life and was detrimental to his psychological integrity. 13. On 11 February 2004 the prosecutor dismissed the applicant’s request for the police officers to be prosecuted. The prosecutor considered that the officers had not attempted to mislead anyone; all they had done was to forward to a criminal court official records of past incidents concerning the applicant. 14. The applicant lodged an objection against the prosecutor’s decision and argued that the prosecutor had not examined or even mentioned in his decision the Regulations in question before deciding not to prosecute the police officers. He further complained that his rights under the European Convention on Human Rights, in particular his rights to a fair trial and to respect for his private and family life, had been breached. 15. The applicant’s objection was rejected by the Sincan Assize Court on 17 March 2004. 16. On 8 December 2005 the applicant was acquitted in the criminal proceedings which had been brought against him on 24 August 2003 (see paragraph 8 above). 17. According to Article 230 of the Criminal Code in force at the time of the events, it was an offence for a public servant to delay in carrying out or to omit to carry out his or her duties. Moreover, according to Article 26 of the Police Regulations on Fingerprinting, all decisions relating to the accusations mentioned in police reports – such as decisions rendered by prosecutors not to prosecute, court decisions on acquittals, and decisions to discontinue criminal proceedings – should also be included in the reports and a certified copy of such decisions should be attached to them. Competent authorities requiring information on the person in question should be provided with the reports as well as with the decisions relating to the accusations mentioned in them. The Council of Europe has examined questions of data protection and concluded the Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data. It came into force on 1 October 1985 and its purpose is “to secure ... for every individual ... respect for his rights and fundamental freedoms, and in particular his right to privacy with regard to automatic processing of personal data relating to him” (Article 1), such personal data being defined in Article 2 as “any information relating to an identified or identifiable individual”.