The ECHR judgment of 07 February 2017 in the case of Irfan Guzel v. Turkey (application No. 35285/08).
In 2008, the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Turkey.
In the case, the complaint on the lack of reaction to the complaints of the accused about the lawfulness of the measure of wiretapping was successfully considered. The case involved violation of the requirements of Article 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicant was tried by the Assize Court in 2008 and 2009. The charge was based on listening to the applicant's phone calls. The case file, submitted to the applicant, contained a printout of intercepted calls, but not information about the judicial sanction for audition. Defending himself, the applicant asked a question about the lack of sanctions, but to no avail: his question was left unanswered during the hearings and in the conviction.
ISSUES OF LAW
Concerning compliance with Article 8 of the Convention. Complaints about the legality of his telephone calls were unfounded. The presented documents show that the audition was sanctioned by a court decision and that the need for this measure was evaluated by the courts. At the same time, there were no signs of arbitrariness or unreasonableness.
The requirements of Article 8 of the Convention were not violated (unanimously).
Compliance with Article 13 of the Convention in conjunction with Article 8 of the Convention. During the trial the applicant tried to challenge the legality of the audition, but his questions were ignored. Under Turkish law, if the investigation was postponed, the Chief Public Prosecutor should inform the person within two weeks about the termination of the investigation and destroy all the data received during telephone listening. However, the same legislation did not seem to affect the cases brought to court. The applicant could challenge in the adversarial proceedings the content of telephone conversations heard on the basis of the issued judicial authorizations. But the right to challenge printouts that were part of the assessment of the applicant's criminal responsibility for alleged crimes was a separate issue in relation to the possibility of challenging decisions on authorizing the tapping of telephones. The case file does not indicate that the applicant was informed of the availability of court decisions authorizing telephone wiretapping. The Assize Court, which tried the applicant, did not refer to these decisions and did not respond to his allegations that there was no judicial authorization to audition. Moreover, the Government of the respondent State did not cite any examples demonstrating that in such cases there were powers to retrospectively evaluate telephone listening in accordance with the criteria of Article 8 of the Convention in order to provide the applicants with appropriate reparation, if necessary.
The violation of the requirements of Article 13 of the Convention (unanimously) was committed in the case.
In the application of Article 41 of the Convention. The determination of the violation constitutes sufficient fair compensation for non-pecuniary damage, the claim for compensation for pecuniary damage was rejected.