PRESS RELEASE

25/9/2020

Press Release No: Individual Application 58/20

Press Release concerning the Judgment Finding a Violation of the Right to an Effective Remedy due to the Dismissal of the Applicant’s Action for Compensation

The Facts

A decision of non-prosecution was issued by the incumbent chief public prosecutor’s office (“the prosecutor’s office”) with respect to the applicant whose telephone conversations had been wiretapped and intercepted during the investigation conducted against him. The applicant brought an action for compensation, maintaining that the preventive measure in the form of interception of his communication had been applied unlawfully for over 2 years; and that despite the decision ordering their destruction, the records of his communication had been sent to several courts, downloaded to the National Judiciary Informatics System (“UYAP”) and thereby made public. The incumbent assize court however dismissed the action. The applicant’s appeal against the first instance decision was also dismissed by the Regional Court of Appeal.

The Applicant’s Allegations

Indicating that the records obtained as a result of the interception of his communication had not been destroyed but rather made public, the applicant maintained that there had been a violation of the right to an effective remedy in conjunction with the freedom of communication due to the dismissal of his action for compensation.

The Court’s Assessment

The applicant’s case concerns the lack of an effective remedy in practice whereby he could raise his claims that he had suffered non-pecuniary damage due to the relevant authorities’ failure to destroy the records of his intercepted communication despite the decision of the prosecutor’s office ordering their destruction.

The Code of Criminal Procedures no. 5271 sets forth that an action for compensation may be brought against the State on account of the decisions issued, or acts performed, by judges and prosecutors (except for the circumstances specified in the Code). In this sense, a legal remedy has been introduced for the individuals claiming that they sustained damage on account of the acts performed by the prosecutors. Therefore, the interpretation to be made by judicial authorities in case of an arguable claim as to the damage caused by such acts or actions plays a key role in ascertaining whether there has been affective remedy for the protection of the given fundamental rights. 

In the present case, the applicant’s complaints that he had suffered non-pecuniary damage due to the infringement of the privacy of his private life as well as of his communication and that this damage had to be compensated were dismissed by the inferior courts as the conditions prescribed in Article 141 of Code no. 5271 were not satisfied.

The applicant submitted concrete and plausible grounds to indicate that his complaints were to be assessed within the scope of Article 141 of Code no. 5271. However, the inferior courts did not provide any explanation as to why these grounds had not been taken into account and why the applicant’s case based on arguable claims had not been considered to fall under Article 141.  Nor did they provide any justification as to the applicant’s allegations that decisions to the contrary had been issued in the actions for compensation brought by the applicant’s co-suspects in respect of whom a decision of the non-prosecution had been also rendered.

It has been observed that the decision to the effect that the particular circumstances of the applicant’s case and his allegations did not fall into the scope of Article 141 § 3 of Code no. 5271 do not contain relevant and sufficient grounds in this respect and is not capable of offering him a reasonable prospect of redress. It has been accordingly considered that the inferior courts’ approach did not provide an opportunity for an effective examination of the alleged violation of the given fundamental rights. As a result, in the particular circumstances of the present case, the applicant was not afforded an effective legal remedy attended by minimum safeguards for the redress of the damage he had sustained within the meaning of the right to respect for private life and the freedom of communication.

Consequently, the Court has found a violation of the right to an effective remedy, safeguarded by Article 40 of the Constitution, in conjunction with Articles 20 and 22 thereof.