CEDH · CASELAW;CLIN;ENG — 6 décembre 2005

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Turkey - 29871/96 Judgment 6.12.2005 [Section II] Article 8 Article 8-1 Respect for private life Confiscation of passport and refusal to return it throughout long trial of applicant who lived and worked with his family in another country: violation   Facts : The applicant is a Turkish national who, in 1975, enrolled at a university in Germany. He married a Turkish national there in 1979 and became a social worker. The couple had two children, born in 1981 and 1986, who attended school in Germany, where they were living. In 1984 a judicial investigation was opened in Turkey in respect of the applicant, who was accused of acts contrary to the national interest committed abroad. The applicant was arrested in February 1992 while on a trip to Turkey to visit his family and was held in police custody for seven days. His passport was confiscated and even after he had been released his passport was not returned to him. Following the applicant’s arrest in Turkey, his wife and children left Germany to join him. In April 1992 the applicant was charged with separatist activities against the State and committed for trial in the Assize Court. During the proceedings he applied several times to recover his passport, but his requests were denied. The applicant received no explanations for the refusal and he was not barred from leaving the country by an order of an Assize Court. The applicant complained of the excessive length of the proceedings against him and of his inability to return to Germany. The proceedings were constantly adjourned pending receipt of information from the German authorities concerning the applicant’s involvement in the acts he stood accused of. There being no evidence against him, the Assize Court eventually acquitted the applicant in July 1999. He was issued with a passport and was able to return to Germany with his wife and children. Law : Article 6(1) – The Court considered that the criminal proceedings against the applicant, having lasted for about 15 years, had failed to satisfy the “reasonable time” requirement. Conclusion : violation (unanimously). Article 8 – The confiscation of the applicant’s passport and the administrative authorities’ refusal to return it, over a number of years, had constituted interference with the exercise of his right to respect for his private life, since sufficiently strong personal ties were likely to be seriously affected by that measure. The applicant had been living in Germany for 17 years. He had moved there at the age of 22 to attend university. He had married in Germany and his two children had been born there. The family had been living in that country and the applicant and his wife had found employment there as social workers. The confiscation of the applicant’s passport in 1992, at the time of his arrest, had been in accordance with the law and had pursued at least one of the “legitimate aims” referred to in Article 8, namely “protection of national security” and/or “prevention of disorder or crime”. As to whether the interference had been necessary in a democratic society, the longer the proceedings continued without any progress being made and without any evidence against the applicant being forthcoming, the weaker the interest in pursuing the legitimate aim became. Moreover, the more time went by, the more the applicant’s enjoyment of his freedom of movement, which in the present case was one aspect of his right to respect for his private life, should have prevailed over the requirements of national security or the prevention of a criminal offence. During the 15 years of proceedings in which the applicant had been prevented from leaving the country, there had never been any evidence in the case file to suggest that there was a danger to national security or a risk of a criminal offence being committed. The absence of such a risk was moreover confirmed by the fact that the Assize Court had never given an order barring the applicant from leaving the country. In addition, the administrative authorities, for their part, had never stated the grounds for the measure of prohibition. In an age when freedom of movement, especially across borders, was regarded as essential for the full development of private life, especially for people like the applicant with family, occupational and economic ties in more than one country, denial of that freedom by the State without any good reason constituted a serious failure on its part to fulfil its obligations to persons under its jurisdiction. The fact that “freedom of movement” was guaranteed as such under Article 2 of Protocol no. 4, which had been signed but not ratified by Turkey, had no bearing on that finding since a single fact might entail a breach of more than one provision of the Convention and the Protocols. Accordingly, maintaining the prohibition on leaving Turkish territory no longer satisfied a “pressing social need”. Conclusion: Violation (unanimously). Article 41 – The Court made an award in respect of the pecuniary and non-pecuniary damage sustained and for costs and expenses.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes