ELCI AND OTHERS v. TURKEY JUDGMENT
91
order] the conduct of searches in houses, offices and their annexes belonging to
persons and corporate bodies, as well as in places which are not open to the public.”
583. Articles 90 to 97 of the Code of Criminal Procedure set out the
general terms which governed such measures elsewhere, whereby it was a
Judge or Public Prosecutor who could authorise seizures. In particular,
Article 97 empowered Public Prosecutors and the police to conduct searches
where delay was deemed prejudicial, for which judicial confirmation was
required within three days of the measures being taken (Article 90). Appeals
against irregularities were provided by Articles 307 and 308 of the Code of
Criminal Procedure. Moreover, Articles 193 and 194 of the Criminal Code
made it a criminal offence to unlawfully search an individual's home.
E. Investigation into the activities of lawyers
584. Law No. 1136 on Advocates provided that inquiries about
advocates for offences committed as a result of or during their work should
be carried out by the State Prosecutor of the place where the offence was
committed, after permission had been given by the Ministry of Justice
(Article 58). A file concerning an inquiry carried out pursuant to Article 58
of this Law was assigned to the Criminal Affairs General Directorate of the
Ministry of Justice. In case it was deemed necessary to institute
proceedings, the file would be sent to the State Prosecutor for Serious
Penalties, at the Serious Penalty Court nearest to the place where the
offence had been committed. Those courts held the hearing of the lawyers
concerned (Article 59).
585. Since 1983, Article 9 of Law No. 2845 on the establishment and
judicial practice of the State Security Courts dispensed with the requirement
of ministerial authorisation, leaving the State Security Court Prosecutors
with direct authority to investigate suspect lawyers.
586. However, a circular from the Ministry of Justice dated 14 February
1994 urgently reminded the prosecution authorities that Article 58 of Law
No. 1136 on Advocates, and earlier ministerial directives, required that
inquiries relating to lawyers were to be performed directly by Public
Prosecutors even in matters of “individual offences” (i.e. outside their
professional activities). They could not be left to law enforcement officers.
F. The role of the Convention in domestic law
587. Article 90 of the Constitution provided a constitutional right to
complain to the Convention organs. Moreover, Article 36 of the
Constitution safeguarded the right to put claims before a competent review
body, which provision included the right of individual petition under the
Convention.
588. The Convention prevailed over incompatible domestic law.