Elçi and Others v. Turkey, Nos. 23145/93, 25091/94, ECtHR (Fourth Section), 13 November 2003

Derogation from the European Convention on Human Rights in time of emergency. Unlawful detention of Turkish lawyers accused of assisting the PKK. Search and seizure in breach of the emergency law.

Art. 5 ECHR
Art. 8 ECHR
Art. 15 ECHR

1. The legal profession plays a crucial role in democratic societies since it contributes to the maintenance of the rule of law and is involved in the administration of justice. Unjust interferences in the free exercise of the legal profession undermine the effective enforcement of the provisions of the Convention, in particular of the guarantees of fair trial and the right to personal security.
 
2. Art. 5, para. 1 ECHR requires that any deprivation of liberty must be both “lawful” and comply with the “procedures prescribed by law”. Even if it is possible to derogate to such provision in the event of a public emergency threatening the life of the nation, the unlawful detention can be legitimised only if it is strictly required by the exigencies of the situation, as established by Art. 15, para. 1 of the Convention.

3. The search of houses and professional offices and the simultaneous seizure of privileged and personal documents in breach of the relevant emergency law constitute an unjustified interference with the right to respect for private and family life. Specifically, the interferences in question are not “in accordance with the law” as required by Art. 8, para. 2 ECHR.
(Case concerning the detention of Turkish lawyers accused of assisting the PKK (Kurdistan Workers' Party)).