Search decision
According to TDK's Turkish dictionary, searching means "trying to find someone or something." Search is divided into two as "judicial search" and "preventive search" according to its purpose. Forensic search; It is the process of research carried out in accordance with the Code of Criminal Procedure No. 5271 and other laws, in a person's home, workplace, other places belonging to him, on his person, private papers, belongings and vehicles, by limiting the privacy of a person's private and family life, in order to capture the person, hiding person, suspect, defendant or convict who is under reasonable suspicion of committing a crime or participating or abetting it, and to obtain traces, traces, signs or evidence of the crime. Preventive search is:
- Protection of national security and public order, public health and morals, or the rights and freedoms of others,
- Prevention of crime,
- It is the search process carried out on people, their vehicles, private papers and belongings, in the places specified in the second paragraph, with the purpose of detecting all kinds of weapons, explosives or goods that are prohibited to be carried or possessed, by the decision of a judge or, in cases where delay is harmful, by the written order of the civil authority.
As we mentioned above, there are various types of search. According to their purpose, searches are divided into two: preventive searches and judicial searches. The type of search regulated in the CMK is judicial search.
PREVENTION SEARCH
Provisions regarding preventive searches are in Articles 9 of PVSK No. 2559 and Articles 18-26 of the Regulation on Judicial and Preventive Searches. regulated in the articles. Article 19 of the Regulation defines the preventive search. Prevention search accordingly:
a) Protection of national security and public order, public health and morals, or the rights and freedoms of others,
b) Preventing crime,
c) It is the search process carried out on people, their vehicles, private papers and belongings in the places specified in the second paragraph, with the purpose of detecting all kinds of weapons, explosives or goods that are prohibited to be carried or possessed, by the decision of a judge or, in cases where delay is harmful, by the written order of the civil authority.
Where Can Preventive Search Be Made?
Where a preventive search can be carried out is also regulated in the same article. Accordingly, prevention searches can be made in the following places:
a) At or in the immediate vicinity where meetings and demonstrations within the scope of the Law on Meetings and Demonstrations No. 2911 dated 6/10/1983 are held,
b) In the immediate vicinity of the place where general assembly meetings of private law legal entities, professional organizations or unions that are public institutions are held,
c) In places where people gather or can gather,
d) In order to ensure the freedom of education and training, in the university to be entered, independent faculties or affiliated institutions, in their immediate surroundings and entrance and exit points, in the event that the rector, and in urgent cases, the dean or affiliated institution officials request assistance from the law enforcement in case of the possibility of incidents that cannot be prevented with the resources of the institution, within the education and training institutions at all levels and university buildings and annexes,
e) In public or public places or student dormitories or annexes,
f) At the entrances and exits of settlements,
g) In all kinds of public transportation or moving vehicles,
h) In order to prevent the commission of crimes stipulated in the Anti-Smuggling Law No. 5607, in commercial places, workplaces, entertainment and similar places and their annexes,
i) Within the scope of Article 12 of the Law No. 6222 on the Prevention of Violence and Disorder in Sports, before, during and after the sports competition, around the sports field and on the route to and from the place where the competition will be held,
j) In associations or annexes within the scope of Article 20 of the Law on Associations No. 5253.
Preventive searches cannot be carried out in residences, settlements and private workplaces that are not open to the public and their annexes.
Reasonable Reason for Prevention Search
The first condition of a prevention search is that there is a reasonable reason to achieve the purposes stated above. Here, unlike a judicial search, the concept of "reasonable cause" is used instead of "reasonable suspicion". As it is known, Criminal Procedure procedures and protective measures defined in the CMK only come to the fore upon the existence of suspicion. However, in the prevention search, there is no suspicion that would require an investigation yet. Preventive activities are carried out in the period before the suspicion of crime is learned by the competent authorities.
Reasonable cause refers to a concrete and foreseeable danger. In order to talk about reasonable cause, there must be facts that can be interpreted by experts on the subject. For example, while a police officer can notice whether a person has a gun on him when he looks from the outside, this assessment cannot be made by non-experts. In this respect, it is necessary to distinguish the concepts of reasonable cause and reasonable suspicion.
Who Makes the Preventive Search Decision?
The decision to prevent a search, which is an administrative procedure, is given by the judge as a rule, as it requires interference with fundamental rights and freedoms. In order for a decision to be requested, documents regarding the existence of a concrete danger must first be submitted in writing by the law enforcement to the local authority. In addition, the place and time of the search must be specified in this request. If the civil authority finds the request appropriate, he requests a search warrant from the judge.
The civil chief has the authority to issue a search warrant on his own, provided that it is in writing, in cases where delay is harmful. Pursuant to Article 4 of the Regulation on Judicial and Preventive Searches, a situation in which delay is harmful in terms of a preventive search; It refers to the situation where if immediate action is not taken, national security and public order, general health and public morality or the protection of the rights and freedoms of others will be endangered or damaged, the commission of a crime cannot be prevented, any weapon, explosive substance or item that is prohibited to be carried or possessed will not be detected, and there is no time to get a decision from the judge when necessary. 9/6 of PVSK No. 2559. In accordance with the article, it is accepted that there is a situation where delay is harmful in cases where sports matches, rallies, concerts, festivals, meetings and demonstration marches are organized or where crowds suddenly form.
The decision for a preventive search can only be given by the judge and, in cases where delay is harmful, by the local authority.
When Can a Preventive Search Be Made?
Preventive searches can be done day or night. There is a different situation here than a judicial search. Because, as we will explain below, judicial searches are generally carried out during the day.
The period for which the preventive search decision will be implemented is not limited to a time period. Action is taken according to the situation of danger. A search warrant can be given for hours, or it can also last for days. According to a decision of the General Criminal Assembly of the Supreme Court of Appeals; Since a preventive search is an intervention to the fundamental rights and freedoms of individuals, a long-term preventive search decision given even if there is no reasonable reason will not be lawful, even if it is apparently legal. Likewise, it would be against the law to order a preventive search in a way that would be renewed at regular intervals and give the impression of a general search, without a reasonable reason.
CASES WHERE A PREVENTIVE SEARCH DECISION IS NOT REQUIRED
In cases where an arrest warrant is carried out, it is not necessary to take a separate preventive search decision. Our explanations regarding this situation are included in our review titled Arrest Decision . According to Article 20 of the PVSK:
The police may enter residences, workplaces and their annexes in cases where help is requested or when major dangers such as fire, flood and drowning are reported or seen, and to prevent the commission or continuation of a serious crime. Carrying out the procedures in the relevant article cannot be considered as a search.
According to Article 25 of the Judicial and Preventive Search Regulation, a separate search warrant or decision is not required for searches to be carried out in the following cases:
a) In cases where entry and exit to buildings and all kinds of facilities designated for public service by the state are subject to certain rules, searching the persons or their belongings or vehicles entering the said facilities,
b) In civil airports, ports and border gates, which are within the scope of the additional article 1 of the Provincial Administration Law No. 5442, by passing the buildings, aircraft, ships and all kinds of sea and land vehicles through the
c) Within the scope of Article 11 of the State of Emergency Law No. 2935, in the search of persons and their belongings by the order of the State of Emergency Governor,
d) Within the scope of Article 3 of the Martial Law Law No. 1402, in the search of residences and buildings belonging to organizations such as all kinds of associations, political parties, unions, clubs, workplaces, private and legal entities and their annexes and all kinds of closed and open places, letters, telegrams and other dispatches and persons by order of the martial law commander,
e) Searching the persons or belongings of persons whom the law allows to keep,
f) The police in charge within the framework of the Law No. 298 on Basic Provisions of Elections and Electoral Rolls dated 26/4/1961, in the search of the persons and their belongings of persons suspected of carrying weapons, within the scope of the ban on carrying weapons in Article 79 of the same Law.
Controls at the entrances of private businesses, institutions or enterprises, whether open to the public or not, depend on the consent of those who want to enter them. Those who do not agree to be controlled cannot enter such places. In such places, control is essentially carried out by private security guards. However, preventive searches may also be carried out by law enforcement forces, depending on the special characteristics of these places and the participants. Regardless of any order or decision, he is authorized to check and search his person, vehicle and belongings with technical devices and manually when necessary. (PVSK art.9/7)
INSPECTIONS NOT COUNTED AS SEARCH
The following inspections can be carried out spontaneously by law enforcement when the conditions are met:
a) Hotels, motels, hostels, camping and similar accommodation places, which are considered public rest and entertainment places, opened for the entertainment, rest or accommodation of individuals individually or collectively; casinos, pavilions, taverns, bars, beer halls, restaurants, taverns and similar places with alcoholic beverages; cinema, coffee house and coffee house; Electronic gaming places, regardless of their name, where electronic gaming devices and machines, video and television games that increase knowledge and skill or develop intelligence, provided that there is no gambling or profit intention; Inspection of internet cafes and similar places and such places in land, sea, air and all kinds of transportation vehicles used as fixed or mobile, in terms of general security and public order,
b) Public and public places where gambling is performed and locales belonging to all kinds of private and public institutions and organizations, places where drugs are manufactured, sold, used and kept in violation of the legislation, brothels operating against the legislation, joints and houses and places where prostitution takes place, places where games are played, performances are given, films or video tapes are shown that will harm the indivisible integrity of the State with its territory and nation, the Constitutional order, general security and general morality. Inspection of places and places where broadcasting over the internet is allowed, places that belong to associations, unions, lodges and clubs, professional organizations that are public institutions and similar institutions and organizations and are opened only for the benefit of their members, and those that are determined to have become public places by operating contrary to their internal regulations, after more than one inspection and despite a written warning,
c) Procedures regarding places operated in violation of the provisions in force, and inspection of places that produce and sell audio and video works, regardless of the material on which they are recorded, in violation of general morality and decency,
d) Without prejudice to the exceptions in the law, inspection of alcoholic places such as bars, pavilions, casinos, taverns, and similar places where games are played, such as coffeehouses, which are suspected of employing people under the age of eighteen or of minors under the age of eighteen entering, and whose opening requires permission,
e) Asking people for identification to prevent crime,
f) Inspection of the places specified in the Identity Notification Law No. 1774 dated 26/6/1973,
g) Inspection of motor vehicle traffic document, motor vehicle registration certificate and driver's licenses and the items required to be in the vehicles according to the Highway Traffic Law No. 2918 dated 13/10/1983,
h) Inspection of the licenses and documents of surface vehicles in natural and artificial lakes and rivers that allow surface transportation, and of marine vessels in the seas, and of the licenses, documents and other documents included in the maritime legislation of the owners and users of surface vehicles and seafarers,
i) Inspections in the form of scanning made through electromagnetic devices and detector dogs,
j) Prohibition of those making noise within the scope of Article 183 of the Turkish Penal Code No. 5237,
k) Passport inspections of those entering and exiting the border gates. (Regulation article 18)
Provisions in the Smuggling Law
People who are suspected of hiding smuggled goods in customs halls and customs gates may be searched by customs officers for the purpose of customs control. Any smuggled goods detected as a result of the search are immediately seized. (M9/2)
ITEMS FOUND DURING THE PREVENTION SEARCH
If a criminal element or evidence is found as a result of the preventive search, it will be taken under protection and the situation will be immediately reported to the Chief Public Prosecutor's Office and a new written order will be requested from the Public Prosecutor to carry out the seizure. In cases where the public prosecutor cannot be reached, seizure can also be made with the written order of the law enforcement chief. Any seizure carried out without a judge's decision must be submitted to the judge in charge for approval within twenty-four hours. An item that is within the subject and scope of the preventive search but does not constitute a criminal element, such as a coin or a lighter, is temporarily protected and handed over to the person concerned when the issue that caused the search is over.
The result of the preventive search is reported to the authority or authority that issued the search decision or order. In addition, if criminal elements are found during the search, a special preventive search report is prepared regarding this. In this report, as in the judicial search report, the date and number of the search warrant, the date and number of the written order given if there is no judge's decision, the authority that gave the order, the place where the search was made, the date and time, the subject of the search, the identity information of the person searched, the description information if the name is not given, the address of the place where the search is made, the location of the search if the vehicle is searched and the information of the vehicle, the results of the search, identifying information if there is criminal property seized, the identity information if there are people caught in the search, the description information if the identity cannot be determined, injuries as a result of the search. or whether any material damage has occurred, and the name, surname, registration and title of those who carried out the search. The report is signed by those who participated in the search process and those who are present, and a copy is given to the person concerned. In cases where no criminal element is found, upon the request of the wanted person, he/she is given a document containing the date and number of the search warrant or order, the date and time of the search, the location, and the identity information of the searched person and the searching officer. (YCGK)
FORENSICAL SEARCH
We have made explanations about the preventive search above. In this part of our review, we will include explanations about judicial search, which is a protection measure regulated in the CMK.
Forensic search; It is the process of research carried out in accordance with the Code of Criminal Procedure No. 5271 and other laws, in a person's home, workplace, other places belonging to him, on his person, private papers, belongings and vehicles, by limiting the privacy of a person's private and family life, in order to capture the person, hiding person, suspect, defendant or convict who is under reasonable suspicion of committing a crime or participating or abetting it, and to obtain traces, traces, signs or evidence of the crime.
Judicial search measure is a type of protection measure regulated in the Code of Criminal Procedure. However, the provisions regarding search are not limited only to the Code of Criminal Procedure. As stated in Article 3 of the Regulation on Judicial and Preventive Searches; Police Duties and Powers Law No. 2559, Gendarmerie Organization, Duties and Powers Law No. 2803, Coast Guard Command Law No. 2692, Anti-Smuggling Law No. 5607, Provincial Administration Law No. 5442, Law No. 6222 on the Prevention of Violence and Disorder in Sports, Law No. 5188 on Private Security Services, Rules regarding search are also regulated in the Associations Law No. 5253, the State of Emergency Law No. 2935, the Martial Law Law No. 1402 and the Decree Law No. 485 on the Organization and Duties of the Undersecretariat of Customs.
Forensic search has two purposes. These purposes are obtaining and capturing evidence. The judge needs evidence in order for the trial to be carried out properly. One of the tools to obtain evidence is the search measure. Failure to make an arrest is another situation that will affect the execution of the verdict or the soundness of the trial.
All the protection measures in the Criminal Procedure Code aim to ensure that the trial is carried out in a sound manner by obtaining evidence and the execution of the verdict. Since protective measures cause interference with fundamental rights and freedoms before the verdict, the application of these measures is limited to general and special conditions. Before moving on to the special conditions regarding the search measure, we feel the need to mention the prerequisites of all protection measures regulated in the CMK. These prerequisites are:
1-) There is inconvenience or danger in delay,
2-) Seemingly righteousness,
3-) Moderation.
CONDITIONS OF A JUDICIAL SEARCH – REASONABLE SUSPICION
In terms of judicial search, in addition to the general conditions listed above, there are some other conditions.
Reasonable Doubt
First of all, CMK 116/1. According to the article; If there is a "reasonable" doubt that he can be caught or that evidence of a crime can be obtained; The suspect or defendant's person, belongings, residence, workplace or other places belonging to him may be searched.
The concept of reasonable suspicion is included in the provision as a prerequisite for issuing a search warrant. What should be understood by reasonable suspicion is not clearly regulated in the law. However, Article 6 of the Regulation on Judicial and Preventive Searches regarding reasonable suspicion contains the following provisions:
"Reasonable doubt is the doubt that is generally felt in the face of concrete events according to the flow of life.
Reasonable suspicion is determined by taking into account reasons such as the time and place of the search, the behavior and mannerisms of the person concerned or those with him, and the nature of the goods that the law enforcement officer suspects are being carried.
In reasonable suspicion, there must be evidence supporting the notice or complaint.
The doubt on the mentioned issues must be based on concrete facts."
In order to issue a search warrant, there must be reasonable suspicion that the item or person sought is present at the location where the search will be carried out. The suspicion here should not be considered as suspicion of crime. In other words, in order to issue a search warrant, there must be a simple suspicion that a crime has been committed and a reasonable suspicion that the person or item sought will be found.
In cases where there is no suspicion of crime, a judicial search cannot be made. We explained above that the concepts of reasonable suspicion and reasonable cause are different concepts.
Here, it is necessary to make an evaluation regarding the degree of suspicion of the reports. Because in practice, it is seen that search orders are generally given upon notice.
Three basic points come to the fore in order for the notice to create "a simple initial suspicion based on concrete evidence that criminal evidence can be obtained" that can mobilize the investigation and prosecution authorities:
The first issue is that the person making the report must also state his/her clear identity.
The second point is to provide detailed incident information in the report.
The third point is the anonymous and undetailed notifications that are compatible with the knowledge of the law enforcement, which will be stated below. Law enforcement must take these seriously, too.
If the "reasonable doubt that criminal evidence can be obtained" arises only from the information provided by a person making a confidential report, then two points become important. The first one is the reasons that show that the person giving the information is reliable and arise from the integrity of the event, the second one is the side facts regarding the information given by the person giving the information." (Prof. Dr. Feridun YENİSEY, Prof. Dr. Ayşe NUHOĞLU Criminal Procedure Law Seçkin Publishing 9th Edition p.412)
SEARCH OF THE SUSPECT OR ACCUSED
The persons who can be searched are divided by law into suspects or defendants and other persons. Suspect means the person who is under suspicion of a crime during the investigation phase, and defendant means the person who is tried on suspicion of a crime during the prosecution phase.
According to Article 116 of the CMK; If there is a "reasonable" doubt that he can be caught or that evidence of a crime can be obtained; The suspect or defendant's person, belongings, residence, workplace or other places belonging to him may be searched.
CALLING OTHER PEOPLE
In order to catch the suspect or the accused or to obtain evidence of a crime, another person's person, belongings, residence, workplace or other places belonging to him may be searched.
In these cases, the search is dependent on the existence of events that allow it to be accepted that the person sought or the evidence of the crime is found in the specified places.
This limitation does not apply to the places where the suspect or defendant is located or the places he enters while being monitored. (CMK article 117)
General search conditions also apply to this search type. No discrimination is made regarding other persons. Legal entities, official authorities and departments are also considered other persons. It is also possible to search people who have the right to refrain from testifying. We mentioned above that the existence of reasonable suspicion is a condition for search. This rule also applies to searching other people. In addition, in order to search other people, there must be reasonable suspicion as well as the existence of events that allow it to be accepted that the person being searched or evidence of crime is in the specified places.
As stated in the third paragraph of the article, this limitation does not apply to the places where the suspect or defendant is located or the places he enters while being monitored.
WHO MAKES THE JUDICIAL SEARCH DECISION?
Law enforcement officers may conduct searches upon a judge's decision or upon the written order of the Public Prosecutor in cases where delay is considered harmful, or by the chief law enforcement officer in cases where the Public Prosecutor cannot be reached. However, searches in residences, workplaces and closed areas that are not open to the public can be carried out by a judge's decision or, in cases where delay is harmful, by the written order of the public prosecutor. The results of the search conducted upon the written order of the law enforcement chief are immediately reported to the Chief Public Prosecutor's Office. (CMK 119)
The situation where delay is harmful is defined in the regulation as a situation where if no action is taken immediately, traces, traces, signs and evidence of the crime will be lost, or the possibility of the suspect escaping or not being identified, and when there is no time to take a decision from the judge when necessary.
If there is such a situation, it must be justified. Otherwise, the search will be against the law. An example Supreme Court decision is as follows:
"Although there was a written search warrant given by the Public Prosecutor on the grounds that delay was harmful, the reason for the delay was not specified in the search decision, when the date and time of the search report in the file was examined, the search decision could not be given by the prosecutor's office because the search was made during weekday working hours, the search conducted accordingly was against the procedure and the law, and in the defendant's defense at the stages, he stated that he did not possess the cigarettes subject to the crime for commercial purposes, and the evidence (items) obtained illegally as a result of the illegal search." "Considering that no other evidence could be obtained that would require the defendant's conviction, apart from his acquittal, the decision to convict him instead of his acquittal necessitated reversal." Y7CD. 2021/12185 K.
In order for the law enforcement chief to issue a written search warrant, both the situation in which delay is harmful and the reason why the public prosecutor cannot be reached must be justified.
"In the concrete case; upon the notification of the defendant, the public prosecutor was informed by the law enforcement officers in accordance with Articles 160 et al of the Criminal Procedure Code, and upon receiving the instruction "..taking the officers on duty from their location, conducting body searches with the written instruction of the law enforcement chief, and seizing the 10 TL money found during the body search and submitting it to the judge's approval...", following the written search and seizure order of the law enforcement chief, the defendants were searched and the 10 TL serial number was taken on the defendant. It should not be taken into consideration that a total of 50 TL of money was seized along with the money, but that conducting a body search with the written order of the law enforcement chief without the written order of the Public Prosecutor's Office regarding the search and seizure measure is contrary to Articles 116 et seq. of the Criminal Procedure Code, and in this context, considering that the money seized from the defendant is in the nature of evidence that has not been detected in accordance with the law, after excluding unlawful evidence, the legal status of the defendants should be determined according to the result by evaluating the investigation documents and other evidence subject to the allegation. is wrong." Y5CD. 2020/10085K.
HOW TO SEARCH?
First of all, it should be noted that:
In the search decision or order;
a) The verb that constitutes the reason for the search,
b) The person to be searched, the address of the residence or other place where the search will be made, or the property,
c) The period of time during which the decision or order will be valid is clearly indicated.
The clear identities of those who carried out the search are written in the search report.
For detailed information regarding the execution of the search, the Judicial and Preventive Searches Regulation should be consulted.
Those Who May Be Present at the Search
The owner of the places to be searched or the possessor of the goods may be present during the search; If he is not present, his representative or one of his relatives who has the power to distinguish himself, or a person living with him or his neighbor, shall be present.
In the cases specified in the first paragraph of Article 117, the person in possession and, if not found, the person to be called instead shall be informed about the purpose of the search before starting the search.
The person's lawyer cannot be prevented from being present at the search. (CMK article 120)
The judge or public prosecutor may be present during the search. But this is not a necessity. Despite this, it must be said that the will of the legislator is that the public prosecutor must be present during searches to be carried out in residences or workplaces. However, if the public prosecutor cannot be present, this time CMK art. 119/4 will be applied. Accordingly; In order to search a residence, workplace or other closed place without the presence of the public prosecutor, two people from the local council of elders or neighbors are present. These are called search witnesses. Searches made without complying with this rule will be against the law. An example Supreme Court decision is as follows:
"When it is taken into consideration that the evidence obtained as a result of the said process is against the law and cannot be taken as a basis for a decision by the court according to Article 217/2 of the same Law, as the failure to have two members of the local council or neighbors present during the searches carried out by the law enforcement forces at the defendant's residence without the presence of a public prosecutor constitutes a clear violation of Article 119 of the Criminal Procedure Code No. 5271, the defendant has committed the crime of obscenity (Article 226/3). "Since it is understood that the decision of conviction is not appropriate due to the lack of sufficient, beyond all doubt, definitive and convincing evidence to punish him, it is against the law to reject the appeal application against the said decision on the merits instead of accepting it."
The search to be carried out in military areas is carried out by judicial law enforcement officers with the participation of military authorities under the supervision of the public prosecutor. In cases where delay is dangerous, a search may be carried out by judicial law enforcement officers with the participation of military authorities upon the written order of the public prosecutor.
Searching in Lawyer Offices
No searches can be made in lawyers' offices without the presence of the public prosecutor.
Lawyers' offices can only be searched by court decision and under the supervision of the public prosecutor regarding the incident specified in the decision. The president of the bar association or a lawyer representing him is present during the search.
When the lawyer, the president of the bar association, or the lawyer representing him, whose office is searched for the things decided to be seized as a result of the search, objects by claiming that these belong to the professional relationship between the lawyer and his client, this thing is placed in a separate envelope or package and sealed by those present, and the criminal judge of peace during the investigation phase, the judge or the court during the prosecution phase is requested to make the necessary decision on this issue. When the competent judge determines that the seized thing belongs to a professional relationship between the lawyer and his client, the seized thing is immediately returned to the lawyer and the minutes stating the transaction are eliminated. The decisions provided for in this paragraph are made within twenty-four hours.
In case of seizure in the mail, the procedures specified in the third paragraph shall be applied upon the objection of the lawyer whose office is searched, or the president of the bar association, or the lawyer representing him. (Regulation article 13)
Authority to Examine Documents or Papers
The authority to examine the documents or papers of the person against whom a search procedure is carried out belongs to the public prosecutor and the judge.
The possessor or representative of the documents and papers may also put his own seal or signature. When it is decided to remove the seal and examine the papers in the future, the possessor or his representative or his defense attorney or attorney is summoned to be present in this process; If the call is not followed, necessary action will be taken.
As a result of the examination, documents or papers that are found not to be related to the crime subject to investigation or prosecution are returned to the relevant person. (CMK 122)
As can be understood from the above provision, the authority to examine papers and documents is given to the judge or public prosecutor. The law enforcement does not have the authority to examine documents. Law enforcement can only look at documents without examining them. This is limited to the extent of understanding whether the documents are relevant to the investigation or prosecution.
Letters and documents between the suspect or the accused and persons who may hesitate to testify in accordance with Articles 45 and 46 of the Code of Criminal Procedure No. 5271; It cannot be confiscated as long as it is in the possession of these people.
Document to be Given at the End of the Search
At the end of the search, the person about whom the search procedure is carried out is given, upon his request, a document stating that the search was carried out in accordance with Articles 116 and 117 and the nature of the act subject to investigation or prosecution in the case specified in Article 116, and a notebook containing the list of the goods seized or taken under protection upon his request, and a document stating that if nothing that justifies the suspicion has been obtained.
The documents specified in the first paragraph also include the opinions and claims of the person against whom the search procedure is carried out regarding the ownership of the seized goods.
A complete ledger of the goods taken under protection or confiscated is made and these goods are sealed with an official seal or a mark is affixed. (CMK article 121)
TIME OF FORENSIC SEARCH - SEARCH TO BE CONDUCTED AT NIGHT
According to Article 118 of the CMK:
Night time; The period that starts one hour after sunset and continues until one hour before sunrise,
The situation where delaying is harmful is; It refers to the situation where if immediate action is not taken, the traces, traces, signs and evidence of the crime will disappear, or the possibility of the suspect escaping or not being identified, and there is no time to take a decision from the judge when necessary.
"The search is carried out within the period specified in the decision or written order. Each search decision gives the authority to search only once, unless it contains a provision to the contrary.
Unless there is an emergency that jeopardizes the purpose of the search, a judicial search is carried out during the day.
Forensic searches cannot be carried out in residences, workplaces or other closed places at night. In addition, searches cannot be carried out in these places with the written order of the law enforcement chief. However;
a) In flagrante delicto,
b) In cases where delay is harmful,
c) In case of re-capture of the escaped person or the detainee or convict,
d) Judicial searches can be carried out at night in public rest and entertainment places listed in Article 7 of the Police Duties and Powers Law No. 2559, where everyone can enter and exit at night. (Regulation article 31)
DOCUMENT EXAMINATION AUTHORITY IN FORENSIC SEARCH
The authority to examine the documents or papers of the person against whom a search procedure is carried out belongs to the public prosecutor and the judge.
The possessor or representative of the documents and papers may also put his own seal or signature. When it is decided to remove the seal and examine the papers in the future, the possessor or his representative or his defense attorney or attorney is summoned to be present for this action; If the call is not followed, necessary action will be taken.
As a result of the examination, documents or papers that are found not to be related to the crime subject to investigation or prosecution are returned to the relevant person. (CMK article 122)
SEARCH THAT CAN BE MADE WITHOUT A JUDICIAL SEARCH ORDER
After taking measures to prevent him from escaping or harming himself or others while he is caught, the law enforcement immediately informs the caught person of his legal rights. (CMK article 90/4)
A separate search warrant or decision is not required in the following cases:
a) When a person for whom an arrest warrant is issued, an arrest warrant, or a warrant to bring him by force, or a fugitive for whom an arrest warrant in absentia is issued, is caught, a search will be made on him, at his residence, workplace, settlement, their annexes, and his vehicle in order to catch him,
b) During a rough body search to be carried out by the judge's decision or the written order of the public prosecutor, or directly by the law enforcement, in order to prevent the captured person from harming himself, others, or the law enforcement officers who made the arrest,
c) During the body search of the detained person before being placed in custody,
d) In the searches to be carried out to catch people who are escaping from the hands of law enforcement after being caught lawfully for any reason, or the vehicles, buildings and annexes they entered during their pursuit in order to catch the perpetrator of a crime that is being committed, has just been committed or has signs indicating that it has just been committed,
e) 1) Within the scope of the second paragraph of Article 9 of the Anti-Smuggling Law No. 5607, customs officers search the persons, belongings, loads and vehicles of people suspected of hiding smuggled goods in customs halls and customs gates for customs control,
2) Within the scope of the third paragraph of Article 9 of the Anti-Smuggling Law No. 5607, authorized officers stop persons and all kinds of transport vehicles to be encountered in the customs area, where it is forbidden to enter, exit and pass from places other than the gates and roads determined in accordance with the Customs Law, and search for the goods, cargo and persons of these people and their transportation vehicles, if any,
f) To fulfill the provisions of the law and the order of the superior in Article 24 of the Turkish Penal Code No. 5237, to enter into residences, workplaces and settlements and their annexes, in order to eliminate the life-threatening danger for society or individuals, or upon calls for help from closed places, in searches carried out in flagrante delicto, for reasons of legitimate defense and obligation in Article 25, and for exercising the right in Article 26, with the consent of the person concerned, and other laws. for. (REG. Article 8)
Crime Scene Investigation
In places where crimes are committed, an order or decision is not required for scientific and technical research procedures developed to search for, find and seize evidence that will reveal the cause and effect relationship, to be carried out in public areas where everyone can enter and exit. Crime scene investigation procedures other than the places specified in the first paragraph are carried out upon the written order of the judge or, in cases where delay is considered harmful, the public prosecutor, in accordance with Article 7, or, in cases where the public prosecutor cannot be reached, the law enforcement chief, in places other than residences, workplaces and closed areas that are not open to the public. (REG. Article 9)
COMMENSATION DUE TO SEARCH
Article 141 of the Criminal Procedure Code provides the right to claim compensation due to protective measures. According to paragraph i of the relevant article, persons against whom the search warrant was carried out in an excessive manner have the right to compensation. In order for a compensation lawsuit to be filed, an acquittal decision must be made at the KYOK or prosecution stage as a result of the investigation. The compensation lawsuit must be filed within 3 months or probably within 1 year after the decision becomes final. The defendant is shown as the financial treasure. This case is filed in the High Criminal Court where the suspect or defendant resides.
To claim compensation, the search must be carried out in an excessive manner. This provision should not be considered as formal disproportion. We are of the opinion that compensation may be requested in the presence of situations that constitute unlawfulness that we mentioned in our review subject. The decision of the 12th Criminal Chamber of the Supreme Court of Appeals dated 24.12.2013 and numbered 2013/9105 E. and 2013/30731 K. supports our opinion and the following evaluations have been made on the subject in this decision:
".. In the justification of the decision to reject the claim for compensation, the court stated that "whether or not the search warrant itself and its content are in compliance with the law cannot be subject to compensation, if the search decision is in accordance with the procedure in terms of its formal conditions, it should also be considered lawful, the search decision itself cannot be subject to compensation in accordance with Articles 141 and 142 of the CMK, but if the principle of proportionality is not complied with during the implementation of this decision, this situation may be subject to compensation, documents and evidence that the search decision was carried out excessively." It was announced that the claim for compensation was rejected on the grounds that "there was no excessive search in the incident, and the plaintiff did not suffer any damage as a result of this search."
Search is one of the protection measures regulated in the Code of Criminal Procedure, and articles 141-144 of the same Law indicate the conditions for paying compensation to those who suffered damage due to protection measures. In paragraph (1/i) of Article 141, which regulates the claim for compensation, it is accepted that compensation will be paid for "those against whom a search warrant was carried out excessively" during the criminal investigation and prosecution.
From the regulation of the paragraph, it is generally understood that the claim for compensation should be based not on an unjust search decision or an unlawful search decision, but on an excessive execution of the search decision, and although our Department's practices are in this direction, it is also necessary to evaluate whether a request for compensation can be made for a clearly unlawful search decision.
Article 116 of the Criminal Procedure Code, which regulates the search for the suspect or the accused, states that "If there is reasonable doubt that he can be caught or that evidence of a crime can be obtained; The suspect's or defendant's person, belongings, residence, workplace or other places belonging to him may be searched.
When the search decision, which forms the basis of the claim for compensation, is evaluated from this perspective, it is understood that a search was carried out at the plaintiff's house only upon a phone call, not based on concrete evidence, without reasonable suspicion, and in terms of the request, the concept of "reasonable suspicion" stipulated in the article should also be considered. Although "reasonable suspicion" is not defined in Article 2 of the Law titled "Definitions", in the Judicial and Preventive Search Regulation, reasonable suspicion is defined as "suspicion generally felt in the face of concrete events according to the flow of life", and in the 3rd paragraph of Article 6, where the definition is made, it is stated that in reasonable suspicion, there must be signs that support the notice or complaint.
Article 160/1 of the Code of Criminal Procedure states that "As soon as the Public Prosecutor learns of a situation that gives the impression that a crime has been committed, through notice or any other means, he will immediately begin to investigate the truth of the matter in order to decide whether there is a need to file a public lawsuit." requested and a decision was taken on this issue, therefore, a drug search was carried out in the house of the plaintiff/suspect, based on the search warrant taken by the investigation authorities without any research or examination regarding the notice and without collecting any other evidence. This practice is not in accordance with Articles 116 and 160 of the Criminal Procedure Code, and since it is not a "duly given judge's decision" in Article 21/1 of the Constitution, which provides for the protection of home immunity, it is contrary to the Constitution and Article 8/2 of the European Convention on Human Rights, which provides for the protection of private and family life. "Intervention by a public authority in the exercise of this right may be possible, in a democratic society, to the extent necessary and provided that it is prescribed by law." constitutes a violation of the provision.
As a matter of fact, the European Court of Human Rights, in a recent decision (24 May 2011), determined the principles regarding search warrants as follows.
"Contracting States may decide that measures such as house searches are necessary to collect material evidence for some crimes. In such cases, the ECHR checks the relevance and adequacy of the reasons put forward to justify the intervention and their compliance with the principle of proportionality.
At this point, the ECHR must first ensure that domestic laws and relevant practices safeguard individuals against abuses in an appropriate and effective manner.
The ECtHR must then examine the particular circumstances of each case to determine whether the impugned interference was, in practice, proportionate to the aim pursued. In doing so, the ECHR takes into account criteria such as the seriousness of the crime requiring the search, the circumstances in which the search warrant was issued and how it was issued, in particular other elements of evidence available before the search, the content and scope of the search warrant, especially in terms of the nature of the place to be searched and the measures taken to ensure that the intervention does not have unreasonable effects, and finally its possible repercussions on the reputation of the person targeted by the search (Buck case against Germany, no. 41604/98, paragraph 45, CEDH 2005). 8209;IV, and Smirnov, relevant chapter, pg. 44).
In the present case, the ECHR first notes that the disputed search was not conducted within the scope of a criminal investigation or criminal case against the persons concerned. It was neither established nor alleged that the applicants were suspected of any crime.
It was not clearly stated on which evidence elements the judge issued the disputed search warrant, and only the very general, short and concise explanations in the letter sent by the police department to the public prosecutor were sufficient. At this point, the ECHR notes the findings of the criminal courts that there is no concrete evidence that would require a search in the homes of the relevant persons.
Concerning the content and scope of the search warrant, the ECHR finds that the document was written with imprecise expressions. While giving the search warrant, the judge did not impose any restrictions on any issue, only stating the date and that it was a one-off. This order, which does not contain any information about the reason for the search and what is being searched, gives the police a very broad authority. However, in the opinion of the ECHR, a search warrant must contain minimum information that allows control of whether the police officers conducting the search comply with the designated research area (Van Rossem, relevant section, para. 45).
Finally, regarding the way the search was conducted, the ECHR observes that neither a judge/prosecutor nor the village headman, who was required to be present in cases where there was no judge/prosecutor according to Article 97 of the former Code of Criminal Procedure, was present during the search.
The ECHR concludes that this controversial intervention, which should have been carried out in the interest of the democratic society and taking into account the protection of home immunity, does not show a reasonable proportion to the legitimate aim pursued. " (AYDEMİR v. Türkiye CASE, Application No: 17811/04)
When the concrete case is evaluated in the light of these principles and determinations, it is seen that there is an ongoing investigation and prosecution about him, or upon a crime report, the merits of the matter are investigated and the suspect or defendant is caught, or whether there is a "reasonable suspicion" assessment regarding the presence of criminal evidence, and whether there is the possibility of obtaining evidence by other means, and the concrete reasons for this are shown, taking into account the criteria in the decision of the European Court of Human Rights mentioned above, and a search warrant should be issued, while a search warrant should be issued. Without starting to investigate the truth of the matter by the competent Public Prosecutor's Office in accordance with the 160th article of the Criminal Code, upon the notification, it is understood that there is no evidence of reasonable suspicion and that there is no investigation about other people or events, and that the search made is unlawful because it does not comply with the criteria and principles in the ECHR decisions, and while a reasonable amount of non-pecuniary compensation should be awarded in favor of the plaintiff, it is against the law to decide to reject the case with written justifications.
UNLAWFUL SEARCH - SUPREME COURT DECISIONS
Criminal law aims to reach the truth, but it does not consider every means permissible for this purpose. In order for the defendant to be punished, the suspicion must be defeated to the degree of certainty as a result of the evaluation of the evidence obtained in accordance with the law. Search measure is one of the most important tools for finding evidence. If the rules we have tried to explain above are not followed, the evidence obtained as a result of the search will be considered unlawful. Here it is necessary to act by considering many possibilities. For example, if evidence is obtained as a result of a preventive search, it should be checked whether the limits of the preventive search have been exceeded. Again, while conducting a search, the issues such as whether there is a decision, the time of the search, and whether the persons required to be present during the search should be carefully examined. All these issues must be carefully examined by the judicial authorities when establishing a conviction.
The following decision of the General Criminal Assembly of the Supreme Court of Appeals contains detailed explanations on the subject:
"Our legal system also accepts the rules called general principles of law, which are applied in all civilized countries of the civilized world, as legal rules. Although there is uncertainty about what the general principles of law are, it is unquestionably accepted both in practice and in doctrine that the general principles of law are legally binding. Our Constitutional Court, in many of its decisions, has ruled that accepting the existence of general principles of law is one of the requirements of the state of law and that these principles cannot be destroyed even by the legislator (for example, see E. 1985/31. K.). 1986/1, KT. 17.3.1986, Journal of Constitutional Court Decisions, P. 22. p. 115). Within the framework of these opinions of the Constitutional Court, the general principles of law have become superior to the laws and even the amendable provisions of the Constitution. It is said.
In our criminal justice law, where the conscientious evidence system is valid, the confession based on free will must be freely appreciated and evaluated by the judge, like all other evidence.
Indeed, it is possible for a person to consider himself guilty or to accept someone else's guilt even though he is not guilty. In that case, the evidentiary value of the confession in the concrete case should be revealed by taking into consideration issues such as at what stage the confession took place and whether it was based on free will, whether the person making the confession knew the seriousness of the statement and the consequences that would arise from it, whether the confession was supported by other evidence or signs, whether it was in line with the ordinary course of life, whether the confession was retracted in a way that would weaken its freedom from doubt and certainty, and the problem of proof should be put forward in this way. should be analyzed.
As stated in the justification of the stay of execution decision of the 10th Chamber of the Council of State, which is accurate in our opinion, the form of search - with consent - cannot be regulated by law, since - the right to privacy of private life - and - the right to residence immunity - are inalienable rights according to the Constitution. Even if such a regulation were made, it would be against the Constitution.
Other evidence can be obtained based on the statement taken from the defendant illegally or the evidence obtained as a result of an illegal house search. In this case, there is evidence obtained as a result of a statement or search that constitutes illegal evidence, and this evidence cannot be used in the trial. It is not enough not to use the evidence obtained as a result of an illegal search in the trial. Since the evidence obtained through this evidence is against the law, it should not be used in the trial." YCGK 2005/150 K.
The subject in the following Supreme Court decisions is unlawful searches:
"The case is about the crime of drug trafficking. Considering the fact that there is an investigation that has started and is being carried out against the defendants for the crime of drug trafficking, that the defendants who were under surveillance due to suspicion of crime were physically tracked based on their phone calls and caught with the drugs in question, that there was no flagrante delicto in the events in question, and that the drugs seized in the trunk of the vehicle were seized at the District Police Department where they were taken from the place where they were stopped; CMK No. 5271 Pursuant to Annex 6 of PVSK No. 2/e, 161 and 2559, the incident was immediately reported to the public prosecutor and the investigation was continued in line with the order of the public prosecutor, and it was understood that the defendants' persons, belongings and vehicles could be searched in accordance with the written search warrant of the public prosecutor or the judicial search warrant obtained from the court in accordance with articles 116 and 119 of the CMK; The searches carried out on the vehicle at the place where the vehicle was stopped and taken, in accordance with the decision of the Criminal Court of Peace for a preventive search, were clearly unlawful because they were carried out without a duly issued written search warrant or a judicial search warrant, and since the incriminating drugs obtained as a result of this search were considered illegally obtained evidence, Article 38, paragraph 6 of the Constitution, subparagraph (a) of the second paragraph, Article 206 of the Criminal Procedure Code, and Article 217 of the Criminal Procedure Code. It should be noted that the decision cannot be taken as a basis in accordance with paragraph 2 and subparagraph (b) of paragraph 1 of Article 230. Since it is understood that the originals or approved copies of the search orders of the Criminal Court of Peace regarding the search of the defendant are not in the file, the originals or approved copies of the search orders in question are brought to the file and after determining whether they are judicial or preventive search orders, their qualifications are discussed and whether they can be taken as basis for the decision is determined. must." YCGK 2021/254 K.
"There is no proper search warrant given by the court upon the notice that the defendant was selling illegal cigarettes at his workplace, nor is there a written search warrant given by the public prosecutor on the grounds that delaying it would be harmful, or a written search warrant given by the law enforcement chief because the public prosecutor cannot be reached. The instruction of the public prosecutor to conduct a search around the workplace cannot be considered as a search warrant, and it must be accepted that the consent given by the defendant at this stage, who does not have the power to resist against the law enforcement officers using the public power of the state, is not legally valid. For this reason, it is not visible at first glance, the defendant's workplace "Since it must be accepted that the illegal cigarettes seized from the drawer of the table are prohibited evidence and that this evidence, which is contrary to Article 217 of the Criminal Procedure Code, cannot be taken as basis for the verdict, it was necessary to decide that the decision to resist was appropriate." YCGK 2021/213 K.
"The case is about the crime of possessing drugs for use. Since the substance given by the defendant with his own consent is not a drug, this action cannot be considered a crime, and the drug subject to the crime, which was seized on the defendant during a body search at the police station and which he did not give with his own consent, cannot be found by a rough body search in terms of its amount and location. In the search carried out in a way that exceeds the limits of the rough body search in Article 4/a of the Law on Police Duties and Powers, a "preventive search decision covering the scene and date of the crime" or 5721 In the face of understanding that there was no "judicial search warrant" and "written judicial search warrant" issued in accordance with Articles 116, 117 and 119 of the Code of Criminal Procedure no. However, in this case, as stated in Article 223/1 of the CMK No. 5721, "The verdict is given after it is declared that the hearing has ended. "Acquittal, no punishment, conviction, ordering security measures, rejection and dismissal of the case are judgments." And again in the 8th paragraph of the same article, "In cases where the reasons for dismissal specified in the Turkish Penal Code exist or it is understood that the condition of investigation or prosecution will not be met, it is decided to dismiss the case. However, if the investigation or prosecution has been made conditional and it is understood that the condition has not yet been fulfilled; A decision to stop is made to wait for it to happen.Pursuant to the regulation stating "This decision may be objected to", the court issues a stay decision and ensures that the decision regarding the postponement of the opening of a public case against the suspect and the implementation of a probation measure is duly notified to the relevant criminal judgeship of peace within 15 days from the date of notification against the decision, along with the warning that there is a right to object to the decision, and after it is duly finalized, valid notification procedures are carried out and the outcome of the execution of the probation decision is awaited, "In case of non-compliance with the probation measure, the decision that there is no need to impose a penalty, without considering the need to continue the trial and make a judgment based on the merits of the case, is against the law, and the request for annulment in the interest of the law has been deemed appropriate." Y10CD. 2020/8738 K.
"The decision of the Criminal Court of Peace regarding the preventive search was related to the search of people's clothes, vehicles, belongings and bags in public rest and entertainment places and other workplaces and their annexes, which are subject to permission to be opened in the police responsibility area, and in the main and intermediate arteries. Upon learning from the cargo officer that the cargo coming from the district was loaded onto the cargo vehicle of the relevant cargo company going to Istanbul, the incriminating marijuana was seized in a cardboard box during the checks carried out in the cargo-laden vehicle, and during this search process, the cargo-laden cargo was seized." In the face of the fact that it cannot be understood from the information and documents in the file whether the place where the vehicle is located is within the cargo collection center and its annexes, or whether the said cargo collection center is among the places specified in the 5th paragraph of Article 9 titled "preventive search" of PVSK No. 2559,
In order to determine whether the relevant Cargo Collection Center is among the workplaces specified within the scope of the preventive search decision, it is investigated whether the cargo vehicle in which the incriminating marijuana was seized during the search process remains within this workplace and its annexes, and whether a search can be carried out in this place with a preventive search decision. If it is understood that a search cannot be made with a preventive search decision, the Special Chamber concludes by investigating whether there is a search decision given by the judge or a written search order issued by the public prosecutor for this place, as stated in the reversal order. Accordingly, it should be accepted that it is inaccurate to make a judgment based on incomplete research without considering the need to determine the legal status of the defendant. "It has been decided to accept the objection of the Chief Public Prosecutor's Office of the Supreme Court of Appeals on different grounds." YCGK 2019/610 K.
In practice, a report is generally kept stating that the incriminating substances seized by the law enforcement officers were handed over with consent or were seized during a rough body search. The following decision has determined the authority limits of the law enforcement by interpreting the limits of the rough body search within the ordinary flow of life.
In the studies carried out on Polnet upon the tip of an anonymous citizen that drugs were being sold by vehicle, it was determined that he was constantly driving between Küçükçekmece and Avcılar, and when the expected vehicle was seen by the law enforcement officers, he was followed, the vehicle was stopped at the fuel station, the witness ..., who was under separate investigation for the crime of possessing drugs for use, got into the backseat where the defendant ... was sitting, and after a short time he got out of the vehicle, the vehicle under surveillance moved away, and it was clear that the witness İltercan In the incident where he voluntarily handed over 0.1 grams of marijuana, then the vehicle in which the defendants were traveling was stopped, and during a rough body search, THC and cocaine were seized from the defendants' underwear, as well as the phone with the GSM line in the gearbox, which the witness İltercan stated that he had contacted to buy the substance;
Although it is established that the defendants committed the crime charged against them by supplying drugs to witness İltercan within the scope of their will to participate;
Considering that the seizure of cocaine substances, which are subject to the application of Article 188/4-a of the Turkish Penal Code, in the defendants' underwear exceeds the limits of a crude body search; Failure to consider whether there is a "judicial search warrant" or "written search warrant" issued in accordance with Articles 116, 117 and 119 of the Criminal Procedure Code and the need to evaluate whether or not Article 188/4-a of the Turkish Penal Code will be applied to the defendants based on the result after bringing the original or a certified copy, if any.." Y10.CD 2022/11495 K.
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