Seizure decision
What is Confiscation?
Concerning the seizure measure, which is one of the protective measures in criminal proceedings, CMK's 123 et seq. The provisions are included in the articles. However, there is no legal definition of seizure. In TDK's Turkish dictionary, the word seizure is defined as the forcible taking of property or rights that are property by the state. The Judicial and Preventive Search Regulation includes seizure; It is defined as "the process of removing the possessor's power of disposition over an item, despite his/her lack of consent, in order to prevent crime or danger, or because it may be evidence of a crime or is subject to confiscation." Based on the relevant provisions, it is possible to define seizure as the seizure of goods subject to confiscation or evidence, by the courthouse. Because, Article 123 of the Criminal Procedure Code states, "Asset values that are deemed useful as a means of proof or that constitute the subject of confiscation of goods or earnings shall be preserved." There is a provision as follows.
The fact that confiscation is a protection measure indicates that it must have certain characteristics. Based on this, the confiscation measure, like other protection measures, is instrumental and temporary. In order for the measure to be implemented, there must be apparent justification, which we will examine under the heading of doubt. Perhaps the most important feature of all protective measures in criminal procedure is the observance of the principle of proportionality. The seizure decision can only be implemented by complying with the principle of proportionality.
Difference between Seizure and Confiscation
Seizure measure and confiscation institution are different measures in terms of their types. While confiscation is a type of protection measure, confiscation is a type of security measure. Our explanations regarding the institution of confiscation are included in our review titled What is Confiscation?. Here we will only touch on the differences superficially. The institution of confiscation, unlike the confiscation measure, terminates the ownership. The last difference between the two measures comes to the fore in terms of implementation. While the implementation of the confiscation institution does not depend on the existence of a crime, the existence of suspicion of crime is required in order to apply the confiscation measure.
Types of Seizure
The Code of Criminal Procedure has expanded the scope of the seizure measure compared to the CMUK. According to the CMK, the types of seizure measures are as follows:
1-Simple Confiscation (CMK article 123)
2-Seizure of Immovable Properties, Rights and Receivables (CMK article 128)
3-Seizure in Mail (CMK article 129)
4- Appointment of Trustee for Company Management (CMK article 133)
5-Seizure of Computers and Computer Programs and Logs (CMK article 134)
6-Seizure Regarding Illegals (CMK article 248)
Explanations about all types will be included below, except for articles 5 and 6.
PURPOSES OF SEIZURE
Simple seizure is regulated in Article 123 of the CMK. Accordingly; Asset values that are deemed useful as a means of proof or that constitute the subject of confiscation of goods or earnings are preserved.
As can be understood from the article of the law, the scope of simple confiscation consists of asset values that are deemed useful as a means of proof and asset values that are the subject of confiscation of goods or earnings. First of all, it should be noted that the purpose of the seizure measure is to ensure that the trial proceeds in a healthy manner and that the verdict given as a result of the trial is implemented. Based on this, the legal limits of interventions to the fundamental rights and freedoms regulated in the constitution have been determined. Therefore, the seizure decision will only be lawful if it serves these purposes.
It is certain that not having a means of proof at the disposal of the courthouse will affect the integrity of the trial. For example, in a wounding crime where more than one perpetrator is on trial, it can only be determined as a result of certain investigations who fired the gun. In such cases, keeping the gun at the disposal of the courthouse is necessary and beneficial as it will serve the purpose of a healthy conduct of the trial. Again, this example can also be applied to the seizure of an asset value that is deemed useful as a means of proof. It is possible to multiply these examples.
We stated above that seizure and confiscation measures are different from each other. Confiscation of assets that are the subject of property or earnings confiscation will help the operation of the confiscation institution. Because it may become impossible to confiscate the value of goods or assets subject to confiscation that are not confiscated in time. It should be noted that the seizure decision is made not only for the goods but also for the earnings. The concept of profit here should be considered within the scope of the definition in the Criminal Property Regulation. Then, the concept of profit for which confiscation measures can be applied is; It refers to the material benefits obtained by committing the crime or constituting the subject of the crime or provided for the commission of the crime, and the economic asset values that arise as a result of their evaluation or transformation or constitute their counterpart. As we mentioned above, the second purpose of confiscation is to ensure the implementation of the verdict given as a result of the trial.
CONDITIONS OF SEIZURE
It is obvious that the constitutionally guaranteed rights of individuals will be damaged by the seizure measure. For this reason, the implementation of the measure is subject to various conditions. In addition to the conditions generally listed in the Constitution, the conditions for the implementation of the confiscation measure are framed by the CMK. It is possible to list the confiscation conditions in the CMK as follows:
a-Existence of Doubt
The first condition for the seizure measure to be implemented is the existence of suspicion. As we mentioned above, this point also reveals the difference between confiscation and seizure measures. In fact, there must be suspicion of crime in terms of all protection measures regulated in the CMK. However, the density rates sought in terms of suspicion vary. For example, in order for arrest measures to be implemented, there must be concrete evidence showing strong suspicion of crime.
It will be seen that the suspicion of crime is not graded in terms of simple seizure measures. Therefore, the issue has caused controversy in the doctrine. According to one view, simple suspicion is sufficient for the implementation of the measure, while another view requires the existence of reasonable suspicion. We agree with the second opinion and believe that this measure, which violates many constitutionally guaranteed rights, can only be implemented in the presence of reasonable suspicion. 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."
Different types of suspicion have been identified for other types of seizure. Necessary explanations have been made under the relevant headings. Only explanations regarding the simple confiscation measure are made here.
b-Finding an Item to be Confiscated
In order to implement the measure, there must first be an item to be seized. However, as we mentioned above, it would be wrong to think only about goods. Earnings also remain within the scope of the confiscation measure.
Asset values deemed useful as a means of proof and property values that may be subject to confiscation of goods or earnings may be seized.
A confiscation order may be made for items such as weapons used in crimes, as well as values such as money received or given as bribes.
c-Person to whom the seizure will be applied
Seizure measure is a protection measure that can be applied to legal entities as well as real persons.
d-For what crimes can a seizure order be made?
There is no crime type determined for the simple seizure decision. This measure can be applied for every crime. In terms of other types of seizure, it has been limited to certain types of crimes. Explanations regarding crime types are made under each heading.
PROHIBITION OF SEIZURE
We have tried to explain above the asset values that may be subject to seizure. In addition, in some cases, the prohibition of confiscation will be on the agenda.
a-Letters and Documents That Cannot Be Seized
According to Article 126 of the CMK; letters and documents between the suspect or the accused and those who may refrain from testifying in accordance with Articles 45 and 46; It cannot be confiscated as long as it is in the possession of these people.
The principle of nemo tenetur is emphasized in the provision. As it is known, no one can be forced to make incriminating statements about himself or his relatives. In this respect, such a regulation has been made in terms of seizure.
Letters and documents that cannot be confiscated can only be seized as long as they are in the possession of the persons listed in the article. Apart from this, seized letters and documents may be confiscated. For example, letters between the suspect and his relative that are in the possession of a third party may be confiscated.
The concept of letters and documents should also be considered broadly. Electronic correspondence between individuals, such as e-mails and messages, is also considered prohibited.
b-Documents whose contents are state secrets
According to Article 125 of the CMK:
WHO MAKE THE DECISION TO SEIZURE?
Law enforcement officers may carry out the seizure upon a judge's decision or upon the written order of the Public Prosecutor in cases where delay is deemed harmful, or by the chief law enforcement officer in cases where the Public Prosecutor cannot be reached.
The clear identity of the law enforcement officer is recorded in the report regarding the seizure.
Seizure made without a judge's decision is submitted to the approval of the judge in charge within twenty-four hours. The judge announces his decision within forty-eight hours from the seizure; Otherwise, the seizure will be lifted automatically.
A person whose possessions or other assets have been seized may request the judge to make a decision on this matter at any time.
The seizure process 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, seizure may be carried out by judicial law enforcement officers with the participation of military authorities upon the written order of the public prosecutor. (CMK article 127)
The authority to make a simple seizure decision belongs to the judge. However, in cases where delay is harmful, a written order from the public prosecutor and, in cases where he cannot be reached, from the law enforcement officer, is required. As we will explain below, the decision to confiscate real estate, rights and receivables is made only by the judge.
In cases where the decision is not made by the judge, the judge's approval is required. An important point needs to be mentioned here. According to the practice of the Supreme Court, judge's approval is not required for items whose possession constitutes a crime in itself. An example decision is as follows:
"There is no need for the decision of a judge, public prosecutor or law enforcement chief to seize a substance, the possession and transportation of which constitutes a crime in itself, by law enforcement officers. Similarly, it is not necessary for the judge to approve the seizure of such a substance without a judge's decision. Pursuant to Articles 123 and 127 of the CMK, the obligation to take a decision to approve the seizure and seizure is excluded from the substances whose possession and transportation constitute a crime in itself, and are excluded from evidence or It is valid for the items and other values used in the crime or obtained from the commission of the crime. In the face of these situations, the Criminal Court of Peace should have decided that "there is no need for a judge's decision to seize or approve the seizure of the marijuana seized as a result of the search carried out on the defendant, the possession and transportation of which constitutes a crime in itself", but it is incorrect to decide "to reject the request for approval of the seizure" on the grounds that "the request was not made within the legal period". CD. 2016/669 K.
Another decision established the following provision:
"When cultural assets subject to the crime are found during the search carried out to seize drugs, they should be taken under protection and immediately informed to the public prosecutor, and a written order should be requested from the public prosecutor to carry out the seizure, and then the seizure carried out without a judge's decision should be submitted to the approval of the judge in charge within twenty-four hours; however, in the concrete case, none of these were done and the seizure of cultural assets was not submitted to the judge's approval, therefore, since the seizure was not in accordance with the law, the evidence obtained was the basis for the verdict. It is understood that it is not possible to punish the defendant for a crime, that the crime must be proven with evidence obtained in accordance with the law, with certainty that leaves no room for doubt, and therefore, the evidence obtained as a result of the illegal seizure cannot be taken as a basis for the verdict; "It should be taken into consideration that an independent expert report should be obtained for the determination of the crime, and if it remains within the scope of the said law, it should be decided to deliver the cultural property subject to the crime to the museum in accordance with Article 75 of Law No. 2863." Y12. CD. 2019/7862 K.
Notifying the Victim of the Seizure
CMK 127/5. According to the article; The seizure is notified to the victim who suffered damage from the crime without delay.
Performing the Seizure Procedure
1. Asset values that are deemed useful as a means of proof or that constitute the subject of confiscation of goods or earnings are preserved. Such items that are not handed over with the consent of the person who keeps them may be confiscated.
2. Upon the decision of the judge or in cases where delay is harmful, a report stating that the criminal property has been seized is prepared by the law enforcement officers who carried out the seizure, upon the written order of the public prosecutor or, in cases where the public prosecutor cannot be reached, the chief of law enforcement.
3.Seizure report; The type, quantity, markings, inscriptions and numbers on the confiscated goods, all characteristics that can distinguish them from similar ones such as type, brand, model and size, the appraised value, from whom, where and in what way it was taken for what crime, the investigation document number, the clear identities of the present victim, the victim of the crime, the suspect or the defendant and their attorneys or defense attorneys, experts and witnesses and other persons present and the law enforcement officers who carried out the seizure, the place, date and time of the transaction are written; The signatures of those concerned and the fingerprints of those who do not know how to sign are taken; The names, surnames and addresses of people who can read and write are written in their own handwriting, and the report prepared in this way is added to the investigation documents.
4. The seized goods are classified in accordance with their physical characteristics and placed in a clean place such as a nylon bag, cloth bag, envelope, bottle, jar or metal box, placed in packaging and placed in seamless or machine-stitched bags, solid cloth, chests, envelopes or boxes. After being packaged in this way, depending on the size of the package and the nature of the evidence, it is tied with wire, twine, rope or the like as deemed appropriate and sealed with seal tape, lead or wax, which deteriorates to the extent that it cannot be reused when opened and is obviously opened; In addition, the label attached to the criminal property is written on the label attached to the criminal property, and the type of the property, its quantity, who it was taken from, and the number of the investigation document are written, and it is deposited with the Chief Public Prosecutor's Office.
5. The seizure carried out without a judge's decision is submitted to the approval of the judge in charge within twenty-four hours. The judge announces his decision within forty-eight hours from the seizure; Otherwise, the seizure is automatically lifted. Necessary measures to preserve the seized goods within this period are taken by the Chief Public Prosecutor's Office.
6. The seizure process is notified to the victim who suffered damage from the crime by the Chief Public Prosecutor's Office without delay.
7. Procedures regarding the receipt of seized goods are carried out by the escrow officer in accordance with the instructions of the public prosecutor. If it is not found, the report will be taken by the personnel appointed by the Chief Public Prosecutor's Office and delivered to the escrow office as soon as possible.
8.(If there is any doubt about the accuracy of the information in the seizure report, the receiving officer or the escrow officer, together with the person who brought the goods, examines the goods by removing the seal or opening the packaging in a way that does not damage the criminal property and its evidence, identifies this issue with the report, and seals it again after an agreement is reached.
9.A person whose possessions or other assets have been seized may at any time request the judge to make a decision to lift the seizure.
10. When the seizure is carried out within the scope of the investigation carried out by the public prosecutors themselves or the criminal property deposited during the prosecution phase, the above procedures are carried out in the same way. (Criminal Property Regulation article 5)
STORAGE OR DISPOSAL OF SEIZED ITEMS
RETURN OF SEIZED ITEMS
According to Article 131 of the CMK:
"If it is understood that the seized belongings belonging to the suspect, the defendant or third parties are not required to be kept for investigation and prosecution or will not be subject to confiscation, the public prosecutor, judge or court decides to return them, ex officio or upon request. Decisions to reject the request can be objected.
The goods or other assets seized in accordance with the provisions of Article 128 shall be returned to their owner if they belong to the victim damaged by the crime and they are no longer needed as evidence."
As can be understood from the above article of law, it is possible to return the seized goods before the court decision. Refunds can also be made during the investigation phase. For this, it must be understood that the goods will not be confiscated or that there is no need to preserve them. This is a situation that usually comes to the fore regarding items that have nothing to do with crime. However, evidence that will help clarify the file will not be returned. An example Supreme Court decision on the subject is as follows:
"It is wrong not to take into account that some of the items subject to the crime were seized and that the 2 screwdrivers seized in the stolen vehicle, which were used in the crime but were determined to belong to another complainant outside the file, were used in the crime due to the way the events occurred, but there was no evidence that the other seized items and materials were used in the crime, but it was decided to keep them as evidence in the file, considering that they could be evaluated as evidence later in order to shed light on the events." Y2CD. 2017/10482 K.
Refund request can be made ex officio or upon request. The judge, court or prosecutor may decide on extradition. If the request is rejected, an objection may be filed. However, there is no legal way to appeal against the prosecutor's office's decisions. For this reason, those who want extradition must make a request to the criminal judgeship of peace against the decision of the prosecutor's office and then apply to the objection institution.
Return in Article 128 of the CMK refers to the return of the goods to their owner. Here, the owner of the item may be the victim who was harmed by the crime. In such a case, the item is returned to him. In cases where it cannot be determined to whom the confiscated thing belongs, a lawsuit can be filed in the civil courts and an interim injunction may be obtained. An example Supreme Court decision is as follows:
"In the incident where the defendants committed the crimes of forgery of official documents and qualified fraud and obtained unfair advantage of 525,000 Liras from the participant, it was claimed by the participant and his attorney that the 53,700 Euros seized from the defendant ... during the investigation phase, some household goods and the vehicle with plate number... registered in the name of T.G. and the vehicle with plate number... registered in the name of... seized from the defendant... were obtained from the unfair advantage obtained as a result of the crime, Considering the fact that the defendant ... claimed 53,700 Euros and the witness ... claimed the vehicle with license plate number .... and that the vehicle with license plate number ... was registered in the name of third parties other than the defendants, the confiscated 53,700 Euros were returned to the participant because it was not proven that the household goods and vehicles could not be confiscated due to the fact that the victim of the crime was known, and that it was an economic gain resulting from the transformation of the material benefit obtained by committing the crime. Since the participant and his attorney claimed that they were purchased with the money obtained from the participant through fraud, 53,700 Euros and household goods cannot be returned to the defendant, and the vehicles cannot be returned to the third parties, who are the registered owners. As the investigation into whether the seized property values are in the nature of economic gain as a result of the transformation of the material benefit obtained by committing the crime will prolong the trial, the local court decided to file a precautionary lawsuit for damages in the civil courts to compensate the participant's damage arising from the crime. "It should be accepted that there is no mistake in deciding that the parties regarding the 53,700 Euros, household goods and vehicles for which they can request an injunction, have the right to file a lawsuit in civil courts regarding property." YCGK 2017/11 K.
OBJECTION TO SEIZURE DECISION
According to the Code of Criminal Procedure, appeals can be made against judges' decisions. An objection can be made against the seizure decision within 7 days.
The way for the possessor to request the return of the confiscated goods without a judge's decision is in Article 127/4 of the CMK. It is shown in the article. Accordingly; The person whose possessions or other assets have been seized may request the judge to make a decision on this matter at any time.
COMPENSATION DUE TO SEIZURE
We stated that confiscation is a protective measure. The person who suffers damage due to the protection measures listed in the CMK has the right to demand compensation. According to paragraph j of Article 141 of the CMK; Those whose belongings or other assets were seized when the conditions were not met, or the necessary measures were not taken to protect them, or whose belongings or other assets were used for purposes other than their intended purpose, or those who were not returned on time, may claim compensation. The case is filed in the high criminal court. Sample Supreme Court decisions are shared below:
"The case concerns the claim for financial compensation as a result of the plaintiff's truck being confiscated for a long time due to a crime. The truck subject to the crime, which was seized within the scope of the crime of trafficking and supplying drugs or stimulants, belongs to the plaintiff, who is a bona fide third party. This truck belonging to the plaintiff was confiscated for four years. However, it is not understood in the court decision why this confiscated vehicle was not confiscated for such a long time and why just adding an annotation to the traffic record was deemed insufficient. No criminal charges were filed against the plaintiff regarding the action that led to the seizure of the vehicle. In the indictment prepared by the Chief Public Prosecutor's Office, a request for punishment was made against the plaintiff's brother, who was driving the vehicle, and the court included the plaintiff in the trial as a participant and as a result of the trial, the court accepted that the plaintiff truck owner was a bona fide third party and later decided to return the vehicle to him. Despite this, the plaintiff's vehicle was detained for a long period of four years and the plaintiff used it for commercial transportation. As stated in the decisions of the Constitutional Court, the seizure of the items used in the crime or the subject of the crime will be for the purposes of preventing the use of these items in the crime again, providing deterrence and preventing a possible confiscation from being ineffective. However, the implementation of the actual confiscation measure leads to the serious consequence of depriving people of their property, even if only temporarily. "Although it is understood that it cannot be confiscated and that there is a way to cause less damage by adding an annotation to the plaintiff's vehicle registry record, it is understood that the intervention of actually seizing the truck until the end of the trial is incompatible with the principle of proportionality as well as with the law. In the light of all these explanations, an appropriate financial compensation should be decided to cover the plaintiff's damage in line with his claim for compensation." Y12. CD. 2018/4118 K.
"It is regulated in paragraph (j) of the 1st paragraph of Article 141 of the CMK No. 5721 that people whose assets have been confiscated even though the conditions are not met can claim compensation, and the plaintiff's attorney requested compensation on the grounds that the vehicle belonging to the plaintiff was seized unfairly. According to the scope of the file examined; upon detection of foreign nationals in the vehicle belonging to the plaintiff, which was stopped by the law enforcement for control and driven by H. U., the vehicle was used in the crime. Article 128/2-d of the CMK No. 5271, which provides for seizure, and the last paragraph of the same article (a-b-c-d-e-f-g-h), which are kept under suspicion, state that the seizure of immovable property, rights, receivables and other assets can be carried out even if they are in the possession of a person other than the suspect or the defendant, and the criminal case of the Erciş Criminal Court of First Instance is the basis for the claim for compensation. In the case file, it was understood that the driver of the vehicle, H. U., who was tried for the crime of immigrant smuggling, was convicted and the vehicle used in the crime was decided to be returned on the grounds that there was no evidence that it was used with the permission of the owner or his legal representative. "It should be rejected on the grounds that the conditions for requesting compensation specified in the article are not met." Y12. CD. 2015/1658 K.
Seizure of immovable properties and receivables
Seizure of immovable properties, rights and receivables, which represents an expanded version of the confiscation measure, is regulated in Article 128 of the CMK. Accordingly:
In cases where there is strong suspicion "based on concrete evidence" that the crime subject to investigation or prosecution has been committed and obtained from these crimes, belonging to the suspect or defendant;
a) Immovable properties,
b) Land, sea or air transportation vehicles,
c) Any account in a bank or other financial institution,
d) All kinds of rights and receivables before real or legal persons,
e) Negotiable instruments,
f) Partnership shares in the company of which he is a partner,
g) Safe deposit boxes,
h) Other assets may be seized.
Extended seizure decision, unlike simple seizure, can be given in case of strong suspicion of crime based on concrete evidence. Extended seizure, like simple seizure, aims to ensure the sound conduct of criminal proceedings and the execution of the sentence. Apart from these aims, it should also be said that there is also the aim of fighting crime.
Application
- The decision to confiscate the immovable property is enforced by annotating it in the land registry.
- The seizure decision regarding land, sea and air transportation vehicles is enforced by making an annotation in the registry where these vehicles are registered.
- The decision to seize any account in a bank or other financial institution is executed by immediately notifying the relevant bank or financial institution via technical communication means. The decision in question is also notified to the relevant bank or financial institution. After the seizure decision is made, any actions taken on the accounts aimed at neutralizing this decision are invalid.
- The decision to seize the partnership shares in the company is executed by immediately notifying the relevant company management and the trade registry office where the company is registered via technical communication means. The decision in question is also notified to the relevant company and the trade registry office.
- The decision to confiscate rights and receivables is executed by immediately notifying the relevant real or legal person via technical communication means. The decision in question is also notified to the relevant natural or legal person.
- In case of violation of the requirements of the seizure decision taken in accordance with the provision of this article, the provisions of Article 289 of the Turkish Penal Code titled "Abuse of custody duty" are applied.
- Only a judge can decide on the seizure in accordance with the provisions of this article and the appointment of a trustee in accordance with the tenth paragraph. When it is necessary to manage the real estate, rights and receivables seized in accordance with this article, a trustee may be appointed to manage these asset values. In this case, the provisions of Article 133 are applied by analogy. (CMK article 128)
To whom can the measure be applied?
Extended seizure measure can be applied to real and legal persons. It is possible to apply the measure to items in the possession of third parties.
Who Makes the Precautionary Decision?
The precautionary decision can only be given by the judge. Here, seizures cannot be made by prosecutor or law enforcement orders.
WHAT CRIMES CAN A SEIZURE ORDER BE MADE?
While a simple confiscation decision can be given for every type of crime, confiscation of real estate, rights and receivables is only possible for some types of crimes. The types of crimes listed in the law are:
1.Genocide and crimes against humanity (articles 76, 77, 78),
2. Immigrant smuggling and human trafficking (articles 79, 80) and organ or tissue trafficking (article 91),
3.Theft (articles 141, 142),
4.Plunder (articles 148, 149),
5. Abuse of trust (article 155),
6. Fraud (article 157, 158),
7.Fraudulent bankruptcy (article 161),
8. Manufacture and trade of narcotic or stimulant substance (article 188),
9.Forgery of currency (article 197),
10. Establishing an organization for the purpose of committing a crime (article 220, paragraph three),
11. Tender rigging (article 235),
12. Mischief in the performance of the act (article 236),
13.Usury (article 241),
14. Embezzlement (article 247),
15.Extortion (article 250)
16. Bribery (article 252),
17.Crimes Against the Security of the State (articles 302, 303, 304, 305, 306, 307, 308),
18. Crimes Against the Constitutional Order and the Functioning of This Order (articles 309, 311, 312, 313, 314, 315, 316),
19. Crimes Against State Secrets and Espionage (articles 328, 329, 330, 331, 333, 334, 335, 336, 337).
20. Arms smuggling (article 12) crimes defined in the Law on Firearms, Knives and Other Tools,
21.The crime of embezzlement defined in paragraphs (3) and (4) of Article 22 of the Banking Law,
22.Crimes defined in the Anti-Smuggling Law and requiring imprisonment,
23.Crimes defined in Articles 68 and 74 of the Law on the Protection of Cultural and Natural Assets.
MAIL SEIZURE
Provisions regarding postal seizure, which is another type of seizure, are regulated in Article 129 of the CMK. According to the relevant article; Posts that are suspected to constitute evidence of a crime and are deemed to be under the control of the courthouse in the investigation and prosecution in order to reveal the truth, can be seized by the decision of the judge or, in cases where delay is harmful, the public prosecutor.
The purpose of seizing mail is to obtain evidence. Shipments in any public or private organization providing postal services may be seized.
Law enforcement officers who carry out the seizure upon being notified of the judge's decision or the order of the public prosecutor cannot open the envelopes or packages containing the shipments specified in the first paragraph. Seized shipments are sealed in the presence of the relevant postal officials and immediately delivered to the judge or public prosecutor who gave the seizure decision or order.
The measure of seizure of mail is not limited to any type of crime. It can be applied to all types of crimes. However, a specific situation is regulated in the 3rd paragraph of Article 129. Accordingly:
"If the seizure decision or order is given for the crimes listed below, the envelopes or packages containing the shipments may be opened by law enforcement officers upon the instruction of the public prosecutor. a) In the Turkish Penal Code No. 5237;
1. Unauthorized possession or transfer of dangerous substances (article 174),
2. Manufacturing and trafficking of narcotic or stimulant substances (Article 188), crimes.
b) Crimes defined in the 12th and 13th articles of the Law on Firearms, Knives and Other Tools dated 10/7/1953 and numbered 6136.
c) Crimes defined in Articles 67 and 68 of the Law on the Protection of Cultural and Natural Assets No. 2863 dated 21/7/1983."
Unless there is a possibility of harming the purpose of the investigation and prosecution, the measures taken are notified to the relevant parties. The messages that are determined not to be opened or to be kept under the control of the courthouse due to their content are immediately delivered to the relevant parties.
APPOINTMENT OF TRUSTEE FOR COMPANY MANAGEMENT
According to Article 133 of the CMK; If there are strong suspicions that the crime is being committed within the framework of a company's activities and it is necessary to reveal the material truth; During the investigation and prosecution process, the judge or court may appoint a trustee regarding the conduct of company affairs.
As can be understood from the provision, in order for the measure to be implemented, there must be strong grounds for suspicion and it must be necessary to reveal the material truth. Only the court or judge can decide on the measure. The crime must be committed within the framework of company activity. The fact that a partner or some of the partners commit a crime does not require the appointment of a trustee. Essentially, what is meant is when a company is established for the purpose of committing a crime, that is, when the company is used as a criminal tool.
Application Conditions
For what crimes can a trustee be appointed to the company?
a) Included in the Turkish Penal Code,
1. Immigrant smuggling and human trafficking (articles 79, 80),
2. Manufacturing and trading of narcotic or stimulant substances (Article 188),
3. Forgery of currency (article 197),
4. Prostitution (article 227),
5. Providing a place and opportunity for gambling (article 228),
6. Embezzlement (article 247),
7. Laundering of assets resulting from crime (article 282),
8. Armed organization (article 314) or providing weapons to these organizations (article 315),
9. Crimes Against State Secrets and Espionage (articles 328, 329, 330, 331, 333, 334, 335, 336, 337), Crimes,
b) Arms smuggling (article 12) crimes defined in the Law on Firearms, Knives and Other Tools,
c) The crime of embezzlement defined in paragraphs (3) and (4) of Article 22 of the Banking Law,
d) Crimes defined in the Anti-Smuggling Law and requiring imprisonment,
e) Crimes defined in Articles 68 and 74 of the Law on the Protection of Cultural and Natural Assets.
Compensation Due to Precautionary Measures
Compensation lawsuits for trustees' actions and actions related to their duties are filed against the State in accordance with Articles 142 to 144. The state has recourse within one year for the compensation paid to trustees who abuse their duties by acting contrary to the requirements of their duties. (CMK 133/5)
WHAT IS DONE ABOUT THOSE WHO DON'T GIVE THE REQUESTED ITEM?
The goods that are decided to be seized must be delivered. If the delivery occurs with consent, it is considered preservation. If the surrender is not achieved with consent, this time force is used. The principle of proportionality must be strictly observed here. According to Article 124 of the CMK:
A person who keeps the goods or other assets mentioned in Article 123 is obliged to show and deliver this thing upon request.
In case of evasion, the provisions regarding disciplinary imprisonment in Article 60 are applied to the possessor of this thing. However, this provision does not apply to the suspect or defendant or those who may hesitate to testify.
SEARCH, SEIZURE IN LAWYERS' OFFICES AND SEIZURE IN THE MAIL
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 the 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 second 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. (CMK article 130)
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