What is a confidential investigator?

We will discuss all these conditions under separate headings below. In addition, it should not be forgotten that all the general conditions required for classical protection measures must be met.

1- FOR WHAT CRIMES CAN AN UNDERTAKING INVESTIGATOR BE ASSIGNED?

The law determines the crimes for which a secret investigator can be assigned by enumerating them one by one. Because this measure can only be applied in exceptional cases. This protection measure cannot be applied for crimes other than these crimes. It should also be noted that; The secret investigator measure cannot be used as a preventive measure. Therefore, the existence of suspicion of crime is the first condition sought for the implementation of the measure.

Crimes for which the measure of appointing an undercover investigator may be applied are as follows:

a) Included in the Turkish Penal Code;

1. "Regardless of whether it is processed within the framework of organizational activities, manufacture and trade of drugs or stimulants (article 188),

2. Forming an organization for the purpose of committing a crime (except for paragraphs two, seven and eight, article 220),

3. Armed organization (article 314) or supplying arms to these organizations (article 315).

b) Arms smuggling (article 12) crimes defined in the Law on Firearms, Knives and Other Tools.

c) Crimes defined in Articles 68 and 74 of the Law on the Protection of Cultural and Natural Assets. Secret investigative measures can only be applied to crimes committed within the framework of organizational activities. However, according to Article 27 of Law No. 6763 dated 24.11.2016, there is no organization requirement for the implementation of the measure in terms of crimes of manufacturing and trading drugs or stimulants.

2- WHO MAKE THE DECISION TO APPOINT CONFIDENTIAL INVESTIGATOR?

CMK 139/1. According to the last sentence of the article, the measure can only be decided by the judge. As can be understood from this regulation, courts do not have the authority to decide on measures. Therefore, it should be said that the authority belongs only to the criminal judge of peace. If the conditions exist, the public prosecutor requests the judge to make a decision by attaching the information and documents regarding the appointment of an undercover investigator, which is reported to him directly or by the judicial law enforcement officers under his command.

Under this heading, we would like to touch upon a dilemma experienced in practice. In some cases, police officers are seen purchasing criminal property from individuals. Even if such a practice exists and is lawful, these purchases made without a decision cannot be considered within the scope of secret investigative activities. In these cases, the Supreme Court of Appeals uses CMK 160 et seq. accepts that it has acted in accordance with the articles. However, judicial law enforcement officers can only carry out such an action with the order of the public prosecutor. Otherwise, the collected evidence will be considered unlawful. The decisions of the General Criminal Assembly of the Supreme Court of Appeals on the subject are as follows:

"In accordance with the established jurisprudence of the Supreme Court Criminal General Assembly, it is possible for law enforcement officers to collect information for crimes other than Article 139 of the CMK, in accordance with Article 160 and subsequent articles of the CMK, in line with the order of the Public Prosecutor and within the scope of their general powers and duties, in order to determine the crime and its perpetrator and to collect evidence related to the crime, without instigating or inciting the crime; In accordance with Article 160 and subsequent articles of the CMK, law enforcement officers may be given a written or written statement by the public prosecutor on duty. "It should be accepted that it is not lawful for them to seize a pack of smuggled cigarettes, which is the subject of the crime and the dispute, by directly encouraging the defendant to commit a crime by going directly to the workplace and saying that they want to buy "Prestige" brand cigarettes, without a verbal instruction and in the absence of any determination indicating the defendant's will to sell smuggled cigarettes, and that the evidence obtained is prohibited evidence and cannot be taken as a basis for a decision in accordance with Article 217 of the CMK." YCGK 2021/262 K.

"However, it is possible for law enforcement officers, in line with the order of the public prosecutor and within the scope of their general powers and duties, to purchase drugs from the suspect, without instigating or encouraging the crime, by acting as buyers, in order to determine the crime and its perpetrator and to collect evidence related to the crime, in accordance with Article 160 and subsequent articles of the CMK.

In these cases, it is sufficient to assign the judicial law enforcement officer not in accordance with Article 139 of the CMK No. 5271, but in accordance with Articles 160 and its continuations (Yener Ünver-H. Hakeri, Criminal Procedure Law Textbook, 9th Edition, Adalet Yayınevi, Ankara, 2014, p. 474). The European Court of Human Rights found that the undercover officer contacts the suspects and ensures that they are caught red-handed in order to reveal the crime that has been committed or is about to be committed, in accordance with the European Convention on Human Rights (ECtHR's decision Ludi/Switzerland, dated 15.06.1992 and numbered 12433/1986). However, the officer's incitement and instigation of people who do not intend to commit a crime has been accepted as a violation of the ECHR (ECHR's decision, Teixeira de Castro/Portugal, dated 09.06.1998 and numbered 25829/94).

On the other hand, the purpose of criminal procedure is to achieve justice by reaching the material truth with the evidence collected in accordance with the law and procedure in every concrete case, to punish the perpetrator who is proven to have committed a crime, to prevent the deterioration of public order and to re-establish the deteriorated public order. Both CMK No. 1412 and CMK No. 5271 aim to reach the material truth through a fair, effective and lawful trial. For this reason, all available evidence must be considered and evaluated. In other words, in order for justice to be fully realized, it is necessary to collect and discuss all legal evidence that can serve the purpose of reaching the material truth.

When the preliminary problem is evaluated in the light of these explanations;

In the incident where the defendant allegedly sold drugs to public officials assigned as undercover investigators for 20 TL on 17.03.2015, the date of the crime;

The drug trafficking crime for which the defendant is charged must not have been committed within the framework of an organizational activity, and the phrase "Drugs" in subparagraph (1) of the seventh paragraph of Article 139 of the CMK must be replaced by Article 27 of the Law No. 6763, which came into force after being published in the Official Gazette dated 02.12.2016, and the phrase "Drugs" in subparagraph (1) of the seventh paragraph of the CMK Article 139, as "whether it was committed within the framework of an organizational activity" Since the regulation changing it to "drugs, regardless of whether they were committed" has not yet come into force as of the date of the crime, which is 17.03.2015, the court's decision to appoint an "undercover investigator" in accordance with Article 139 of the Criminal Procedure Code No. 5271 is not in accordance with the law, and if the public officials who buy drugs from the defendant by playing the role of buyers are law enforcement officers, they should be accepted as "judicial law enforcement officers conducting secret investigations", not undercover investigators. Only the evidence obtained by these officers without instigating or encouraging a crime will be lawful and can be used as a basis for judgment.

Although there was no decision to monitor the defendant with a technical tool in accordance with Article 140 of the CMK, the monitoring and recording process was carried out with a technical tool based on the decision to appoint an undercover investigator, and the Local Court stated that the proof of the crime regarding the action dated 17.03.2015 was based on the report prepared as a result of the activity carried out by the undercover investigators and the records obtained as a result of monitoring with a technical tool, in accordance with Article 217 of the CMK. In the face of understanding that the crime must be proven with all kinds of evidence obtained in accordance with the law, that it is not possible to prove it based on evidence obtained as a result of monitoring with illegal technical means, and that the defendant does not accept the accusation of drug trafficking; "Although it is necessary to investigate whether the public officials assigned as undercover investigators are judicial law enforcement officers, to determine whether the person from whom they purchased the marijuana subject to the crime is the defendant, to determine whether the person from whom they purchased the marijuana subject to the crime is the defendant, to give the defendant and his defense the opportunity to ask questions to the witnesses, and to determine the legal status of the defendant based on the result, it should be accepted that it is inaccurate to make a judgment based on incomplete research without taking these issues into consideration." YCGK 2021/312

"The case is about the crime of encouraging someone to engage in prostitution, or getting someone to commit prostitution, or mediating or providing a place. If evidence that the crime has been committed cannot be obtained without the police officers provoking and fighting the perpetrator to commit the crime, it must be accepted that the police officer has assumed the role of provocative agent and the right to a fair trial has been violated.

Courts should not make an evaluation based solely on the minutes of the undercover officer; the minutes should be confirmed with elements that will lead to other conclusions. Even if the defendant is a person with the potential to commit a crime, it must be supported by other evidence that the perpetrator was preparing to commit a crime before the intervention of the officer in the concrete case. In other words, it must be proven with other evidence that the perpetrator will commit the crime without intervention.

For a secret investigation, there must be an assignment made by the Public Prosecutor. The Public Prosecutor must give the duty order to the judicial law enforcement officer conducting an undercover investigation, in writing or verbally in urgent cases. It is against the law for a judicial law enforcement officer to take judicial action by hiding his identity without informing the Public Prosecutor, without a written or verbal order from the Public Prosecutor, and since the evidence obtained in this way is also against the law, the article 216/3 of the CMK provides that what is obtained in this way is unlawful. It cannot be taken as basis for the decision pursuant to the article.

Performing judicial proceedings by concealing one's identity is not a normal procedure but a secondary measure. The necessity and proportionality of this measure must be checked by the Public Prosecutor.

When the law enforcement officer's report is accepted as evidence, and if the report is relied upon along with other evidence, the minutes editors must be heard and the defendant must be given the opportunity to defend against the minutes and the statements of the editors.

In the incident, although a public lawsuit was filed with the request that the defendant be punished for the crime of prostitution and it was decided that he be punished for this action, it is wrong to convict the defendant without any evidence obtained by assigning judicial law enforcement for a proper secret investigation, without the intervention of law enforcement officers, and without taking into account that there is no definitive and sufficient evidence beyond doubt to punish the defendant, contrary to his defense that he did not commit the crime at all stages. Y4CD. 2022/10061 K.

CONTENT OF THE REQUEST AND DECISION REGARDING THE USE OF CONFIDENTIAL INVESTIGATOR

The following issues are included in requests and decisions regarding the use of undercover investigators:

a)Investigation number,

b)Belonging number,

c) Which crime the decision is requested to investigate, what are the strong suspicion reasons for this crime,

d) Information about the organization or individuals that the undercover investigator will investigate,

e) Statements, information or documents about the lack of possibility to obtain evidence in any other way.

The decision is delivered to the Chief Public Prosecutor's Office and the necessary precautions are taken by the relevant judge to keep the copy remaining in the court office confidential. The decisions in question will not be stuck in a different business card during the duration of the measure. When it is learned that the measure has ended, it is added to the relevant carton.

The decision and other documents regarding the appointment of the investigator are kept in the relevant chief public prosecutor's office. (Regulation article 24)

3- STRONG REASON FOR DOUBT ABOUT THE APPOINTMENT OF A CONFIDENTIAL INVESTIGATOR

As it is known, investigation procedures begin upon suspicion. This type of doubt is called simple doubt. In addition, a certain degree of suspicion is required in terms of the implementation of protective measures. By grading the suspicion, it is aimed to restrict interventions to individual rights and freedoms. Because all protection measures are closely related to fundamental rights and freedoms.

In order for the secret investigator measure to be applied, there must be strong grounds for suspicion based on concrete evidence in accordance with Article 139 of the Criminal Code and no evidence can be obtained in any other way. The law mentions strong reasons for suspicion here. The concepts of strong suspicion should not be confused with strong suspicion. In fact, there are many debates in the doctrine about what the degree of strong reason for doubt is. According to the opinion we agree with; The phrase "strong grounds for suspicion" is more intense than simple initial suspicion; but CMK m. It refers to an intensity of suspicion that does not reach the level of "sufficient suspicion", which is also included in Article 170/2.

4- NOT OBTAINING ANY OTHER TYPE OF EVIDENCE

As we stated above, there should be no other possibility of obtaining evidence in order for the measure to be implemented. This legal regulation is compatible with the purpose of the measure. Because appointing an undercover investigator, which is an exceptional measure, is a measure that can only be used as a last resort. If there is another possibility of obtaining evidence, this measure will no longer be taken. For example, if evidence can be obtained through search or seizure measures, there will no longer be a need to appoint an undercover investigator.

5- THE CONFIDENTIAL INVESTIGATOR BEING A PUBLIC OFFICER

According to Article 139 of the Criminal Procedure Code, an undercover investigator can only be a public officer. According to Article 6 of the Turkish Penal Code, the term public officer means; It is understood as a person who participates in the execution of public activities on a permanent, temporary or temporary basis, by appointment or election or in any other way. As can be understood from the definition, it is sufficient for the undercover investigator to be a public officer. Additionally, there is no requirement to be a judicial law enforcement officer. We would like to draw attention to this point here. If the precautionary decision is given duly, the duty of the undercover investigator is not important. However, in cases where there is no injunction, the evidence collected is deemed unlawful since no one other than the judicial police has the authority to carry out investigative activities. Or, if a secret investigation is carried out in terms of crimes outside the scope, judicial law enforcement duties can only take the role of receiver upon the order of the public prosecutor. As we stated above, it is considered lawful for a judicial law enforcement officer to collect evidence by acting upon the order of the public prosecutor within the scope of his duty. Otherwise, the evidence collected cannot be taken as basis for the decision. For example, in terms of a crime that is not committed within the scope of organizational activities, judicial law enforcement may comply with CMK 160 et seq. If evidence has been collected in accordance with the law, this evidence is considered lawful. An example Supreme Court decision is shared below:

"The case is about the crime of drug trafficking. It is wrong not to include the original or the certified copy of the decision taken regarding monitoring with technical tools in the file in a way that allows auditing. Since the undercover investigators who carry out the act of buying and procuring drugs from the defendants in order to establish the proof of the crime are law enforcement officers, they can engage in activities such as "identifying the crime and the perpetrator, collecting evidence related to the crime", firstly asking whether the undercover investigators are judicial law enforcement officers, and determining whether the undercover investigators are not judicial law enforcement officers. "It is not right to make a judgment without discussing whether the effective repentance provision stipulated in Article 192/3 of the Turkish Penal Code will be applied, considering that the information obtained through this method cannot be considered as evidence, as they cannot act in "identifying the crime and the perpetrator and collecting evidence related to the crime", and since it is understood that the defendant's action was to direct undercover investigators to the other defendant who was selling drugs, the defendant should be punished in accordance with Article 39 of the Turkish Penal Code. Y20CD. 2019/6294 K.

CHANGING THE IDENTITY OF THE CONFIDENTIAL INVESTIGATOR

CMK 139/2. According to the article; The investigator's identity can be changed. Legal transactions can be carried out with this ID. Necessary documents can be prepared, changed and used if necessary to establish and maintain identity.

THE TESTIMONY OF THE CONFIDENTIAL INVESTIGATOR

The legislator has made the following provision regarding the testimony of the undercover investigator:

"If it is mandatory for the investigator to be heard as a witness during the prosecution phase, the investigator is heard in a private environment without those who have the right to be present at the hearing or by changing his voice or image. In this case, the provision of Article 9 of the Witness Protection Law No. 5726 dated 27/12/2007 is applied by analogy."

This issue is quite controversial. ECHR decisions state that secret witness statements alone are not sufficient to establish a conviction. We touched upon this issue in our review titled Witnessing and Secret Witness in Criminal Procedure.

In our opinion, in cases where the evidence obtained by the undercover investigator will be used as the only evidence during the trial, the undercover investigator should be heard as a witness in a manner suitable for asking questions. But on the other hand, the investigator's vital security must be ensured. The differences between our law and the ECHR jurisprudence have caused the debates on the subject to grow. In our law, both the right to a fair trial and the safety of the investigator have been tried to be protected. We believe that in such cases, the undercover investigator should be heard without revealing his identity, but with the opportunity to ask questions.

In terms of the testimony of the duly appointed undercover investigator, Article 139/3 of the Law. Article will be applied. In addition, in cases where judicial law enforcement officers conduct secret investigations by order of the public prosecutor, general rules apply in terms of testimony. The two situations should not be confused. The following Supreme Court decision exemplifies the issue:

"Since the undercover investigators who carry out the act of taking and procuring drugs from the defendant in order to establish the evidence of the crime are law enforcement officers, they may be involved in "identifying the crime and the perpetrator and collecting evidence related to the crime", first of all, it is necessary to ask whether the undercover investigators are judicial law enforcement officers, and if they are judicial law enforcement officers, they must be heard as witnesses, taking into account the provision of Article 139/3 of the CMK, when necessary. The original or certified copy of the decision taken regarding monitoring with technical means must be kept in the file in a way that allows inspection. In the report of the Criminal Police Laboratory Directorate, it was stated that the green plant parts weighing 1 gram that the defendant sold to the undercover investigator together with the other defendant were plant parts containing Tetrahydrocannabinol (THC), one of the active substances of marijuana, and that the quantitative study could not be carried out because the amount of the substance was low, and that the witness sample was not taken and was not returned.

CAN UNDERCOVERED INVESTIGATOR COMMIT A CRIME?

The investigator cannot commit a crime while performing his duty and cannot be held responsible for the crimes committed by the organization to which he is assigned. (CMKm.139/5)

As clearly stated in the above article of law, an undercover investigator cannot commit a crime. The investigator cannot encourage committing a crime by acting as a provocative agent. Likewise, law enforcement officers conducting secret investigations cannot encourage crime. Some precedent Supreme Court decisions on the subject are as follows:

"The case is about the crime of encouraging a person to engage in prostitution, or getting someone to do so, or intermediating or providing a place. If evidence that the crime has been committed cannot be obtained without the police officers provoking and fighting the perpetrator to commit the crime, it must be accepted that the police officer has assumed the role of provocative agent and the right to a fair trial has been violated." Y4CD. 2022/10061 K.

"In accordance with the established jurisprudence of the Supreme Court Criminal General Assembly, it is possible for law enforcement officers to collect information for crimes other than Article 139 of the CMK, in accordance with Article 160 and subsequent articles of the CMK, in line with the order of the Public Prosecutor and within the scope of their general powers and duties, in order to determine the crime and its perpetrator and to collect evidence related to the crime, without instigating or inciting the crime; In accordance with Article 160 and subsequent articles of the CMK, law enforcement officers may be given a written or written statement by the public prosecutor on duty. "It should be accepted that it is not lawful for them to seize a pack of smuggled cigarettes, which is the subject of the crime and the dispute, by directly encouraging the defendant to commit a crime by going directly to the workplace and saying that they want to buy "Prestige" brand cigarettes, without a verbal instruction and in the absence of any determination indicating the defendant's will to sell smuggled cigarettes, and that the evidence obtained is prohibited evidence and cannot be taken as a basis for a decision in accordance with Article 217 of the CMK." YCGK 2021/262 K.

CHAINING CRIME PRACTICE DUE TO CONFIDENTIAL INVESTIGATOR'S MEASURES

The undercover investigator should not make more than one contact with the same person while collecting evidence. Because this situation may create an incentive to commit a crime. However, if the investigator has contacted or shopped with the suspect more than once, it is considered that a single crime has occurred. Chain crime provisions do not apply. The following Supreme Court decision is in this direction:

"It is not correct to impose excessive penalties on the defendants by increasing their sentences with Article 43 of the Turkish Penal Code, assuming that taking drugs from the defendants more than once by the undercover investigator does not constitute a separate crime and that the alleged crimes are committed in a chain, without considering that there is no real "buying-selling" involved." Y10CD. 2020/4546 K.

INCIDENTAL EVIDENCE IN CONFIDENTIAL INVESTIGATOR'S MEASURES

CMK 139/6. According to the article:

"Personal information obtained by appointing an investigator cannot be used outside the criminal investigation and prosecution for which he/she is assigned. "Personal information that is not related to the crime is immediately destroyed."

As can be clearly understood from this provision, if the investigator obtains incidental evidence, this evidence can only be used as evidence for the crimes in paragraph 7. A new investigation cannot be initiated based on incidental evidence for crimes outside the scope. Evidence cannot be used during the prosecution phase.

COMMON IMPLEMENTATION OF THE CONFIDENTIAL INVESTIGATOR AND MONITORING MEASURES WITH TECHNICAL TOOL

The monitoring measure with technical means regulated in Article 140 of the Criminal Procedure Code is also one of the secret investigation measures. Various and strict conditions have been regulated for the implementation of this measure.

First of all, it should be noted that if the secret investigator measure is decided, the monitoring measure with technical means will not be decided. If this measure is also needed, a separate decision must be made, provided that the conditions in Article 140 of the CMK are met. Two precautionary decisions can be issued together. The undercover investigator can also be provided with the opportunity to monitor with technical means, which is generally how the practice works. Records made without this decision will have the nature of illegal evidence.

Again, it should not be forgotten that the undercover investigator does not have the authority to apply for any protective measures on his own.

DISCUSSION OF THE EVIDENCE COLLECTED BY THE UNDERSTANDING INVESTIGATOR AT THE HEARING

All evidence collected by the undercover investigator must be brought before the court and discussed. If the investigator must be heard as a witness, he must be heard at the hearing. We have stated the conditions of testimony above.

After evaluating the evidence, the judge makes a decision based on conscientious opinion. Because CMK art. According to article 217; The judge can only base his decision on the evidence brought to the hearing and discussed before him. This evidence is freely appreciated by the judge's conscientious opinion.

COMPARISON WITH UNDERCOVERED INVESTIGATOR AND OTHER INSTITUTIONS

Secret Investigator and Trustworthy Man

A person who is in the organization and provides information in exchange for a certain benefit is called a reliable man. The biggest difference between a trustworthy man and an undercover investigator is in terms of duty. The duty of a trustworthy man is of no importance. Besides, the reliable man is not a protection measure.

Undercover Investigator and Provocative Agent

As the name suggests, a provocative agent is someone who encourages someone to commit a crime. It generally aims to catch the person committing a crime red-handed. It is not possible for an undercover investigator to encourage a person who does not intend to commit a crime. An undercover investigator is not an instigator. In the following Supreme Court decision, it was ruled that an undercover investigator cannot engage in provocation:

"The judicial law enforcement officer conducting undercover investigation should never act as a provocative agent, and the perpetrator should not be incited to commit a crime by creating an intention to commit a crime that was not previously present in the perpetrator.

"…Although the increase in organized crime requires appropriate measures to be taken, fair trial should not be abandoned. For this reason, it is not legitimate to use the evidence obtained as a result of the police's provocation by sacrificing the right to a fair trial in order to achieve the goal..., ...Since there is no evidence in the concrete case that the police officers provoked the perpetrator to commit a crime and that the crime would have been committed without their intervention, it must be accepted that the actions of the police officers went beyond their secret agency and the right to a fair trial was violated... (Teixeria de Castro/Portugal case, Application No: 44/1997/828/1034) Y18.CD. 2018/4437 K.

Undercover Investigator and Police Officer Conducting Undercover Investigation

We have mentioned the details of this distinction in many places above. It should be noted that the duty of secret investigation is covered by CMK 160 et seq. is made according to the articles. Secret investigation can only be carried out by a judicial law enforcement officer. A secret investigation requires the order of the public prosecutor.