What is confusation

Confiscation is a type of sanction that has been used in almost all legal systems since ancient times. The simplest definition of the institution of confiscation is the transfer of a person's ownership of something to the public due to a crime committed. The institution of confiscation, which must be limited to legal standards due to its impact on the right to property, has found its application in Article 54 of the Turkish Penal Code. Additionally, the law makes a dual distinction between confiscation of earnings and confiscation of goods.

CONDITIONS OF GOODS CONFECTION

As we mentioned above, the effects of the confiscation institution on the property right required that this institution be limited to legal measures. These limitations are:

1- The goods to be confiscated should not belong to well-intentioned third parties.

Article 54 of the Turkish Penal Code "Provided that they do not belong to well-intentioned third parties, the property used in the commission of an intentional crime or allocated to the commission of the crime or the property resulting from the crime shall be confiscated. The property prepared to be used in the commission of the crime shall be confiscated if it is dangerous in terms of public security, public health or public morality." It is as follows. In other words, if the goods belong to a well-intentioned third party, a confiscation decision cannot be made. This prohibition also covers the use of the item in a crime. In other words, property belonging to a well-intentioned third party cannot be confiscated even if it is used in a crime.

For example, in a crime committed by person C against person B by using the licensed gun belonging to person A, the confiscation will be decided by taking into consideration the good will of A. If A is in good faith, his gun will be returned to him. Here, good faith should not be understood as good faith in the sense of the Turkish Civil Code. Because, in order to be considered in good faith within the meaning of the Turkish Penal Code, it is sufficient not to have participated in the crime. While goodwill in the sense of the TMK comes to the fore during the acquisition of rights, here there is a loss of rights. For this reason, it should not be forgotten that the expressions in the two laws do not have the same meaning. In short, when conducting a good faith investigation in terms of confiscation, the third person's participation in the crime is taken into consideration. If there is no participation, there is good will. In other words, it will not be necessary for the third party to know or have known that the crime will be committed.

The Supreme Court stated, "When the statements of the defendants that they took the vehicle as a consignment for the purpose of carrying goods and that the owner of the vehicle was not aware that he entrusted the vehicle to the defendants and that they were going to carry cigarettes were evaluated together, it is wrong to decide to confiscate the vehicle instead of returning it, considering that the vehicle owner was a well-intentioned third party who did not know that the vehicle would be used in the crime." The decision in the form concretizes our example.

Again, the Supreme Court stated, "Since the transport vehicle used in the crime was rented from a car rental company, and there is no evidence that the license holder of the relevant transport vehicle was aware that cigarettes would be carried in the vehicle, it should be decided to confiscate the transport vehicles, which do not have confiscation conditions, instead of returning them to the owner, considering that the vehicles belong to bona fide third parties." There is also a decision as follows. The important point to be noted here is that the property belonging to a well-intentioned third party does not constitute a crime in itself. Goods whose production, possession, use, transportation, purchase and sale constitute a crime are subject to confiscation in any case, even if the action does not constitute a crime. For example, possession of an unlicensed gun has been defined as a crime in itself. Even if the gun belongs to someone else, it will be confiscated.

2- However, confiscation is possible in crimes committed intentionally.

Confiscation cannot be ordered for crimes committed by negligence. An item can only be confiscated if it was used in a deliberate crime.

3- The principle of proportionality must be respected when applying the institution of confiscation.

In the ECHR's continuous decisions, it has been emphasized that there must be a reasonable balance between the sanction foreseen by the legislator and the aim to be achieved. As a matter of fact, Article 54/3 of the Turkish Penal Code. The provision in the article "When it is understood that the confiscation of the goods used in the crime will have more severe consequences compared to the crime committed and will therefore be contrary to justice, the confiscation may not be ordered." is in parallel with the decisions of the ECHR.

Again, in a decision of the Supreme Court, "there is no concrete evidence that the person who is the license holder of the transportation vehicle used in the crime and whose confiscation is requested is not the bona fide owner of the registration within the scope of the file, and when the volume and value of the transportation vehicle and the amount and value of the smuggled goods seized are evaluated together, it would be against equity in accordance with Article 54/3 of the TCK No. 5237 to confiscate the transportation vehicle." It is inappropriate to order the vehicle to be confiscated in writing instead of returning it to the registered owner." He emphasized that the confiscation decision can be made within the framework of the principle of proportionality.

4- In order for a confiscation decision to be made, a relationship between the crime and the confiscation must be established.

The basis for this condition is Article 54/4 of the Turkish Penal Code. Article "Goods whose production, possession, use, transportation, purchase and sale constitute a crime shall be confiscated." It creates the following provision. According to the relevant article;

- Items directly used in the commission of the crime may be confiscated.

- Goods allocated for the commission of the crime may be confiscated.

- Goods obtained from a crime can be confiscated. If an item was not directly used in the commission of the crime, was not obtained from the crime, or was not allocated to the commission of the crime, a confiscation decision cannot be made for that item.

5- Confiscation of Valuable Value (Equivalent) Should Be Applicable.

TCK 54/2. In accordance with the article; In case the goods within the scope of confiscation are eliminated, disposed of, consumed or their confiscation is made impossible in any other way, it is decided to confiscate an amount of money equal to the value of these goods. Thanks to this institution, which is known in practice as "confiscation of real value", for example, if the vehicle used in the crime is sold and disposed of during the investigation phase, the current market value of the vehicle on the date of the crime is collected from the defendant and confiscated.

EARNINGS CONSTRAINT

Earnings confiscation is regulated in Article 55 of the Turkish Penal Code. According to the relevant article;

- Material benefits obtained by committing the crime,

- Material benefits that constitute the subject of the crime or provided for the commission of the crime,

- Economic gains resulting from their evaluation or transformation may be confiscated.

If the goods subject to confiscation cannot be seized, the values ​​corresponding to their value are confiscated.

55. In the last paragraph of the article: "In order for the goods within the scope of this article to be confiscated, the person who subsequently acquired the goods must not be able to benefit from the provisions of the Turkish Civil Code No. 4721 dated 22/11/2001 regarding the protection of good faith." provision is included. The legislator also referred to the good faith provisions here.

Unlike Article 54, the existence of good faith within the meaning of the TMK is required here. Therefore, if the person who subsequently acquires the goods is not in good faith within the meaning of the Turkish Civil Code, the goods will be confiscated.

CONSIZATION AND HAGB

In the past years, CMK art. Since the Postponement of the announcement of the verdict (HAGB) decisions given in accordance with Article 231 have the nature of a suspended decision, the confiscation decisions made together with this decision will also remain suspended during the audit period and cannot be executed. was accepted. As a matter of fact, in its decision dated 20.06.2019 (Application Number 2015/6164), the Constitutional Court deemed the execution of the confiscation process based on an unfinalized and pending HAGB decision as a violation of the right to property.

However, after the annulment decisions of the Constitutional Court, the legislator took action and with the Law No. 7499 dated 12.03.2024 (8th Judicial Package) and CMK art. He made radical changes in 231. With the new regulation that came into force on 01.06.2024, CMK art. The following sentence was added to 231/11: "In case a decision is made to postpone the announcement of the verdict, the provisions regarding confiscation will apply."

Therefore, according to the current legal situation; Even if a HAGB decision has been made against the defendant, the confiscation decision regarding the goods or earnings subject to confiscation will no longer remain suspended and will be executed immediately.

CONSIZATION AND STATE OF OBLIGATION

We have listed above the legal criteria for making a confiscation decision. One of these criteria is the association of the goods with the crime in order for the confiscation decision to be made. However, in case of necessity, since there will be no crime requiring conviction, a confiscation order will not be given.

As a matter of fact, the decision of the General Criminal Assembly of the Supreme Court dated 24.10.1977, numbered 1977/332 E. and 1977/375 K. ''It is lawful to acquit the defendant headman since it is understood that he took out his gun and shot it into the air in order to calm down a fight he encountered in the town and to call the police to prevent the serious events that were expected to occur and only for this reason.'

LEGAL REMEDIES AGAINST CONSIZATION

As a rule, an appeal is open against confiscation decisions. In the past, only appeals could be made against confiscation decisions made together with HAGB decisions. However, as a result of the amendment made by Law No. 7499 (8th Judicial Package) and entered into force on 01.06.2024, the legal remedy of objection against HAGB decisions was abolished and the legal remedy of appeal was introduced (CMK art. 231/12).

In this respect, in accordance with the current legislation, it is possible to appeal directly before the Regional Courts of Justice against all confiscation decisions made together with the conviction or HAGB decision.