Violation Of The Right To Property Due To Confiscation Of Mobile Phone Without Establishing A Connection With The Crime
Events
Within the scope of the investigation carried out by the Security Directorate teams following a tip-off, B.M.D. was detained while delivering drugs to the informant. When B.M.D.’s house was searched, B.B. and the applicant were found there. During the search, various amounts of narcotic drugs, sensitive scales, bags used for packaging narcotic drugs and some money were seized.
During the search conducted on the applicant’s person, a mobile phone and a SIM card attached to this phone were seized and recorded in a police report. Upon the request of the Chief Public Prosecutor’s Office (Chief Public Prosecutor’s Office), the Criminal Judge of Peace approved the seizure and authorised the examination of the mobile phone and SIM card. There is no information in the individual application file as to whether the applicant’s mobile phone was examined and, if so, what the results were.
The 13th Assize Court (the Court) concluded that the applicant had committed the offence of possession of narcotic drugs and sentenced him to 8 months in prison, deferred the announcement of the conviction and ordered the confiscation of the criminal property stored in the judicial custody pursuant to Article 54 of the Turkish Penal Code No. 5237. The applicant’s mobile phone registered in the judicial custody was also confiscated. No justification was given in the decision regarding the paragraph of the judgement regarding the confiscation of the applicant’s mobile phone and SIM card. The applicant’s appeal against this decision was rejected by the 14th Assize Court.
Allegations
The applicant claimed that his right to property was violated due to the confiscation of his mobile phone, which was not found to have been used in the offence.
Court’s Assessment
The regulation of rights and freedoms, their interventions and limitations by law is one of the most important elements of a democratic state of law that prevents arbitrary interference with these rights and freedoms and ensures legal security.
In the concrete case, the applicant’s mobile phone was seized as part of the criminal investigation against the applicant, and then it was decided to confiscate the mobile phone. Article 54 of the Law No. 5237 was cited as the legal basis of the confiscation decision. In the first sentence of paragraph (1) of the said Article, it is stated that -provided that they do not belong to bona fide third parties- confiscation of the property used in the commission of an intentional offence or allocated to the commission of an offence or resulting from an offence shall be ordered.
However, it is not enough for the interference to have a legal basis in a formal sense, the connection of the concrete event with this law must be shown based on an acceptable reasoning. The applicant’s mobile phone was seized and the Criminal Judge of Peace’s decision permitted the examination of the applicant’s mobile phone. However, the Court’s decision does not contain any explanation of the examination and its results.
At no stage of the investigation was it assessed that the applicant’s mobile phone had been used in the offence and it was not alleged that the applicant had used the mobile phone to obtain the drugs he needed. In this case, since it is not shown in the court decision that the applicant’s mobile phone was used in the commission of the offence of possession of drugs for use, it cannot be said that the connection of the concrete incident with the law has been established. In this respect, it is concluded that the interference with the applicant’s right to property lacks legal basis.
The Constitutional Court decided that the right to property was violated for the reasons explained.
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