Monitoring Of Communications Made Via Telecommunications
Detection and Monitoring of Communications for Preventive Purposes This refers to the monitoring and recording of telephone or similar telecommunications devices and conversations between individuals for intelligence purposes.
With a court order or, in cases where delay would be detrimental, with a written order from the authorized administrative authority, communications made via telecommunications may be identified, monitored, signal information may be evaluated, and recordings may be made. In cases where delay would be detrimental, the written order shall be submitted to the authorized and competent judge for approval within 24 hours. The judge shall issue a decision within 24 hours at the latest. Upon the expiration of the period or if the judge decides otherwise, the measure shall be lifted. In this case, the recordings of the content of the interception shall be destroyed within 10 days at the latest; this shall be recorded in a report, which shall be kept for presentation during an audit. If the measure applied is terminated, the recordings of the content of the interception shall be destroyed within ten days at the latest. This shall be recorded in a minutes, which shall be retained for presentation during an audit. The decision and written order shall include the identity of the person to whom the measure will be applied, the type of communication device, the telephone numbers used or the code that enables the identification of the communication connection, the type, scope, and duration of the measure, and the reasons necessitating the application of the measure.
Judicial Wiretapping: The monitoring and recording of telephone or similar telecommunications devices and conversations between individuals for the purpose of obtaining evidence during the investigation or prosecution of a crime.
The monitoring of communications is envisaged as a secondary measure following general evidence gathering procedures, thereby limiting the possibility of interference with the individual’s freedom of communication. This measure is subject to the prerequisite that a criminal investigation and prosecution are being conducted in connection with a crime and that the suspect or defendant’s communications are being monitored within this scope. The grounds for strong suspicion include the absence of any other means of obtaining evidence and the fact that the act subject to the interception and recording of telephone conversations falls within the scope of one of the crimes listed in Article 135/6 of the Criminal Procedure Code. The judge decides on the interception and monitoring of communications. The judge’s decision specifies the type of crime, the identity of the person subject to the measure, the code enabling the identification of the communication link, the nature, content, and duration of the measure. In cases where delay would be detrimental, the public prosecutor may issue an interception and monitoring order. The public prosecutor immediately submits the decision he has made to the judge for approval, and the judge issues his decision within 24 hours at the latest. Upon the expiration of the period or if the judge decides otherwise, the measure is immediately lifted by the public prosecutor. If the judge does not find the decision of the public prosecutor’s office appropriate and does not approve it, the public prosecutor’s office may appeal against this decision. In the event of the destruction of records related to interception and monitoring, the Chief Public Prosecutor’s Office shall provide written information to the relevant party regarding the reason, scope, duration, and outcome of the measure within 15 days of the conclusion of the investigation phase. The measure may be ordered for a maximum of three months. The period may be extended once, for a total of six months.
Cases in Which Telephone Interception Violates Freedom of Communication
Without a court order issued in accordance with the procedure for reasons related to national security, public order, prevention of crime, protection of public health and morals, or protection of the rights and freedoms of others; or in cases where delay would be detrimental for the same reasons, without a written order from the authority authorized by law; the restriction of communication and the violation of its confidentiality.
Interference with freedom of communication by public authorities for purposes other than national security, public safety, the material well-being of the country, the protection of order and stability, the prevention of crime, the protection of health or morality, or the protection of the rights and freedoms of others.
Freedom of communication is regulated as a protective measure in Article 135 of the Criminal Procedure Code, and the legal interest protected is regulated in Article 132 of the Turkish Penal Code. The following are regulated as violations in these articles:
-Violation of the confidentiality of communication between individuals or violation of this confidentiality by recording the content of communications.
– The unlawful disclosure of the content of communications between individuals.
The public disclosure of the content of communications without the consent of the other party.
– The publication of the content of communications between individuals through the press and media.
Telephone Surveillance from the Perspective of the Defense
The defense’s immunity, which is a result of the suspect and defendant’s right to communicate and correspond without supervision or surveillance (CMK Article 154), prohibits the monitoring of communications with the suspect and defendant. In this case, the defense’s office, residence, and telecommunications devices at their place of residence cannot be monitored. There is no prohibition on wiretapping telecommunications devices located outside these places, and no prohibition has been established for mobile phones. However, despite the absence of a prohibition, the defense attorney also has the right to refuse to testify, and therefore, communication between the suspect/defendant and the defense attorney cannot be recorded in accordance with CMK Article 135/2.