Consensual Surrender To Police Officers Upon Realizing They Have Drugs
Judiciary Criminal General Assembly
2016/236 E.
2019/55 K.
Decision Issued by
Court of Cassation Chamber : 10th Criminal Chamber
Court :Serious Criminal
Number : 51-186
The judgment dated 04.06.2013 and numbered 51-186 rendered by the Düzce Assize Court on the crime of drug trafficking, sentenced the defendant … to 4 years and 2 months imprisonment and a judicial fine of 1000 TL pursuant to Articles 188/3, 62, 52, 52, 53, 54 and 63 of the Turkish Penal Code No. 5237, regarding deprivation of rights, confiscation and sequestration, was appealed by the defendant and his defense counsel, and the 10th Criminal Chamber of the Court of Cassation, which examined the file, dated 27.11.2015 and numbered 4375-33092;
“Since it is understood that the procedures in the trial process were carried out in accordance with the law, the evidence was shown and discussed in the reasoned decision, the conscientious opinion was based on precise data in accordance with the documents and information in the file, it was determined that the action was carried out by the defendant, the type of crime that fits the action and the sanctions other than those mentioned below were determined correctly, the other objections of appeal that are not deemed relevant are rejected, however;
1- Investigating whether there is a search warrant for the search of the defendant’s person, if there is, the original or an approved copy of it should be brought; if there is no search warrant, upon being suspected by the law enforcement officers and asked by the law enforcement officers whether there is any criminal element on him, the defendant, who helped to reveal his own crime by voluntarily handing over to the law enforcement officers 10 packets of cannabis that he took out of the inner left pocket of his coat, saying that it was a substance, to the law enforcement officers. paragraph 3 of Article 192 of the TPC related to effective remorse should be discussed and the legal status of the defendant should be determined,
2- With the decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140 main and 2015/85 decision numbered, which entered into force by being published in the Official Gazette dated 24.11.2015 and numbered 29542 after the verdict, Article 53 of the TPC numbered 5237;
a) The section ‘As a legal consequence of a conviction to imprisonment for a crime committed intentionally;…’ in paragraph (1) is annulled in terms of the phrase ‘…from the capacity to be elected…’ in subparagraph (b) of the paragraph; the phrase ‘…to imprisonment…’ in the same paragraph is annulled in terms of the phrase ‘…from the capacity to elect and…’ in subparagraph (b) of this paragraph,
b) The phrase ‘… and from exercising other political rights’ in subparagraph (b) of paragraph (1) be annulled,
c) To annul paragraph (2) in terms of the phrase ‘From the capacity to elect and be elected…’ in subparagraph (b) of paragraph (1),
Due to the fact that the decision was made, it was decided to be reversed due to the necessity of redetermining the defendant’s situation in terms of the application of the aforementioned article”.
The Chief Public Prosecutor’s Office of the Court of Cassation, on the other hand, with the number 260176 dated 07.01.2016
“…The dispute between the Chief Public Prosecutor’s Office of the Court of Cassation and the 10th Criminal Chamber of the Court of Cassation is about whether a search warrant is required in the concrete case, and whether Article 192/3 of the TCC will be applied to the defendant due to the delivery of drugs in the absence of a search warrant.
In the evaluation of the case in line with the legal texts;
Article 38/6 of the Constitution stipulates that ‘Evidence obtained in violation of the law shall not be accepted as evidence’.
Articles 116, 117, 118, 119, 120, 121 and the following articles of the Code of Criminal Procedure also set out the principles regarding search and seizure. Accordingly, ‘Law enforcement officers may conduct searches upon a judge’s decision or with the written order of the public prosecutor in cases where it is inconvenient to delay, or with the written order of the chief law enforcement officer in cases where the public prosecutor cannot be reached. However, searches in residences, workplaces, and closed areas not open to the public may be carried out with a judge’s decision or with the written order of the public prosecutor in cases of inconvenience in delay. The results of the search conducted with the written order of the chief law enforcement officer shall be immediately notified to the Chief Public Prosecutor’s Office.’
Article 4/A, paragraph 6 of the Law No. 2559 on the Duties and Powers of the Police stipulates that ‘The police may take the necessary measures to prevent harm to themselves or others in case there is sufficient suspicion that the person stopped has a weapon or other dangerous item on him or in his vehicle. For this purpose, the person may not be asked to remove clothing or to open parts of the vehicle that are not visible from the outside. However, except for external control by hand, the search of the person’s person and belongings and the parts of the vehicle that are not visible from the outside can be carried out by the written order of the law enforcement officer to be assigned by the local authority within the principles to be determined by the Ministry of Interior, or in urgent cases, by verbal order to be confirmed in writing. The decision of the law enforcement officer shall be submitted to the approval of the judge in charge within twenty-four hours. In relation to vehicle searches conducted within the scope of this paragraph, the person shall be given a document containing the grounds for the search.’
Article 8 of the Regulation on Forensic and Preventive Searches titled search without a warrant;
In the following cases, a separate search warrant or decision is not sought, and while these are listed in a limited manner, in subparagraph (f);
‘The provision of the law in Article 24 of the Turkish Criminal Code No. 5237 and the fulfillment of the order of the superior, the legitimate defense in Article 25 and the state of necessity and the exercise of the right in Article 26 and the reasons for compliance with the law stipulated by other laws and in order to eliminate the danger of life for the public or persons in searches made in the event of a crime, or upon calls for help from closed places, to enter the dwelling, workplace and settlement and its annexes.
Paragraph 5 of Article 27 of the Regulation on Forensic and Preventive Searches states;
‘The following procedures are carried out upon a stop;
a) A check is made on the stopped person in the form of a roll call without removing any of his/her clothes. If, as a result of this procedure, there is sufficient suspicion to conclude that the person has a weapon, the officer may automatically search for weapons and other criminal property.
b) The check shall be carried out by the officer of the person’s gender.
c) The subject and reasons of the control shall be explained to the person concerned.
d) The duration of stopping a person or a vehicle must be reasonable under the circumstances and must not exceed the allotted time.
e) The control by attendance shall be carried out in the least distressing way to the person.
f) If traces, artifacts, relics and evidence subject to the crime are obtained as a result of the control, the person is arrested.
g) If it is thought that something specific, such as drugs, is concealed in any part of the person, a more extensive check may be carried out.
h) The control by means of inspection is carried out at or near the place where the person or vehicle is first stopped, in such a way that others cannot see it as much as possible. No control is carried out by taking it to another place.
i) If there is reasonable grounds, a law enforcement vehicle or a nearby enclosed space may be used for a more thorough check.
j) After the control, a report is immediately prepared at the scene upon request.
The procedures written in this article can also be carried out at night.
In Article 6, paragraph 3 of the Regulation on Arrest, Detention and Statement Taking titled ‘Arrest’, it is regulated as follows: ‘During the arrest, measures shall be taken to prevent the destruction or deterioration of the traces and evidence of the crime.
In subparagraph (j) of paragraph 1 of Article 2 of the Code of Criminal Procedure
‘In the act of committing a crime:
1. The crime in progress,
2. The offense committed by the person who has already committed the act and the offense committed by the person who was pursued and captured by the law enforcement, the person harmed by the crime or others after the act was committed,
3. The offense committed by the person who is caught with objects and evidence showing that the act was committed a little while ago,” is defined as follows.
Within the framework of the above-mentioned concrete case and the aforementioned legislation;
Pursuant to Article 20 of the Constitution and Articles 116 et seq. of the Code of Criminal Procedure, it is undoubted that search and seizure can be carried out with a judge’s decision without exception, and with the written order of the public prosecutor in cases where it is inconvenient to delay, and with the written order of the chief law enforcement officer if the public prosecutor cannot be reached.
However, in very exceptional and urgent cases, if there is a situation where even the written order of the chief law enforcement officer cannot be obtained, it should be discussed whether the evidence obtained as a result of the direct search and seizure of the law enforcement officer will be considered lawful.
Article 4/A, paragraph 6 of the Law No. 2559 on the Duties and Powers of the Police introduces a regulation in this regard, stipulating that the police may take the necessary measures to prevent harm to themselves or others in the presence of sufficient suspicion that there is a weapon or other dangerous item on the person or in the vehicle, and may carry out a manual external control, in other words, a rough body search. On the contrary, it cannot be expected that the written order of the chief of the law enforcement officer should be obtained to at least check the person who is arrested on suspicion of carrying a dangerous weapon, bomb or explosive dangerous substance.
The situations in which a search can be made without a warrant are listed one by one in Article 8 of the Regulation on Forensic Search and Preventive Searches, and in subparagraph (f), the situation of being caught red-handed is also indicated, and in Article 27 of the same Regulation, it is also stated in subparagraph (g) that if the law enforcement officer has the opinion that the person will commit or has committed a crime, a more extensive check can be made if it is thought that a certain thing such as drugs is hidden in any part of the person.
In the concrete case, as it can be understood from the incident report, the security forces went to the street where the defendant was selling drugs upon a tip-off, they saw the defendant waiting in front of a coffee house on the street, and since they saw that he was acting uneasily, they thought that he might have drugs on him and approached the defendant, first asked for his identity card, and then when asked if he had any criminal elements on him, it was understood that the defendant handed over 10 cartridges of cannabis to the security forces, which he stated that he had taken for smoking.
It is clear that the intelligence information received by the officers was not based on concrete evidence to request a judicial search warrant or a written judicial search warrant and was not at a stage to request a judicial search warrant or a written judicial search warrant. At this stage, the security forces approached the defendant based on the powers granted to them by the laws and regulations, and while they could have issued a search warrant, they first tried to seize the criminal property by asking the defendant whether he had any criminal elements on him, and handed over the drugs on the defendant to the security forces without the need for a search warrant or a search.
However, this submission does not require the application of Article 192/3 of the TCC against the defendant. Because it is understood that the security forces can conduct a rough body search on the defendant when they catch or stop the defendant, whom they have received intelligence information that he sells drugs, in accordance with Article 4-A of the 2559 SY and the provisions of the regulation explained above, since the defendant’s surrender of the drugs that can be easily found in the search to be made before this search will not require the application of the effective remorse provision, the investigation of whether there is a search warrant will not be effective on the result, therefore, the Constitutional Court’s decision on the deprivation of rights under Article 53 of the TPC will not be effective on the result. Since it is possible to consider the annulment decision of the Constitutional Court dated 08.10.2015 and numbered 2014/140 main and 2015/85 decision published in the Official Gazette dated 24.11.2015 regarding the deprivation of rights in Article 53 of the TPC at the execution stage, the conviction given to the defendant should be upheld with criticism”.
The file, which was sent to the First Presidency of the Court of Cassation by the 10th Criminal Chamber of the Court of Cassation, which examined it pursuant to Article 308 of the Code of Criminal Procedure, with the number 145-200 dated 22.01.2016 and dated January 22, 2016, on the grounds that the reasons for objection were not deemed appropriate, was evaluated by the Criminal General Assembly and decided on the grounds explained.
ON BEHALF OF THE TURKISH NATION
CRIMINAL GENERAL ASSEMBLY DECISION
The dispute between the Special Chamber and the Chief Public Prosecutor’s Office of the Court of Cassation, which must be resolved by the Criminal General Assembly;
1- Whether it is necessary to investigate whether there is a judicial search warrant or a written search warrant in the concrete case,
2- In case it is accepted that there is no need to investigate whether there is a search warrant or a written search warrant and that there is no violation of the law in obtaining the evidence subject to the crime, whether the effective remorse provision regulated in paragraph 3 of Article 192 of the TPC can be applied to the defendant,
It is about determination.
From the scope of the file examined;
According to the report dated 31.12.2012 submitted to the KOM Branch Directorate; during the intelligence work, it was learned that the person named … was selling substances in cartridges on 1st Street, Ağaköyü Neighborhood, and during the work carried out on the subject, it was found out that the person was Veysel-Aynur son, Yıldızeli-06.05. 1987, born in Sivas/Yıldızeli-Alacaköyü, registered in Sivas/Yıldızeli-Alacaköyü population, 33673682020 Turkish ID number … and it was determined that he resided in Ağaköyü Neighborhood 1975. Sokak No: 12, that he had (3) records of theft crime, and that studies were initiated against the person who was informed that he was selling substances in Ağaköyü,
According to the 04.01.2013 dated incident, arrest, body search, consensual surrender, taking under custody report; During the studies carried out by the officers of the KOM Branch Directorate, on 04.01.2013 at around 18.30, they saw a person named … waiting in front of the café located on Agaköyü Mahallesi, 1. The officers, who saw the person waiting in front of the coffee shop on the street, who was observed to be acting uneasily, evaluating that there might be drugs on the person, went to the person in question and showed their police identity cards, and the person who was asked to present his identity card gave the identity document to the officers, The person, who was asked whether there were any criminal elements on him, declared that he had used substances and that he had substances on him, and the person, who was told that the officers wanted to conduct a rough body search, voluntarily handed over to the officers (10) cartridges of cannabis, each of which was 2 grams each in white papers, which he took out of the inner left pocket of his coat, and which were evaluated to be 20 grams in total,
According to the report dated 22.01.2013 issued by the Istanbul Police Criminal Laboratory, 4.35 grams of substance could be obtained from 8.7 grams of cannabis pieces,
According to the report of Düzce University Research and Application Hospital dated 29.01.2013; no drugs or stimulants were found in the urine sample taken from the defendant on 18.01.2013,
According to the letter dated 02.05.2013 and numbered 156 of the Hendek District Security Directorate and the attached investigation report dated the same date; it was reported that the person known by the nickname Uncle Felek in the Turanlar Neighborhood of Hendek district was …,
It is understood.
Witness …; his nickname was Uncle Felek, he did not know the defendant and did not give drugs to the defendant, he had no knowledge of the incident,
Record-keeping witnesses Ethem Türkmen and Nazım Ayhan stated that they had received information that the defendant was selling drugs while they were working on the streets and that they were working on this issue, that the minutes were correct and that the signatures under their names belonged to them, and that they repeated the contents exactly,
They testified.
The defendant … stated that he used drugs, that he bought the narcotic substance seized on him in cartridges in exchange for 100 TL from a 55-60 years old, 165 cm tall, medium weight, bearded, bearded, gypsy person whom he knew as Felek in Turanlar Neighborhood of Hendek district at around 16.30 on the day of the incident, that he did not know whether the real name of the person was Felek and his surname, that after buying the marijuana, he came to Düzce around 18. 00, the police officers came to Düzce and entered the neighborhood where he resided, while he was waiting for his friend at the coffee house, the police officers came, he gave the marijuana he had on him to the police officers, he did not sell drugs to anyone, in addition to the prosecutor’s office; when the police officers came to him and said “Raise your arms”, he handed over the marijuana in the form of (10) cartridges wrapped in newspaper wrapped in his inner pocket, during the interrogation; In the interrogation, he argued that the police officers asked him for his identity card when he was about to enter the coffee house and that he handed over the hashish wrapped in (10) separate pieces of paper to the officers, and in the court he argued that the person he knew as Uncle Felek, from whom he bought the hashish, was the grandfather of Tuncay Özkara, who lived in Turanlar Neighborhood, Hendek district.
It is useful to evaluate the dispute issues separately.
1- Whether it is necessary to investigate whether there is a judicial search warrant or a written search warrant in the concrete case;
In order to resolve the dispute in an accurate manner, it is useful to examine the constitutional and legal regulations on the subject after mentioning the legal nature of the “search” measure and the general principles governing this measure.
A- Protection Measure in General:
In order to ensure that criminal proceedings are carried out or that the decision to be rendered at the end of the criminal proceedings does not remain on paper and that the costs of the proceedings are met, the legal remedies that are temporarily applied by the authorities who have the authority to make decisions in criminal proceedings, in cases where there is an inconvenience in delay, and that require interference with certain fundamental rights and freedoms before the judgment are called “protection measures”. (Bahri Öztürk, Behiye Eker Kazancı, Sesim Soyer Güleç, Protection Measures in Criminal Procedure Law, Seçkin, 2013, 1st Edition, p.1 )
Protection measures are generally regulated in the Code of Criminal Procedure No. 5271. The Fourth Section of the First Book of the Code of Criminal Procedure is titled “Protection Measures” and search and seizure measures are included in this section. According to this clear regulation of the law, search and seizure are protection measures.
Although it is not yet established by a judicial decision whether a crime has actually been committed or whether it has been committed by the suspect who is the subject of the process, protection measures interfere with the fundamental rights and freedoms of both the suspect and third parties who are not in the status of suspects, with seeming justification due to the inconvenience of delay. For this reason, protection measures should be applied in a measured manner, in cases that are justified on the face of it and in cases where there is a danger or danger in delay.
The principles of arrest and detention are set out in Article 19 of the Constitution under the title “Personal liberty and security”;
“Everyone has the right to personal liberty and security.
The form and conditions of which are prescribed by law:
Fulfillment of penalties and security measures restricting liberty imposed by the courts; arrest or detention of the person concerned pursuant to a court order or an obligation stipulated by law; fulfillment of a decision to rehabilitate a minor under supervision or to bring him/her before the competent authority; the execution of a measure taken in accordance with the principles set forth in the law for the treatment, education or rehabilitation in an institution of a mentally ill person, a drug or alcohol addict, a vagrant or a person capable of spreading disease who poses a danger to society; the arrest or arrest of a person who seeks to enter or has entered the country in violation of the procedure, or for whom a deportation or extradition order has been issued.
Persons against whom there is a strong indication of guilt may be arrested only by a judge’s order in order to prevent their escape, destruction or alteration of evidence, or in other cases such as these, which make arrest compulsory and which are specified in the law. Arrest without a judge’s order may be made only in case of an offense or in cases where delay is inconvenient; the law specifies the conditions for this…”.
Article 2 of the Code of Criminal Procedure provides a definition of the offense and Article 90 of the same Code, under the heading of protection measures, regulates the arrest and the procedures to be carried out on the captured person.
“Article 2: …j) Criminal offense:
1. The crime in progress,
2. The offense committed by the person who has already committed the act and the offense committed by the person who was pursued and captured by the law enforcement, the person harmed by the crime or others after the act was committed,
3. The offense committed by a person who is caught with objects and evidence showing that the act has just been committed…”
In line with the definition in the article; for example, in the event that the perpetrator stabs the victim, Article 2/j-1 of the Code of Criminal Procedure shall apply; in the event that the perpetrator is caught in pursuit after stabbing the victim, Article 2/j-2 of the Code of Criminal Procedure shall apply; and in the event that the perpetrator is caught with a bloody knife in his hand immediately after the stabbing act, Article 2/j-3 of the Code of Criminal Procedure shall apply.
“Apprehension and the procedures to be carried out on the apprehended person
Article 90: (1) Temporary arrest may be made by anyone in the following cases:
a) The person is encountered while committing the offense.
b) There is a possibility that the person being pursued for a criminal offense may flee or there is no possibility to immediately determine his/her identity.
(2) Law enforcement officers shall be authorized to arrest in cases requiring the issuance of an arrest warrant or a warrant of arrest and in cases where there is an inconvenience in delay; if there is no possibility to immediately apply to the public prosecutor or their superiors.
(3) Although the investigation and prosecution is subject to complaint, the arrest of a person is not subject to complaint in cases of a crime committed against children, persons incapable of managing themselves due to physical or mental illness, disability or incapacity.
(4) The law enforcement officer shall immediately inform the person apprehended of his legal rights after taking measures to prevent him from escaping or harming himself or others.
(5) The public prosecutor shall be immediately informed about the person and the incident who is apprehended and handed over to the law enforcement officers pursuant to the first paragraph or who is apprehended by the officers pursuant to the second paragraph, and action shall be taken in accordance with his order.
(6) In the event that the purpose of issuing the arrest warrant disappears due to the fulfillment of the procedure subject to the arrest warrant, the court, judge or public prosecutor shall immediately request the return of the arrest warrant.”
Pursuant to the Article, everyone has the authority to temporarily arrest a person in cases where the person is encountered while committing a crime or in cases where it is not possible to prevent the escape of the person being pursued for a criminal offense or to immediately identify the person. Law enforcement officers have the authority to arrest in cases where there is a danger of delay that requires the issuance of an arrest warrant or a warrant for arrest; if they do not have the opportunity to reach the public prosecutor or their superiors. The law enforcement officer must take measures to prevent the person apprehended from escaping or harming himself/herself or others, immediately inform the public prosecutor and take action in line with his/her orders.
Article 13 of the PVSK No. 2559 authorizes the police to arrest suspects who have strong traces, artifacts, signs or evidence that a crime has been committed or a crime has been attempted in case of a crime or in other cases where delay is inconvenient.
Article 13 of the PVSK in force at the time of the offense;
“Police,
A) In case of a crime in progress or in other cases where delay is inconvenient, suspects against whom there are strong traces, traces, signs or evidence that a crime has been committed or a crime has been attempted,
B) Those who have an arrest or detention warrant issued by the competent authorities,
C) Those who are intoxicated to the extent of disturbing the comfort of the public or causing a scene, or those who attack others in a state of intoxication, those who continue these actions despite the warnings made, those who attempt to attack others and those who fight,
D) Those who have entered the country illegally or against whom a deportation or extradition order has been issued,
E) Those who oppose the measures taken by the police in accordance with the law, resist and prevent them from performing their duties,
F) Persons who are mentally ill, drug or alcohol addicted vagrants or persons who may transmit diseases and who pose a danger to the society in order to fulfill the measures taken for their treatment, education and rehabilitation in an institution in accordance with the laws and the principles specified in the by-laws on the implementation of this Law,
G) Minors for whom a decision has been taken to rehabilitate them under supervision or to bring them before the competent authority,
Arrests and takes the necessary legal action…”.
The principles of search and seizure are regulated under the titles of “Privacy of private life” in Article 20 and “Immunity of residence” in Article 21 of the Constitution.
Article 20 of our Constitution;
“Everyone has the right to demand respect for his private and family life. The privacy of private and family life shall be inviolable.
No one’s person, private papers and belongings may be searched or seized without a duly issued judge’s decision based on one or more of the following reasons: national security, public order, prevention of crime, protection of public health and morals or protection of the rights and freedoms of others; and in cases where it is inconvenient to delay due to these reasons, without the written order of the authority authorized by law. The decision of the competent authority shall be submitted for the approval of the judge in charge within twenty-four hours. The judge shall announce his decision within forty-eight hours of the seizure; otherwise, the seizure shall automatically cease…”
Article 21 reads;
“No one’s dwelling shall be touched. No one’s residence may be entered, searched or seized unless there is a duly issued judge’s decision based on one or more of the reasons of national security, public order, prevention of crime, protection of public health and public morals or protection of the rights and freedoms of others; and in cases where it is inconvenient to delay due to these reasons, unless there is a written order of the authority authorized by law. The decision of the competent authority shall be submitted to the approval of the judge in charge within twenty-four hours. The judge shall announce his/her decision within forty-eight hours of the seizure; otherwise, the seizure shall be lifted automatically”.
The limitation of fundamental rights and freedoms is constitutionally guaranteed and subject to certain conditions under Article 13 of the Constitution. According to this regulation, fundamental rights and freedoms may be restricted without prejudice to their essence only for the reasons specified in the relevant articles of the Constitution and only by law. These limitations cannot be contrary to the word and spirit of the Constitution, the requirements of the democratic social order and the secular Republic, and the principle of proportionality.
B- Search as a Protection Measure and its Types:
1. Search Concept
Arama means “search work, search, trying to find someone or something, searching, probing” (Turkish Dictionary, Turkish Language Association Publications, 2009, p.113)
Since a search is an activity carried out to reveal what is hidden, things that are visible or left in the open cannot be the subject of a search. For example, a police officer’s seizure of drugs or a pistol in the back seat of a vehicle stopped for being used in a way that poses a danger to pedestrians or other vehicles is not considered a search. (Veli Özer Özbek, Ceza Muhakemesinde Koruma Tedbiri Olarak Arama, Seçkin, 1999, 1st Edition, p.18)
The search is carried out on the residences, workplaces, vehicles, other places, persons’ bodies, belongings, private papers, computers and computer programs and logs they use. The search conducted on the person must not reach the dimension of a physical examination. This is because body examination and taking samples from the body are subject to different provisions than search, and looking at the genitals or anus is considered as an internal body examination. Examining body cavities such as the mouth, armpits and body parts such as the feet, arms and hair without the use of medical instruments or methods is subject to search provisions.
The provisions on searches are not only regulated in the Criminal Procedure Code. As stated in Article 3 of the Regulation on Forensic and Preventive Searches, which regulates in detail the procedures for conducting searches As stated in Article 3 of the Regulation on Forensic and Preventive Searches, the Law No. 2559 on Police Duties and Powers, Law No. 2803 on Gendarmerie Organization, Duties and Powers, Law No. 2692 on Coast Guard Command, Anti-Smuggling Law No. 5607, Provincial Administration Law No. 5442, Law No. 6222 on Prevention of Violence and Irregularity in Sports, Law No. 5188 on Private Security Services, Law No. 5253 on Associations, Law No. 2935 on State of Emergency, Law No. 1402 on Martial Law and Decree Law No. 485 on the Organization and Duties of the Undersecretariat of Customs also set forth rules in this regard.
2. Types of Search
Search is divided into two as “judicial search” and “preventive search” according to its purpose. A search may be conducted for the purpose of obtaining the suspect or the accused or evidence, as well as for the purpose of preventing the commission of a crime or a danger. The first type of search is called “judicial search” and the second type of search is called “preventive search”. In this respect, a search is both a protection and a prevention measure. Although there are common features between both types of searches, there are also significant differences in terms of their legal qualifications, the legal regulations they are subject to and their scope.
a. Prevention Search
Preventive search, which is used for the protection of general security and public order and the prevention of dangers, is regulated in Articles 9 of the PVSK No. 2559 and Articles 18-26 of the Regulation on Forensic and Preventive Searches, and Article 19 of the Regulation reads as follows Article 19 of the Regulation defines the preventive search as follows: “It is the search of persons’ bodies, vehicles, private papers and belongings in the places specified in the second paragraph, with the written order of the judge or the written order of the administrative officer in cases where delay is inconvenient, in order to protect national security and public order, public health and morals or the rights and freedoms of others, to prevent the commission of crime, to detect all kinds of weapons, explosive substances or goods that are prohibited to be carried or possessed”. In this way, the public will be protected from an imminent danger by finding people and goods that may disrupt public security and order and preventing a possible harm or crime from being committed.
In order to decide on a preventive search, there must be a concrete and foreseeable danger regarding the specified issues. The PVSK No. 2559 defines this type of danger as “reasonable grounds”. “Reasonable suspicion” based on concrete facts that criminal evidence may be obtained and ‘reasonable grounds’ in preventive searches are different concepts. “Reasonable cause” is a fact that is interpreted and evaluated by experts with a common opinion, while ‘reasonable suspicion’ is a situation where a large number of ordinary people evaluate a concrete fact in the same direction. (Feridun Yenisey, Ayşe Nuhoğlu, Ceza Muhakemesi Hukuku Ders Kitabı, Seçkin, 4th Edition, 2016, pp. 381-382)
Preventive searches can only be conducted in places stipulated by law. Article 9 of the PVSK No. 2559 lists the places where a precautionary search can be made one by one, based on the areas where a concrete and imminent danger may arise, and accordingly, a precautionary search is as follows
1) At or near the place where meetings and demonstration marches within the scope of the Law No. 2911 on Meetings and Demonstration Marches are held,
2) In the immediate vicinity of the place where the general assembly meetings of private law legal entities and professional organizations or trade unions with the status of public institutions are held,
3) In places where the public is or may be congregated,
4) In order to ensure the freedom of education and training, upon the request of the administrators of educational and training institutions at all levels and in case of the possibility of incidents that cannot be prevented with the means of the institution, the rector, and in urgent cases, the dean or the authorities of the affiliated institution, request the assistance of the law enforcement, inside the higher education institutions to be entered, their immediate surroundings and their entrances and exits,
5) In public or public places,
6) It can be carried out in all kinds of public transportation vehicles and traveling vehicles.
It is not possible to conduct a preventive search in residences, residential areas, non-public workplaces and their annexes in any way, and only judicial searches can be carried out in these places if there are conditions.
…