Search as a protective measure, in other words, judicial search, is regulated, along with seizure, in Articles 116-134 of Code of Criminal Procedure No. 5271 and Articles 5-17 of the Regulation on Judicial and Preventive Searches. Article 5 of the Regulation defines a judicial search as “a search conducted in accordance with Code of Criminal Procedure No. 5271 and other laws, in the residence, workplace, other premises belonging to a person, on their person, on their personal papers, belongings, or on their vehicle, in order to capture a person, a person in hiding, a suspect, an accused, or a convict under reasonable suspicion of committing, participating in, or abetting a crime, and to obtain traces, artifacts, signs, or evidence of the crime, while limiting the privacy of their private and family life.”
The purpose of a judicial search is to capture the suspect or accused or to obtain evidence of the crime. Areas subject to search include the person, belongings, residence, workplace, or other premises belonging to the suspect or defendant, or another person. While a judicial search can be conducted at any time of day, searches of residences, workplaces, and other enclosed spaces must, as a rule, be conducted during the day. Except for searches conducted in the act of crime or in cases where delay would be detrimental, or for the purpose of recapturing an escaped person, detainee, or convict who has been apprehended or detained, searches cannot be conducted at night.
For a search warrant to be issued, there must be a certain degree of suspicion that the person or items forming the subject of the search are present in the area to be searched. The law regulates the intensity of this suspicion differently depending on the person being searched and makes searches subject to stricter conditions for individuals not involved in the crime.
In searches conducted on a suspect or defendant, the search requires reasonable suspicion that the suspect or defendant will be apprehended or that evidence of the crime will be obtained. This is established by Article 116 of the Turkish Code of Criminal Procedure. In this context, Article 116 of the Law stipulates that “if there is reasonable suspicion that a person may be arrested or that evidence of a crime may be obtained, the person, belongings, residence, workplace, or other premises of the suspect or defendant may be searched.” Simple suspicion is not considered sufficient for the application of a search protection measure; it requires the existence of “reasonable suspicion.” It should be noted that the Law does not provide a specific definition of reasonable suspicion. In the doctrine, reasonable suspicion is determined by considering factors such as the time and place of the search, the behavior of the person concerned or those accompanying them, and the nature of the items the law enforcement officer suspects are being carried. Furthermore, a report or complaint alone is not considered sufficient to establish reasonable suspicion; the existence of supporting evidence is required. In other words, the suspicion must be based on concrete facts that foresee that a specific person will be arrested or that a specific item will be found as a result of the search.
On the other hand, a search must be based on a written decision or order. Even if it is later converted into writing, a search cannot be conducted with a verbal order; the requirement for written consent is stipulated by Articles 20 and 21 of the Constitution and Article 116 of the Code of Criminal Procedure. As a rule, a search may be conducted by a judge’s order; in cases where delay is permissible, by a written order of the public prosecutor; or, if the public prosecutor cannot be reached, by a written order of the law enforcement officer. However, searches in residences, workplaces, and closed areas not open to the public are only permitted by a judge’s order or, in cases where delay is permissible, by a written order of the public prosecutor.
It is important to note that the search order or order must contain certain information. The search order or order must clearly state the act constituting the reason for the search, the person to be searched, the address or belongings of the residence or other place where the search will be conducted, and the period of time for which the order or order will be valid. Otherwise, the search will be unlawful.
Court of Cassation 7th Criminal Chamber, Merits No: 2013/5178, Decision No: 2013/23749;
“When the amended decision of the A. 3rd Criminal Court of Peace, a copy of which is in the file, is examined, it was decided that “searches should be conducted in the workplaces and outbuildings located on … Street, … Boulevard, … District, … Province, starting from number 1 and ending at number 25.” Based on this decision, a search was conducted at the defendant’s workplace and the books in question were seized. When the legal regulations regarding our case are examined; In the complaint petition of the attorney participating in the concrete case, there is no mention of evidence or signs that the defendant sells pirated books, but rather general, abstract allegations. The petition in question does not contain elements that justify reasonable suspicion for the search. The suspicion is not based on a specific fact, it remains merely an allegation. The person to be searched, and the act that constitutes the reason for the search, are not clear. In this way, allowing a judicial search starting from workplace number 1 on … Street and ending at workplace number 25, exceeds the purpose of preventing crimes and dangers and violates the legal security of those who resort to arbitrariness that reaches the level of a general search. “This would be an unlawful decision, and the evidence obtained as a result of such a search cannot be considered legal. Therefore, the decision made by the Ankara 3rd Criminal Court of Peace regarding the judicial search is unlawful, and the expert report stating that the books seized at the workplace searched based on this decision and which constitute primary evidence were not banderol cannot be relied upon, and this evidence, which was obtained unlawfully according to Article 38/6 of the Constitution and Articles 206/2-a, 217/2, 230/1 and paragraphs of Law No. 5271, cannot be used as the basis for the decision.”[2]
As is clearly evident from the decision in question, a search conducted without complying with the terms of a search warrant, despite the existence of one, will be unlawful. Since the evidence obtained as a result of such a search or the material subject of the crime will be “obtained by unlawful methods,” it cannot be used as the basis for a judgment pursuant to Article 38 of the Constitution and Articles 206/2, 2017/2, 230/1, and 289/1 of the Code of Criminal Procedure.
Court of Cassation, General Assembly of Criminal Procedure, Merits No: 2013/610, Decision No: 2014/512;
“The consequence of the unlawful nature of a search, from a criminal prosecution perspective, is that the evidence obtained as a result of the search cannot be used as the basis for a judgment. Article 217 of the Criminal Procedure Code No. 5271 states: “1) The judge may base his decision only on evidence submitted to the hearing and discussed in his presence. This evidence is freely evaluated according to the judge’s conscience.” The provision, which states, “The charged crime may be proven with any evidence obtained in accordance with law,” stipulates that the judge may only consider evidence obtained through methods permitted by law.
Article 2, paragraph 2 (a) of the aforementioned law also states that if the evidence sought to be presented was obtained unlawfully, it will be rejected, and it clarifies that evidence not obtained lawfully will not be accepted as evidence and will not be used as the basis for the verdict. Furthermore, pursuant to the first paragraph of Article 230 of the same law, the justification for the conviction must discuss and evaluate the evidence, specify the evidence used as the basis for the verdict and the evidence rejected. In this context, it is also mandatory to separately and clearly present any evidence obtained through unlawful methods within the file.”[3]
[1] The following academic article was used in the study: Atan, Muhammed Satuk Buğrahan. “YARGI KARARLARI BAĞLAMINDA HUKUKA AYKIRI ARAMA”. Erciyes Üniversitesi Hukuk Fakültesi Dergisi 19, no. 1 (April 2024): 557-607. https://doi.org/10.58820/eruhfd.1475732.
[2] Court of Cassation 7th Criminal Chamber, Merits No: 2013/5178, Decision No: 2013/23749.
[3] Court of Cassation, General Assembly of Criminal Procedure, Merits No: 2013/610, Decision No: 2014/512.