Decisions of the Criminal General Assembly of the Supreme Court of the Supreme Court on the Lawfulness of the Forensic Search
In this article, we will briefly consider the current decisions of the Supreme Court of Justice that have been taken in recent times regarding judicial search within the framework of the Code of Criminal Procedure. What are the criteria for whether a search is legal, what needs to be paid attention to, we will briefly touch on these issues and add the decisions of the Supreme Court, which are also made at the end of our article.
Search decisionIt is regulated by Article 116 of the Code of Criminal Procedure. In this sense search decision search of the suspect's or accused's superior, property, residence, place of work or other places belonging to him if there is reasonable suspicion that he may be caught or evidence of a crime can be obtained expresses.
Searching cannot be the subject of searching for things that are seen or left exposed, since it is an activity carried out to reveal what is hidden. For example, the seizure of drugs or a gun in the back seat of a vehicle stopped by a police officer due to being used in a manner that poses a danger to pedestrians or other vehicles is not considered a search.
The search is carried out on people's residences, workplaces, vehicles, other places, superiors, belongings, special papers, computers and computer programs they use and their logs. The search on the person should not reach the size of a physical examination. Because the physical examination and the search for a body sample are subject to different provisions, and looking at the genitals or anus area is considered an internal physical examination. Caring for body cavities such as the mouth, armpits other than these areas, as well as body areas such as feet, arms, and hair, without the use of medical tools or methods, is subject to the search provisions.
In order to apply for a judicial search measure, the following three prerequisites must be found together:
· The presence of an inconvenience or danger in the delay,
· Ostensibly justified,
· Moderation.
As a rule, in cases where it is not possible to delay the decision of the judge, the search can be carried out by written order of the public prosecutor and the public prosecutor in cases where the public prosecutor cannot be reached. However, it is possible to conduct searches at the residence, workplace and closed areas that are not open to the public only in cases where it is objectionable to the decision of the judge or its delay by a written order of the public prosecutor.
The search process is usually carried out on the basis of a judge's decision, and when the conditions arise, it can also be searched by written order of the public prosecutor or the law enforcement officer. However, in some cases, a search may be made even if there is no court order and a written search warrant. These circumstances may be due to the nature of the incident or the search authority granted by the law, as well as the reason why it is not possible to obtain a search warrant. In these cases, law enforcement officers are in charge of conducting searches, obtaining evidence and apprehending perpetrators without waiting for a search warrant or warrant.
Finally, after mentioning the regulations made in the CMK regarding the search, we will proceed to the decisions of the Supreme Court regarding the search;
Search for Suspect or Accused
Article 116 - (1) If there is reasonable suspicion that he may be apprehended or evidence of a crime may be obtained, the suspect or accused's head, property, residence, workplace or other places belonging to him may be searched.
Search Related to Other People
Article 117 — (1) In order to apprehend the suspect or accused or to obtain evidence of a crime, the property, residence, workplace or other places belonging to him may be searched.
(2) In such cases, the conduct of the search depends on the existence of events that allow it to be considered that the person sought or evidence of the crime is located in the indicated places.
(3) This limitation does not apply to the places where the suspect or accused is located, as well as the places where he entered while being monitored.
Search to do at night
Article 118 — (1) No searches of dwellings, workplaces or other enclosed places may be made at night.
(2) The first paragraph shall not apply in the case of a person who has been caught or detained or detained and who has escaped with a view to reapprehending a prisoner or a prisoner or convicted person with a view to reapprehending him.
Search Decision
Article 119 — (1) (Modified: 25/5/2005 — 5353/15 para.) In cases where the decision of the judge or its delay is objectionable, the public prosecutor or the public prosecutor cannot be reached, law enforcement officers may search the law enforcement officers by written order of the law enforcement officer. However, a search in the dwelling, workplace and enclosed spaces that are not open to the public can be carried out by written order of the public prosecutor in cases where it is inconvenient to judge's decision or delay. The results of the search conducted by written order of the law enforcement officer are immediately notified to the Public Prosecutor's Office.
(2) Search decision or order;
a) The verb that constitutes the cause of the search,
b) the person to be searched, the address or object of the dwelling or other place where the search will be made,
c) The period of time during which the decision or order will be effective, is clearly indicated.
(3) The explicit identities of those who performed the transaction are entered into the search record. (Property second sentence: 25/5/2005 — 5353/15 md.)
(4) Two persons from the elders committee or neighbors shall be retained in order to search residential, business or other enclosed places without the public prosecutor's presence.
(5) (Modified: 25/7/2018-7145/14 ms.) Searches in military quarters are carried out by judicial law enforcement officers with the participation of military authorities under the supervision of the public prosecutor. Cases that are objectionable to delay can also be searched by judicial law enforcement officers with the participation of military authorities by written order of the public prosecutor.
They will be able to be present in the search
Article 120 — (1) The owner of the places to be searched or the object may be present for the search; if he is not found, his representative or his or her representative or his or her representative or his or her representative having the power of discernment, or a person or neighbour sitting with him shall be present.
(2) In the cases referred to in the first paragraph of Article 117, the number and, if not found, the person to be called shall be informed of the purpose of the call before the search begins.
(3) The person's lawyer cannot be prevented from being present on the call.
Document to be issued at the end of the search
Article 121 — (1) At the request of the person who was searched at the end of the search, the search was carried out in accordance with Articles 116 and 117 and a document indicating the nature of the act under investigation or prosecution in the case referred to in Article 116 and a notebook containing a list of the goods seized or protected at the request of the object under investigation or prosecution, and if nothing justifies the suspicion has been obtained a document is issued indicating this.
(2) The documents referred to in the first paragraph shall also include the views and claims of the person who has been searched regarding the ownership of the seized item.
(3) A complete record of the protected or confiscated item is made, and this item is sealed with an official seal or a mark is affixed.
Authorization to examine documents or papers
Article 122 — (1) The authority to examine the documents or papers of the person against whom the search has been carried out rests with the public prosecutor and the judge.
(2) The bell or representative of documents and papers may also put his own seal or sign. In the future, when it is decided to remove the seal and examine the papers, the bell or its representative or guardian or deputy is summoned to be ready for this action; if the call is not complied with, the necessary action will be taken.
(3) Documents or papers which, as a result of the examination, are not found to be related to the crime, shall be returned to the interested party.
CRIMINAL GENERAL ASSEMBLY OF THE SUPREME COURT
(dated 16.05.2019 and numbered 431-436)
SUMMARY: In order to be able to search the safe in the outbuilding, which is a closed area, located in the place operated as an open parking lot, it is necessary to obtain a written order from the judge or the public prosecutor in accordance with articles 116 et seq of the CMK, but there is no such search decision or written search warrant within the scope of the file, if requested by the officers, the subject of the crime is subject to the crime. the opening of the safe containing the drugs by the defendant C., a decision from the judge or a written search warrant from the public prosecutor for the search process to be carried out Since it is understood that it will not eliminate the obligation to take it and this transaction will not give legal force, it is based on the provision in accordance with Article 38/6 of the Constitution and articles 206/2-a, 217/2 and 230/1-b of the CMK, since the drugs subject to crime seized in the vault are evidence obtained unlawfully It is necessary to accept that it cannot be.
CRIMINAL GENERAL ASSEMBLY OF THE SUPREME COURT
(CGK, dated 02.05.2019 and numbered 465-369)
SUMMARY: As can be seen both from the contents of the incident report and from the investigative witnesses D.'s statement that “A hard object was suspected during the manual inspection of the vehicle in the front part where the driver's quarters are located, in the lower part of the steering wheel, in an area that would not be noticeable at first glance...” from the point of view that the search conducted under the steering wheel without visible places cannot be considered as a check within the scope of article 4/A of the PVSK, the subject of the crime is drugs for the search to be carried out in the parts of the vehicles that are not visible from the outside of the place of their criminal record until the moment of seizure of the items, the obtaining of a written search warrant from the judge or the public prosecutor in accordance with Articles 116 et seq of the CMK or a written search warrant from the Public Prosecutor pursuant to Article 9 of the DAPVSK It must be recognized that it is necessary.
CRIMINAL GENERAL ASSEMBLY OF THE SUPREME COURT
(CGK, dated 05.03.2019 and numbered 910-154)
SUMMARY: The search process carried out in the sports bag, which the defendant O. said belonged to him and hung on the shoulder of the other defendant Z., which was the object of the aforementioned persons, could not be considered as a survey and control within the scope of article 4/A of the PVSK, and there is no question of an offense until the moment of seizure of the drugs subject to the crime, and the investigation on them decision of the judge in accordance with Articles 116 et seq of the CMK for the search to be carried out in the suitcases or bags of persons checked in their vehicles or in accordance with Articles 116 et seq., or the Republic It must be recognized that a written search warrant from the prosecutor or a decision on a preventive search, duly taken in accordance with Article 9 of the PVSK, is necessary.
CRIMINAL GENERAL ASSEMBLY OF THE SUPREME COURT
(CGK, dated 06.12.2018 and numbered 851-619)
SUMMARY: The fact that the consent given to the search for the purpose of the seizure of the criminal drug substances is not valid and there is no legal equivalent, the fact that the witness in the position of a whistleblower who is not related to the prosecution and search process consents to search the residence of the witness in the position of a whistleblower, does not mean that the consent may be searched on them and on the property of the defendants present in the dwelling. In this context, the consent is the obligation to obtain a written search warrant from the judge or a written search warrant from the public prosecutor for the search process to be carried out for the search process to be carried out in respect of the persons found therein It is also clear that it will not eliminate it and will not give legal force to these operations carried out. Therefore, it is necessary to accept that a search warrant or a written search warrant issued in accordance with articles 116-119 of the CMK must be investigated in order to be searched at the place of residence of the witness and the defendants present there.
CRIMINAL GENERAL ASSEMBLY OF THE SUPREME COURT
(CGK, dated 09.10.2018 and numbered 701-415)
SUMMARY: In order to give legal validity to the search procedure, law enforcement officers who knew that the vehicle could not be searched at the place where the vehicle was first stopped, took the vehicle before the Regional Traffic Control District Office, where the search carried out within the scope of the prevention search decision issued by the A. Magistrate Judge cannot be considered a legally valid search operation, therefore, the search process is dangerous and not according to a previously taken and general prevention search decision applicable to persons who are not suspected of crime, and not according to the decision of a preventive search of a general nature, which is intended to prevent crime and not under suspicion of crime It must be recognized that the judicial search decision or written search warrant to be made pursuant to articles 116 et seq. of the CMK, which contains provisions for obtaining evidence, must be made in accordance with articles 116 et seq.
CRIMINAL GENERAL ASSEMBLY OF THE SUPREME COURT
(CGK, dated 25.09.2018 and numbered 569-376)
SUMMARY: Officers who do not encounter any element of crime during their initial inspection and who have completed their preventive actions within the scope of their competence and release the accused must intervene again at the stage when there is no reasonable reason to call the accused back to their side and reach the evidence of the crime as a result of a detailed search of the lining of the coat and seize the evidence of the crime arbitrary and unreasonable acceptance of the contrary, that a preventive measure carried out within the meaning of Article 4/A of the PVSK cannot be considered a poll in other words It must be recognized that such an action will give rise to practices and result in a violation of fundamental rights and freedoms, can only be carried out on the basis of a judicial search warrant or a written search warrant issued in accordance with Articles 116 et seq of the CMK.
CRIMINAL GENERAL ASSEMBLY OF THE SUPREME COURT
(CGK, dated 07.02.2017 and numbered 1054-56)
SUMMARY: In the incident in which the defendant, who had a black bag in his hands on the street during a patrol task carried out by law enforcement officers, was stopped on suspicion, and when the contents of the bag were checked, it was found that there were 230 packs of cigarettes in 5 separate brands; he faced a crime in accordance with Appendix 4 of PVSK No. 2559, regardless of the branch of service, place and time during professional patrol duties performed by law enforcement officers who are charged and authorized to seize, prevent, detect and detain the accused and evidence of crime, Based on their experience and the impression they make of the situation in which they are in it; they stop the defendant for this reasonable reason resulting from suspicion of the defendant's conduct, and that the sight of a bag in the hands of the defendant increases the suspicion of the existence of a crime in progress, within the scope of the measures to be taken on the basis of the authority granted by article 4/A of the PVSK upon this sufficient suspicion that arises in which, when the bag in the hands of the defendant was checked, the cigarettes subject to the crime were seized, in which the defendant was arrested on suspicion of committing the crime of possession of contraband and unbranded cigarettes, in this case In other words, a “criminal offense” as defined in Article 2 (j) of the CMK and Article 4 of the Judicial and Preventive Searches Ordinance exists and is a crime that is being committed for the first time without prior notification or intelligence information about the accused or crime during the patrol duties performed by the officers.” on the basis of the authority granted by Article 90/4 of the CMK, Articles 13/1-A and Appendix 6 of the Ilepvsk due to the situation, immediately taking the necessary measures to prevent the loss of evidence of the crime and placing the cigarettes in custody then, in accordance with the provisions of paragraph (f) of Article 8 of the Judicial and Preventive Searches Regulation, in accordance with the provisions of Article 8 of the Judicial and Preventive Searches Regulation, in accordance with the provisions of Article 8 of the Judicial and Preventive Searches Regulation, in accordance with the provisions of Article 8 of the Judicial and Preventive Searches Regulation, in accordance with the provisions of Article 8 of the Ordinance on Judicial and Preventive Searches, in accordance with the provisions of Article 8 of the Judicial and Preventive Searches Regulation are initiated in accordance with the measures taken by him. a statement that there is no need for a decision or a decision, and therefore evidence of a crime and that it is lawful and unlawful to seize and store the cigarettes that constitute the subject of the crime Since it is understood that it cannot be done, there is no success in the decision to break the individual.
CRIMINAL GENERAL ASSEMBLY OF THE SUPREME COURT
(CGK, dated 31.01.2017 and numbered 70-37)
SUMMARY: In accordance with Appendix 5 of the PVSK No. 2559, the trust team tasked with following up incidents in order to more effectively combat drug crimes, when they go to the street where drugs are alleged to have been sold to investigate the accuracy of the intelligence information, based on their professional experience and the impression they are in; where they suspect the defendant's condition because of their conduct, and when they approach him for this reasonable reason, the defendant's attempt to flee further the suspicion of the existence of a crime in progress on the occurrence of sufficient suspicion that the drug substance in the form of 6 packages can be seen and retained by the defendant, upon the realization that the seized defendant has a napkin in his right hand and is holding it tightly, upon opening his hand, that the drug substance in the form of 6 packages is visible and stored, and that the accused may have a weapon or other object that poses a danger to the defendant, on the basis of Article 4/A of the EPVSK Within the framework of the measures to be taken on the basis of the authority given by the authority of the person, when the check is carried out in the form of a manual survey without removing the clothes, another 5 packets of the drug are handled where the accused was caught together with the drug substances that were the subject of the crime and the evidence, in which the “criminal offence” as defined in Article 2 (j) of the CCM and Article 4 of the Regulation on Forensic and Preventive Searches exists, without prior notification or information about the accused, on the basis of intelligence information of a general nature, without prior notification or information about the accused to the authority granted by Article 90/4 of the CMK and Articles 13/1-A and Appendix 6 of the PVSK due to the fact that the officers conducting on-the-spot investigations are faced with the state of being “guilty” in other words of a crime in progress. Article 8 of the Regulation on Forensic and Preventive Searches, which, on the basis of which, after taking the necessary measures to prevent the loss of criminal evidence, immediately taking the necessary measures to prevent the loss of criminal evidence and the detention of the drugs, he informed the public prosecutor about the concrete incident with the measures he applied, and in accordance with the orders received, article 8 of the Regulation on Forensic and Preventive Searches, which is also descriptive of Appendix 6 of the PVSK In accordance with the regulation in subsection (f) of the Criminal Code, there is no need to obtain a search warrant or a decision in the case of an offense, and therefore the evidence and subject of the crime are to deal with the drug substances that constitute the subject matter of the crime. Since it is understood that the transfer and detention is in accordance with the law and that there can be no mention of unlawful evidence, the decision to quash the ÖzelDaire is not valid.
CRIMINAL GENERAL ASSEMBLY OF THE SUPREME COURT
(CGK, dated 21.02.2017 and numbered 360-78)
SUMMARY: During a patrol mission on a street known for the sale of drugs by law enforcement officers, when the accused and other persons who saw the officers suddenly stood up and started to disturb the environment by taking halos on the street, the officers who suspected this situation went to the side of the accused and the accompanying group. when conducting top surveys of persons after being found; in the sock in the pocket of the coat of the accused; in the event of the seizure of a total of 26 packages of narcotic substances, with an offense under Appendix 4 of the PVSK when confronted by the officers who are in charge of seizing the crime and identifying and storing the evidence, regardless of the branch of service, the accused and the persons next to him, who have caused a disturbance to the environment on the street known for the sale of drugs during their patrol duty, and the persons next to him who suddenly stand up when they see themselves, Based on their experience and the impression they make of the situation in which they are in, the weapon on the accused and those present with whom they suspect the situation of the accused and other persons within the scope of the measures to be taken on the basis of the authority granted by Article 4/A of the PVSK upon the occurrence of sufficient suspicion that they may be in possession of other dangerous goods, in the form of manual inspection without removing their clothes, in which the accused persons are seized with the intention of selling drugs with the intention of selling drugs to the defendant's contact where he was arrested on suspicion of committing a crime of possession of substances, as defined in Article 2 (j) of the CMK and Article 4 of the Regulation on Judicial and Preventive Searches” On the basis of the authority granted by Article 90/4 of the CMK and Articles 13/1-A and Appendix 6 of the PVSK due to the fact that officers performing patrol duties without any prior intelligence information or notification have encountered a crime in progress, in other words “criminal” status, it is immediately necessary to ensure that criminal evidence is not lost, based on the authority granted by Article 90/4 of the CMK and Articles 13/1-A and Appendix 6 of the PVSK investigation in accordance with the subsequent orders, in accordance with the orders received, in which he informed the public prosecutor about the concrete incident, after taking the measures and keeping the drugs in custody. also in accordance with the regulation of Article 8 (f) of the Regulation on Forensic and Preventive Searches, which also describes Appendix 6 of the PVSK, when the proceedings are commenced; in the case of a criminal offense, there is also no need to obtain a search warrant or a decision, therefore it is lawful to seize and retain the narcotic substances that constitute the subject of the crime and the law Since it is understood that there can be no mention of contrary evidence, there is no success in the decision to break the Private Circle.
CRIMINAL GENERAL ASSEMBLY OF THE SUPREME COURT
(CGK, dated 21.02.2017 and No. 763-80)
SUMMARY: In accordance with Appendix 5 of the PVSK, the officers of the Narcotic Crimes Bureau tasked with following up the incidents related to these crimes in order to more effectively combat drug crimes, according to their professional experience and the impression obtained from the situation in which they were found; the situation of the accused seen on the avenue that drugs were being sold in the intelligence information, according to their professional experience and the impression obtained from the situation in which they were found; to the existence of a crime in progress if the name of the accused is consistent with the intelligence information when the identity information is detected for this reasonable reason. that, within the framework of the measures to be taken on the basis of the authority granted by Article 4/A of the PVSK upon the occurrence of sufficient suspicion that the accused may be in possession of a weapon or other article posing a danger to him, where there is sufficient suspicion that the accused may be in possession of a weapon or other object posing a danger to him, the seizure of the criminal drug substances in the form of a manual inspection of the defendant is carried out, Forensic and Preventive Searches in which the defendant was arrested on suspicion of having committed the crime of possession of drugs for the purpose of selling the subject, in this case under Article 2 (j) of the CMK Based on the authority granted by Article 90/4 of the CMK and Articles 13/1-A of the PVSK and Articles 13/1-A and Appendix 6 of the CMK due to the fact that the “extrajudicial” state, which is defined in Article 4 of its Regulation, the “extrajudicial” state of the Criminal Code exists, which is not based on concrete indications and does not contain the explicit identity information of the accused, since the officers who investigate at the scene of the crime in question are “extrajudicial” by taking the necessary measures immediately to prevent the loss of evidence of the crime and after storing the drugs, about the concrete incident with the measures it implements According to the regulation in clause 8 (f) of the Code on Forensic and Preventive Searches, which, in accordance with the provisions of Article 8 (f) of the Code on Forensic and Preventive Searches, which in the event of a criminal conviction also does not need to be issued a search warrant or a decision, in the case of a criminal conviction, the remaining abstract intelligence information obtained, in which it is not necessary to obtain a search warrant or a decision, which provides information to the public prosecutor. without reasonable doubt based on concrete facts as to the nature of the nature of the investigation carried out by law enforcement on the basis of this information, therefore, the senior interrogation of a defendant who is not under reasonable suspicion of a crime, which would require a judicial search warrant, beyond the “extrajudicial” provisions that do not require a decision to be made, covering the scene and time period, the purpose of which is to prevent the commission of a crime and, as in the concrete case, is prohibited to possess and transport drugs, including drugs. where the seizure of the items is based on the decision to seek prevention, which is therefore evidence of the crime and it is lawful to seize and retain the narcotic substances that constitute the subject of the crime Since it is understood that there is and there can be no mention of unlawful evidence, there is no success in the decision to dissolve the Private Chamber.