No Forensic Search Decision Is Needed in the Search Process of Metruk Buildings
In this short article, the existence of a judicial search warrant is required in the search operations carried out pursuant to Article 116 of the CMK desolate That there is no need for a judicial search decision in the buildings referred to as, and that a decision on a preventive coat of arms is sufficient 22.01.2019 Date 2019/ 235-41The summary text of the Basic Decision No.
Indeed, while the existence of a search warrant is required in Article 116 of the CMK “Searches to be carried out in the dwellings of persons”, and the buildings referred to as metros also do not need a judicial search warrant. In searches of metruk buildings, “public or public place” within the meaning of paragraph 4 (d) of Article 9 of the PVSK A search may be made in accordance with the decision of a preventive search in this place for the purpose of preventing the commission of a crime or danger, as covered by it.
In order to better understand this issue, we need to mention what should be understood from the term “Housing”, which is protected by the legislator;
Housing: They are convenient places for people to stay for permanent or temporary residence and shelter.
Metruk: It means abandoned, dilapidated.
In light of the above definitions, it follows that the legislator includes the concept of “housing” in the cases required for a judicial search decision, while for ““residential” places, a judicial search decision is not needed. Here is the summary of the decision that exactly in the search operations to be carried out in metered buildings there is no need for a judicial search decision, the prevention search is sufficient as follows;
CRIMINAL GENERAL ASSEMBLY OF THE SUPREME COURT
22.01.2019 History
2019/ 235-41 Main Decision
SUMMARY: that the place where the subject of the crime heroin was seized is a residential building cannot be considered as a place of residence that can be searched by means of a “judicial search warrant” or a “written search warrant”, so that checks carried out in such places by law enforcement officers cannot be considered as a search operation in the technical sense provided for in articles 116 et seq. of the CMK, for these reasons, European Human Rights and fundamental rights and freedoms in respect of “Privacy of private life” and “inviolability of housing” guaranteed under Articles 20 and 21 of the Constitution If it is observed that there can be no violation of Article 8 of the Convention entitled “Protection of private life and family life”, since the said structure remains within the scope of “Public or public place” within the meaning of Article 9/4-d of the PVSK, where a search for prevention in order to prevent the commission of a crime or danger can be searched for the purpose of preventing the commission of crime or danger, it is necessary to accept that there is no illegality in its transmission and that the evidence obtained can be based on the judgment.
TEXT OF THE DECISION: The dispute between the Private Chamber and the Prosecutor General's Office of the Supreme Court, which must be resolved by the General Assembly of the Criminal Court, relates to the determination of the lawfulness of the search in relation to the crime of trafficking drugs assigned to the accused.
When the subject of the dispute is considered in the light of these statements;
On 31.10.2014, at 20.58 hours, the KOM Branch Directorate reported that “D.Mahallesi, Asayiş Branch are selling drugs in the ruined building located in the field behind Asayiş Branch”, the officers went to the place in question at 21.30 on the same day, and the place mentioned in the notice was “a single floor with no windows and doors, in a semi-ruined state, without windows and doors. Preventive search of the 1st Magistrate's Court, in which they saw that it was a “metruk building” and entered the building, where they saw the defendant sitting on a cushion in the only available room and witnesses M. O. and S. In accordance with the decision, in the search conducted in the warehouse building, witnesses and witnesses and the accused were seized in the form of a book sheet wrapped in a book sheet (1), and pieces of paper on the side of the mat that were considered to be used for drug packaging;
In accordance with Appendix 5 of the PVSK No. 2559, law enforcement officers assigned to follow up the events in order to more effectively combat drug crimes, went to the said place to investigate the accuracy of the report, where they found that the place was a ruined building, had no windows and doors and was in a semi-dilapidated state, from their professional experience on seeing the defendant sitting on a cushion in the room lit by candles when the officers entered the building, and witnesses from their professional experience on seeing BC and S. That the right and necessity to intervene in the named persons based on the reasonable reason arising from the impression they made of the situation in which they were in arose, that no criminal element was found in the search carried out on the witnesses and the accused in the search carried out on the accused, and during the checks carried out in the room, the persons were not packed with the subject matter under the cushion where the persons appeared to be sitting It is understood that pieces of paper deemed to have been used have been seized.
Although it is stated to the Private Chamber that the drug subject to the crime was seized in the “building”, it is unlawful to conduct a search in this place without obtaining a “judicial search warrant” or a “written search warrant” in accordance with Articles 116, 117 and 119 of the CMK, and that the drug substance that constitutes the material subject and evidence of the crime cannot be based on the determination of the drug substance that constitutes the material subject and evidence of the crime, If it was decided to overturn the sentence with a bet because acquittal must be made against the accused; as can be seen from the statements of witnesses M. and O. and the defendant, both the report and the contents of the incident report and the contents of the case report, as can be seen from the statements of witnesses M. and O. the place where the subject heroin was seized cannot be classified within the scope of private and financially determined places where family life develops, such as where there are no windows and doors and are in a semi-dilapidated state, where the heroin subject is seized for permanent or temporary residence and shelter for the purpose of permanent or temporary residence and the place where the subject of crime heroin is seized with sufficient witnesses and the accused and in the face of the realization that there is no will and determination that there is no continuing connection, that it is separated from the outside world; the structure in question” Because it is an empty building in the sense of abandoned, abandoned, unused”, it cannot be considered as a residential place that can be searched by a “judicial search warrant” or a “written search warrant”, and therefore checks carried out by law enforcement officers in such places cannot be considered as a search operation in the technical sense provided for in articles 116 et seq of the CMK, Fundamental rights and freedoms in relation to “Privacy of private life” and “inviolability of housing” guaranteed under Articles 20 and 21 of the Constitution: European Human Rights On the other hand, where there will be no violation of Article 8 of the Convention entitled “Protection of private life and family life”, on the other hand, the structure in question, which is considered as an urban building, falls within the meaning of “public or public place” within the meaning of Article 9 (4) (d) of the PVSK, seeking prevention in this place for the purpose of preventing the commission of crime or danger It is necessary to accept that, in accordance with the judgment, a search may be made in accordance with the decision, that there is no unlawful seizure of the heroin subject to the crime and that the evidence obtained may be based on the judgment. On this basis, a decision should be made on the acceptance of the appeal of the Prosecutor General of the Republic of the Supreme Court.