First Part; General Seizure in Turkey
I. Concept of Seizure in Turkey
In Article 4 of the Regulation on Judicial and Prevention Searches, seizure is defined as “the process of removing the right to save the bell on an item, even if it does not have consent, for the purpose of preventing a crime or danger, or because it may be evidence of a crime or is subject to confiscation”. Seizure is divided into preventive seizure and judicial seizure. What we are going to examine here is judicial seizure. Seizure is a protection measure. The evidence related to the crime enters the security of the judicial authorities without deterioration and the material truth is reached in the light of these evidence with seizure measure. Seizure is the temporary limitation or removal of the right to save on the goods by taking the goods that may be useful as evidence or confiscated from the person’s possession by the ingenuity of the court and without the consent of the owner.
Seizure is an interference with fundamental rights and freedoms such as right of privacy, immunity of residence, freedom of communication, and the right of property. It is regulated by law, because of it is a protection measure that includes interference with rights and freedoms. According to Article 20 of the Constitution, in order not to violate the right to privacy, seizure can not be carried out unless there is a judge’s decision or a written order of the competent authority in case of deciphering an item that is evidence or subject to confiscation as a result of a search on persons, their belongings or private papers.
II. Conditions of Seizure Measure
The existence of reasonable suspicion is necessary for a seizure decision to be made. Reasonable doubt must necessarily exist as there is a restriction of freedoms. It cannot be arbitrarily decided to seize. The seizure should be decided in accordance with the principles of the rule of law, honest action, inviolability of human dignity, and proportionality. The property of natural or legal persons can be confiscated. The decision of the seizure will be given by the judge in accordance with one or more of the reasons such as national security, public order, prevention of crime, protection of general health and morality. All kinds of assets and documents that are accepted as evidence and that are the subject of the confiscation of goods or earnings can be seized.
III. Seizure Desicion and Seizure Order
In Article 127 of the Code of Criminal Procedure: “where delay is prejudicial, upon the decision of a judge or the public prosecutor, the public prosecutor in cases where the supervisor is unavailable to law enforcement by law enforcement officials with a written order, the process may perform forfeiture.” It has been arranged who can make a decision or order on the seizure measure by including this provision. The judge determine the seizure decision. The decision or order for seizure must be in writing. Seizure without a judge’s decision is submitted to the approval of the incumbent judge within twenty-four hours. According to the Supreme Court, if the possession and transportation of goods is a crime in itself, law enforcement officers can seizure it without the need for a judge’s decision. In the third paragraph of Article 26 of the Child Protection Law; “The Children’s Court or the children’s judge is authorized to make a decision on seizure in respect of children who have been dragged into a crime.”
If it is determined that the value of the goods or assets will serve as a means of proof or be subject to confiscation, the investigating authority should apply for seizure protection measure. However, if it is clear that the investigation will end with a decision not to prosecute, and if the seizured goods will not affect this, a seizure measure will not be decided.
In Article 162 of the Criminal Procedure Code; “If the public prosecutor deems it necessary for an investigation that can only be carried out by the judge, he notifies the magistrate of the place where this procedure will be carried out. The criminal judge of peace decides about the requested action by examining whether it is in accordance with the law and fulfills what is necessary.” As a rule, upon the request of the Public Prosecutor, the magistrate decides to seizure. Article 207 of the Criminal Procedure Code; “The request to present the evidence cannot be rejected due to the late notification of this or the event to be proved.” Seizure of evidence that emerged after the judgment was given may also be requested from the court at the stage of prosecution.
The seizure order is the written order of the public prosecutor in cases where delay is inconvenient, and of the law enforcement chief in cases where the prosecutor cannot be reached. The public prosecutor authorized to seizure is the public prosecutor in charge of the jurisdiction where the measure will be implemented. The case in which delay is inconvenient is stated in article 4 of the Regulation on Forensic and Prevention Searches; It is defined as “the situation where the traces, artifacts, signs and evidence of the crime are lost if no action is taken immediately, or there is no time to take a decision from the judge when the possibility of the suspect’s escaping or not being able to be identified should arise”. The law enforcement chief cannot order search and seizure for residences, workplaces and other closed areas that are not open to the public. The seizure order is submitted to the judge’s approval within 24 hours and the judge announces his decision within 48 hours. The beginning of the approval period is the seizure process.
The items to be seized should not be from the items that are prohibited to be seized. Letters and documents among those who may hesitate to testify, documents containing state secret information, a printing house established as a press business in accordance with the law and its annexes and media tools cannot be seized.
The seizure decision or order must be in writing and justified. The values of the goods or assets that are the subject of the seizure decision or order should be stated clearly and without leaving any room for doubt. In the seizure decision, the name and registration number of the judge who made the seizure decision and the record clerk who wrote the decision, the type and characteristics of the goods subject to the decision, the purpose for which the seizure decision was made, and the date of the decision should be written. The decision must be signed by the judge and the court clerk and sealed with the seal of the court.
IV. Objection to Seizure Measure
In Article 127 of the Criminal Procedure Code; “People whose belongings or other assets in their possession are seized can always ask the judge to make a decision on this matter.” The applicant may be the owner or possessor of the goods.
The decision is made with a written petition to the magistrate’s office, which makes or approves the seizure order. Appeals against judge decisions are open. If the judge gives a decision of rejection upon the request of the person concerned, this decision can be appealed within 7 days. In Article 131 of the Criminal Procedure Code; “If it is understood that the seized belongings of the suspect, the accused or the third parties do not need to be preserved in terms of investigation and prosecution or will not be subject to seizure, the public prosecutor, judge or court decides that they will be returned sua spontane or upon request. Decisions on rejection of the request can be appealed.” The decision of the Public Prosecutor can also be appealed.
V. Termination of Seizure Measure
The seizure measure ends with the return of the goods subject to seizure. The seizure measure ends with the finalization of the verdict at the latest. In the first paragraph of Article 131 of the Criminal Procedure Code; “If it is understood that the seized property belonging to the suspect, the accused or third parties does not need to be kept in terms of investigation and prosecution or will not be subject to seizure, it is decided by the public prosecutor, judge or court to return it sua spontane or upon request.” The public prosecutor, judge or court may decide to end the seizure measure. Even if a verdict is given about the possession or owners of the goods in the return of the seizure, no expenses related to the seizure of the goods are collected from these persons. If any damage occurs while the seized goods are under protection, this damage must also be paid by the state.
With the attainment of the aim desired to be achieved with the seizure, the seizure process has now ended. Another way of ending is the confiscation of the item. With the confiscation of the goods, the property passes to the state. In the confiscation, the right of possession and ownership on behalf of the owner of the goods and legal entities ends, and the seizure process ends. In Article 55 of the Turkish Criminal Law; “The financial benefits obtained by committing the crime or constituting the subject of the crime or provided for the commission of the crime and the economic gains resulting from their evaluation or conversion shall be confiscated. According to the provision of this paragraph, in order for a confiscation decision to be made, the material benefit must not be returned to the victim of the crime.” Confiscation of earnings was regulated by including the provision.
VI. Compensation for Seizure in Turkey
In subparagraph j of the first paragraph of Article 141 of the Criminal Procedure Code; “People whose belongings or other assets are seized even though the conditions are not met during the criminal investigation or prosecution, or the necessary measures are not taken for their protection, or whose belongings or other assets are not used for any purpose or are not returned on time, may claim all kinds of material and moral damages from the State.” According to the provision of this article, a person can claim the damage suffered due to the seizure measure in four cases. The person who has suffered damage has the right to claim compensation in the event that the goods and other assets are seized even though the conditions are not met, the protection and preservation obligation is not fulfilled, the values of the goods or assets are used out of purpose and the values of the goods or assets are not delivered on time.
The application period for compensation is 3 months. This period starts from the date of notification of the finalization of the decision or provisions. The claim for compensation is made by filing a petition with the heavy penal court where the person who has suffered damage resides. Persons in Article 144 of the Criminal Procedure Code cannot claim compensation.
VII. International Seizure
International agreements are made for legal assistance in matters such as the arrest of suspects and suspects, the search and seizure in order to obtain evidence. If the subject of the seizure measure related to an investigation or prosecution carried out by the judicial authorities in Turkey is located in another country, the parties can act in accordance with bilateral or multiple agreements, or if there is no agreement, countries may develop practices according to the principle of reciprocity and international practices. The Republic of Turkey is a party to the European Convention on Mutual Legal Assistance in Criminal Matters, the European Convention on the International Value of Criminal Judgments, and the European Convention on The Transfer of Criminal Proceedings for Cooperation in Criminal Matters.
Law No. 6706 on International Judicial Cooperation in Criminal Matters covers judicial cooperation with foreign states in criminal matters. In Article 2 of Law No. 6706; “In the implementation of this Law; a) Judicial authority: Courts, judgeships and prosecutors’ offices and other authorities that are exceptionally authorized to conduct criminal investigations by law, authorities specified by states in their declarations to international treaties, b) Central Authority: Ministry of Justice, c) International judicial cooperation: judicial cooperation of a state in criminal matters means the transactions carried out by the authorities of another state on behalf of the judicial authorities of another state. provision is included. In Article 3 of the Law; “The duties and powers of the Central Authority are as follows: a) To decide on the acceptance of the judicial cooperation requests of foreign states and the appropriateness of the cooperation requests to be made by the Turkish judicial authorities within the framework of the international agreements to which the party is a party or the principle of reciprocity. b) To decide on the type of judicial cooperation to be implemented and the method to be followed. c) To consent to the use of information and documents requested by the states within the scope of judicial cooperation, to limit their use, to make surety or conditional.” It regulates the importance and duties of the Ministry of Justice. In article 4; “Judicial cooperation demands of foreign states; a) Violation of Turkey’s sovereign rights, national security, public order or other fundamental interests, b) The act subject to the request is a purely military crime, thought crime, political crime or a crime related to a political crime, c) The race, ethnicity of the person subject to the request There are credible grounds that he or she will be subject to an investigation or prosecution or be punished or be subjected to torture or ill-treatment because of his or her origin, religion, nationality, membership of a particular social group or political opinion, ” The refusal of legal aid requests has been regulated. Demands of Turkish judicial authorities in Article 7 of Law No. 6706, requests of foreign judicial authorities in Article 8, and legal assistance through video and audio communication technique in Article 9 are regulated.
Second Part; Qualified Seizure in Turkey
I. Seizure of Immovable, Rights and Claims
In Article 128 of the Criminal Procedure Code; “In cases where there is strong suspicion based on concrete evidence that the crime subject to investigation or prosecution has been committed and obtained from these crimes, it belongs to the suspect or the accused; a) Immovables, b) Land, sea or air transportation vehicles, c) All kinds of accounts in banks or other financial institutions, d) All kinds of rights and receivables from real or legal persons, e) Negotiable documents, f) Partnership shares in the company of which he is a partner. , g) Safe deposit boxes, h) Other assets can be seized.” In order for the seizure measure of immovable, rights and receivables to be implemented, there must be a strong suspicion based on concrete evidence. There must be strong suspicion that the crime has been committed and that the assets values have been obtained from this crime.
The seizure measure of immovable, rights and receivables may be decided if the crimes listed in the second paragraph of Article 128 of the Code of Criminal Procedure are in question. These crimes are; genocide and crimes against humanity, immigrant smuggling and human trafficking, and organ or tissue trade crimes, theft, looting, abuse of trust, fraud, fraudulent bankruptcy, manufacturing and trading of drugs or stimulants, counterfeiting money, establishing an organization for the purpose of committing a crime, bid rigging mixing, collusion, usury, embezzlement, embezzlement, bribery, crimes against the security of the state, crimes against the constitutional order and the functioning of this order, crimes against state secrets and espionage, firearms and knives and other weapons crimes defined in the law, The crime of embezzlement defined in paragraphs three and four of article 22 of the Banks Law, crimes defined in the Anti-Smuggling Law and requiring imprisonment, are crimes defined in articles 68 and 74 of the Law on the Protection of Cultural and Natural Assets.
In the ninth paragraph of Article 128 of the Criminal Procedure Code; “Only the judge can decide on the seizure in accordance with the provisions of this article and the appointment of a trustee pursuant to the tenth paragraph.” It is regulated that only the judge can decide on this measure. There is no exception. The magistrate in the place where the prosecutor conducting the investigation is located is authorized to make this decision.
In the last sentence of the first paragraph of the 128th article of the Criminal Procedure Code, “In order to take a confiscation decision within the scope of this article, the Banking Regulation and Supervision Agency, the Capital Markets Board, the Financial Crimes Investigation Board, the Undersecretariat of Treasury and the Public Oversight, Accounting and Auditing Standards Agency, a report on the value obtained from the crime is received. This report is prepared within three months at the latest. This period may be extended for another two months upon request, when special reasons make it necessary.” It is obligatory to obtain a report before the decision is made on the measure.
In the tenth paragraph of Article 128 of the Criminal Procedure Code; “A trustee may be appointed for the management of these assets, when the administration of immovable, rights and receivables seized pursuant to this article is necessary.” With this article, it is aimed that the seizure to be collected in the future will not be unrequited. Company shares of the suspect or the accused can be seized. However, on the basis of this article, not all the property of the legal entity can be seized.
II. Seizure in Computers, Computer Programs and Their Files
In the first paragraph of Article 134 of the Criminal Procedure Code; “In the investigation carried out for a crime, if there are strong grounds for suspicion based on concrete evidence and there is no opportunity to obtain evidence in any other way, the judge or the public prosecutor in cases where delay is inconvenient, searching the computer and computer programs and computer logs used by the suspect, making copies from the computer records, It is decided to decipher these records and turn them into text.” This clause also seizure of mobile phones, e-mail, computer networks, and removable hardware. There is no restriction on the type of crime related to this seizure measure.
In the second paragraph of Article 134 of the Criminal Procedure Code; “If computers, computer programs and computer logs cannot be accessed because the password cannot be deciphered or hidden information cannot be accessed, or if the process takes a long time, these tools and equipment may be seized so that the solution can be made and necessary copies can be made. If the password is deciphered and necessary copies are made, the seized devices will be returned without delay.” It has been regulated that the seized devices must be returned after the copies have been taken.
In terms of search and copying measures, it is necessary to have a criminal investigation, to have strong suspicion based on concrete evidence, to not have the opportunity to obtain evidence in any other way, and to have a judge’s decision. For the seizure measure, it is necessary that the computer cannot be accessed or the hidden information cannot be accessed because the password cannot be deciphered. The scope of the decision should be well articulated. While applying the measure, electronic evidence at the crime scene should not be damaged. Law enforcement is responsible for ensuring security. The rule is to apply a search measure first and to copy if any evidence is found. In the third paragraph of Article 134 of the Criminal Procedure Code; “During the process of seizing the computer or computer logs, all data in the system is backed up.” provision is included. In addition, in the fourth paragraph of Article 134 of the Criminal Procedure Code; “A copy is made from the backup taken in accordance with the third paragraph and given to the suspect or his attorney, and this matter is recorded in the report and signed.” It was stated that this copy should be recorded in the report and given to the suspect or his representative.
Within the framework of forensic computing, the search process is carried out over the exact copy data obtained from the system. It is determined by taking the hash value whether the forensic copying process is done correctly and whether all the areas in the memory are transferred to the copy correctly. In this way, the objection to any change in the data is prevented.
According to Article 134 of the Criminal Procedure Code, the measure applied can only find an area of application for the crime that is the subject of the measure. If, during the implementation of the measure, evidence of a crime other than the one constituting the application is obtained, the evidence is kept and the case is reported to the public prosecutor’s office in accordance with Article 138 of the Criminal Procedure Code.
Since the copy will be used as evidence, extremely sensitive electronic evidence must be preserved intact. Otherwise, it is possible for electronic evidence to become unusable during the trial process. If it is decided not to prosecute as a result of the investigation or acquittal is given as a result of the trial, all records must be destroyed after the finalization of the decision.
Since there is no separate way of objection for searches and seizures made according to Article 134 of the Criminal Procedure Code, the possibility of appeal against the decisions made only on the application of search, copying and seizure measures in the information system based on Article 267 of the Criminal Procedure Code.
III. Coercive Seizure
In article 248 of the Criminal Procedure Code; “The property, rights and receivables of the fugitive in Turkey may be seized by the decision of the magistrate or court, in proportion to the purpose, in order to enable the fugitive to apply to the public prosecutor or come to the hearing, and a trustee is appointed for his administration when necessary.” A coercive seizure of fugitives was regulated by including the provision. The aim is to ensure that the fugitive participates in the proceedings by being economically difficult. In order for this decision to be made, the suspect or the accused must be in fugitive status. According to the third paragraph of Article 98 of the Criminal Procedure Code, a suspect who does not appear in the investigation cannot be considered fugitive, since the arrest warrant is issued during the prosecution phase. Since the purpose is to enable the accused to attend the hearing, it is not possible to apply this measure during the investigation phase. The seizure order should be lifted when the fugitive is caught or surrendered. It is possible to appeal against this seizure decision.
Coercive seizure can only be applied if the crimes included in the second paragraph of Article 248 of the Criminal Procedure Code are in question. At the request of the Public Prosecutor, the magistrate judge or the trial court may decide to confiscate for the purpose of coercion. There is no exception.
Third Part; Types of Seizure Regulated in Special Laws
I. Seizure Under The Anti-Smuggling Law
In article 9 of the Anti-Smuggling Law; “Search and seizure of any container, package or other transport vehicle and persons suspected of containing smuggled goods, all kinds of weapons, ammunition, explosives and narcotic substances shall be carried out in accordance with the Criminal Procedure Law No. 5271 of 4/12/2004. Customs officers may search for persons suspected of hiding smuggled goods in customs halls and customs gates for customs control purposes. The smuggled goods found as a result of the search are immediately seized. It is forbidden to enter, exit or pass through the gates and roads determined in accordance with the Customs Law, into the customs area from other places. Persons and all kinds of transportation vehicles to be encountered in these places are stopped by authorized officers and their belongings, cargo and clothes and transportation vehicles, if any, are searched. The smuggled goods found as a result of the search are immediately seized.” The aim is to obtain the evidence regarding the crime of smuggling and to enable the execution of the seizure decision. Seizure is carried out in accordance with the Criminal Procedure Code. The legislator has given the duty of search and seizure at customs halls and gates only to customs officers.
In article 10 of the Anti-Smuggling Law; “Vehicles used in committing the crimes defined in this Law are seized according to the provisions of the fourth paragraph of Article 128 of the Code of Criminal Procedure. If it falls within the scope of subparagraph a of the first paragraph of Article 13, is not registered in Turkey, or is reused in the commission of the crime of smuggling while the investigation and prosecution is still ongoing, the seized vehicle is detained by the authorities that made the seizure decision. If the owner delivers the security equal to the value of the vehicle to the customs administration within thirty days from the date of detention, the vehicle is returned to the owner. Otherwise, it will be liquidated immediately without waiting for the result of investigation and prosecution by the liquidation administration.” Seizure of transport vehicles used in committing the crime of smuggling was regulated. The seizure of vehicles used in the commission of smuggling crimes is carried out by annotating the registers where these vehicles are registered.
In the 16th article of the Anti-Smuggling Law; “The goods for which the confiscation sanction can be applied cannot be returned to the owner, since they constitute the subject of the crimes defined in this Law. Except for the smuggled fuel seized on suspicion of smuggling, within six months from the date of seizure, but within one month if the goods are damaged or there is a risk of substantial loss in value or if their preservation creates a serious burden, the judge may initiate a prosecution during the investigation phase by making the necessary determinations. At this stage, a decision of liquidation is made by the court. If a decision is not made within these periods, the goods will be liquidated immediately. The decision of the liquidation was regulated by including the provision.
II. Seizure Under The Law on the Prevention of Laundering Proceeds of Crime
In article 17 of the Law on the Prevention of Laundering Proceeds of Crime; “In cases where there is strong suspicion that the crime of money laundering and financing of terrorism has been committed, the assets can be seized according to the procedure in Article 128 of the Criminal Procedure Code No. 5271. In cases where delay is inconvenient, the Public Prosecutor may also issue a seizure decision. The seizure, which is made without a judge’s decision, is submitted to the approval of the authorized judge within twenty-four hours. The judge decides whether to approve or not within twenty-four hours at the latest. If the judge approves, the report regarding the value specified in the 128th article of the Criminal Procedure Law dated 4/12/2004 and numbered 5271 is received within three months and submitted to the judge’s approval again. If it is not approved or the report is not received within three months, the decision of the Public Prosecutor’s Office shall be null and void.” In order for this measure to be decided, the crime must be money laundering and terrorist financing, and there must be a strong suspicion that this crime has been committed. Unlike the ninth paragraph of Article 128 of the Criminal Procedure Code, the Public Prosecutor has the authority to issue a seizure order in Article 17 of this law. This order must be approved by the judge within 24 hours.
III. Freezing of Assets Under the Prevention of Financing of Terrorism Law
Freezing of assets in subparagraph 3 of article 2 of the Law on the Prevention of Financing of Terrorism; It is defined as “removal or restriction of the power of disposition on the assets in order to prevent the elimination, consumption, conversion, transfer, transfer and assignment of the assets and other dispositional transactions”. In article 12 of the Law on the Prevention of Financing of Terrorism; “The decision to freeze assets and the decision to revoke this decision will have legal consequences with its publication in the Official Gazette. According to the provisions of this Law, the Presidency is responsible for the execution of the decisions to freeze the assets.”
The decision to freeze the assets is an administrative decision, which is usually taken based on information of an intelligence quality, without seeking strong suspicion, and takes place at the stage before the events subject to criminal proceedings. According to Article 5 of the Law on the Prevention of the Financing of Terrorism, the decisions to freeze the assets in our country, which are included in the terrorist list as a member of the United Nations and are in the possession of individuals, institutions or organizations, shall be taken by the Council of Ministers and these decisions published in the Official Gazette shall be implemented without delay. These decisions are notified to the United Nations Security Council by the Ministry of Foreign Affairs.
IV. Seizure Under The Law on Foreigners and International Protection
In the first paragraph of the 1st additional article of the Law on Foreigners and International Protection; “The vehicles used in the commission of the crime of smuggling of immigrants are seized according to the provisions of the fourth paragraph of Article 128 of the Criminal Procedure Law No. 5271 of 4/12/2004.” In the second paragraph of the 1st additional article of the Law on Foreigners and International Protection, extradition in seizure is defined as “According to the first paragraph, the seized vehicle; a) Re-used in committing the same crime while the investigation and prosecution is still going on, b) Not being registered in Turkey, c) Seizing a significant number of immigrants while being transported according to the total number of passengers, ç) Having a special device to facilitate the commission of the crime, in case of one of the conditions, the seized, the vehicle is non-refundable to the owner. In this case, if the owner delivers the security equal to the value of the vehicle to the Ministry of Finance within thirty days from the date of seizure, the vehicle is returned to the owner. Otherwise, it will be liquidated immediately without waiting for the result of an investigation and prosecution by the Ministry of Finance. In case the liquidation is realized through sale, the remaining amount after all the expenses necessary for the maintenance and sale of the vehicle from the proceeds from the sale are met, will be transferred to the escrow account to be processed according to the outcome of the prosecution. formatted. While calculating the value, the motor insurance value in land vehicles; the value that forms the basis for boat and machinery insurance in marine vehicles; In the case of uninsured vehicles, air and railway vehicles, the market value is taken as a basis.
The purpose of the seizure is to reach the evidence and reach the material truth. According to the Constitution and the Code of Criminal Procedure, seizure must be carried out by the decision of a judge or by a written order of the competent authority in cases where delay is inconvenient. Fundamental rights and freedoms should not be violated in the execution of seizure measure. Evidence obtained due to unlawful seizure cannot be used in criminal proceedings. The state’s liability for compensation arises due to the loss of the evidential value of the goods, the decrease in the value of the goods due to failure to take measures, or the loss of the goods. General seizure is a protective measure that can be used in any crime. However, catalog crimes have been determined in the provisions that regulate the seizure of immovable properties, rights and receivables, the appointment of a trustee for the company management, and the seizure for the purpose of coercion, and qualified seizure measures can be applied only in these crimes.
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