LEGAL DEFINITION OF THE OFFENSE
The offense of unlawful search is regulated under Article 120 of the Turkish Penal Code (TCK) under the heading “Crimes Against Liberty.” The relevant legal provision states:
TCK Article 120 – (1): A public official who unlawfully searches a person’s body or belongings shall be punished with imprisonment from three months to one year.
Elements of the Offense
When evaluated together with its objective and subjective elements, the crime of unlawful search has the following key components:
1.Mental Element: The crime can only be committed intentionally; it cannot legally be committed by negligence. For the crime to be established, the public official must be aware that they are acting without authority or beyond their limits, yet still searches the victim’s body or belongings.
2.Perpetrator: Under Article 120 of the Turkish Penal Code (TCK), the perpetrator of the crime is a public official who unlawfully searches a person’s body or belongings. The crime can only be committed by a public official and is considered a specific offense.
3.Victim: In this crime, the victim is everyone in society.
4.Act (Conduct Element): According to Article 120 of the TCK, the act element is the unlawful search of a person’s body or belongings by a public official. For example, if a public official unlawfully searches someone’s pockets or bag, the offense is constituted.
5.Legal Value Protected: The crime of unlawful search is regulated under “Crimes Against Liberty,” and the legal value protected by this crime is the individual’s freedom and inviolability.
What Is the Element of Illegality?
The search procedure is a judicial or administrative activity whose limits are defined by law and can only be carried out by authorized public officials. In terms of criminal law, searches are classified under two categories: judicial searches and preventive searches. The search procedure can be conducted by law enforcement officers, police, coast guard, and customs enforcement personnel.
For a search to be lawful, it must be carried out under certain conditions. Otherwise, the procedure will be considered unlawful, giving rise to the offense of unlawful search. Illegality arises in three main situations:
1-The search is conducted by a public official who is not authorized.
2-The search is conducted without a search warrant or exceeds the scope of an existing warrant.
3-Procedural rules that must be followed during the search are not observed.
COMMISSION OF THE OFFENSE OF UNLAWFUL SEARCH TOGETHER WITH OTHER CRIMES
The offense of unlawful search regulated under Article 120 of the Turkish Penal Code (TCK) can be committed together with other types of crimes. This situation may arise, for example, if the victim’s freedom of movement is restricted for a period exceeding the duration of the unlawful search, constituting deprivation of liberty, or if force is used against the victim during the unlawful search, constituting an act of coercion.
If the perpetrator’s actions also result in the commission of the offense of abuse of office, the perpetrator will still be punished only for the unlawful search. Indeed, the offense of abuse of office is a general offense applicable to public officials. Therefore, the perpetrator will be penalized solely for the specific offense of unlawful search.
COMPLAINT PERIOD, STATUTE OF LIMITATIONS, AND COMPETENT COURT
The offense regulated under Article 120 of the Turkish Penal Code (TCK) is not subject to a complaint, and the investigation is conducted ex officio by the Public Prosecutor’s Office. Although there is no complaint period for investigating the offense, the statute of limitations for the prosecution is eight years. The competent court is the Criminal Court of First Instance.
JUDICIAL FINES AND DECISION TO POSTPONE THE ANNOUNCEMENT OF THE VERDICT
According to Article 120 of the Turkish Penal Code (TCK), a public official who unlawfully searches a person’s body or belongings shall be sentenced to imprisonment from three months to one year. Considering the lower and upper limits of the penalty, it is possible to convert the prison sentence into a judicial fine and to decide on postponing the announcement of the verdict.
RELEVANT CASE LAW
“…In the appeal review regarding the conviction of the defendant … for the crime of unlawful search; considering that there was no reasonable suspicion regarding the offenses of carrying an unlicensed firearm and possessing narcotic substances, which were cited as the basis for the search, and that there was no duly issued judicial search warrant, it has been established that the defendant, a law enforcement officer, committed the unlawful search by searching the complainant while knowing, or being expected to know, that the instruction given to him was unlawful. However, a written acquittal was issued based on a rationale that does not align with the case file. This is contrary to the law, and since the complainant’s counsel’s appeal was deemed justified in this respect, the judgment was REVERSED for this reason pursuant to Article 321 of the CMUK, to be applied under Article 8/1 of Law No. 5320, with a unanimous decision on 02.10.2018…” (Court of Cassation, 8th Criminal Chamber, 2016/3496 E., 2018/10186 K., 02.10.2018)
“…Regarding the defendant, a police officer, it was established that although he knew the complainant had previously engaged in cigarette smuggling and had been investigated for it, and despite being required to report any new tip-off to his law enforcement superior and act according to their instructions, he stopped the complainant’s vehicle he encountered on the road, opened the trunk without any apparent flagrante delicto situation, and took 11 cartons of contraband cigarettes. He did not report this to the police authority he worked for and later, after the matter reached the police, handed over the 11 cartons of cigarettes he had taken. The defendant conducted a search on the complainant’s vehicle without a court-issued search warrant, without permission from the Public Prosecutor, and without an order from his superior, and knowing by virtue of his profession that the cigarettes constituted a crime. By failing to report this to the competent authorities, he committed the offense under Article 279/2 of the Turkish Penal Code for a public officer’s failure to report a known crime. Despite these findings, the court acquitted him based on written justifications that were not appropriate. This is contrary to the law, and since the Public Prosecutor’s appeal was deemed justified, the judgment was REVERSED for these reasons pursuant to Article 321 of the CMUK, as applied under Article 8/1 of Law No. 5320…” (Court of Cassation, 8th Criminal Chamber, 2019/15659 E., 2021/15838 K., 10.06.2021)
“…Regarding the defendant … and the offense of unlawful search, pursuant to Articles 120/1, 43/1, and 62/1 of the Turkish Penal Code (TPC) No. 5237, he was sentenced to 3 months and 3 days of imprisonment, and the Edirne 4th Criminal Court of First Instance’s decision dated 09/05/2017, case No. 20116/314, decision No. 2017/287, concerning the deferment of the announcement of the verdict under Article 231 of the Criminal Procedure Code (CPC) No. 5271, was appealed by the defendant. The Edirne 2nd High Criminal Court rejected this appeal on 17/07/2017, case No. 2017/821. Subsequently, the Ministry of Justice requested the annulment of this decision for the benefit of the law, and the case file was sent to our Chamber by the Office of the Chief Public Prosecutor of the Court of Cassation with the request letter dated 12/02/2018, No. 11248.
The request letter states: “According to the case file, considering the provision of Article 231/6 of Law No. 5271, which stipulates ‘If the defendant does not accept, the decision to defer the announcement of the verdict cannot be made,’ and the statement made by the defendant during the instruction hearing on 30/01/2017, in which he said, ‘I do not want the decision to defer the announcement of the verdict,’ it is clear that the deferment of the verdict cannot be applied to the defendant. Therefore, rejecting the appeal in writing instead of accepting it is not legally appropriate.”
Legal Assessment: For the application of the “deferment of the announcement of the verdict” institution regulated under Article 231 of the CPC No. 5271, the following objective conditions must first be met:
- The imposed sentence in the conviction must be imprisonment of two years or less or a judicial fine.
- The offense must not be among the crimes listed in paragraph 14 of Article 231 of the CPC.
- The defendant must not have been previously convicted of an intentional crime.
- The defendant must not have objected to the deferment of the verdict.
- The damage caused to the victim or public by the crime must have been remedied, either by full restitution, restoration to the previous state, or complete compensation.
Along with the fulfillment of these objective conditions, the deferment may also be applied if the court subjectively concludes, based on the defendant’s personality traits and behavior during the hearing, that the defendant is unlikely to reoffend.
In the present case, the defendant did not accept the application of Article 231 of the CPC during the instruction hearing on 30/01/2017. According to Article 231/6 of the CPC, “If the defendant does not accept, the decision to defer the announcement of the verdict cannot be made.” Therefore, rejecting the appeal instead of accepting it for the defendant is contrary to law.
Conclusion and Decision: For the reasons explained above, the opinion expressed in the notification prepared by the Office of the Chief Public Prosecutor of the Court of Cassation is deemed correct. Accordingly:
- The decision of the Edirne 2nd High Criminal Court dated 17/07/2017, case No. 2017/821, concerning the defendant … for the offense of unlawful search, is REVERSED pursuant to Article 309 of the CPC No. 5271.
- Subsequent proceedings shall be completed locally in accordance with paragraph 4-b of the same Article, and the file shall be TRANSMITTED to the Office of the Chief Public Prosecutor of the Court of Cassation for submission to the Ministry of Justice.
Decision was made unanimously on 06/11/2018…” (Court of Cassation, 18th Criminal Chamber, 2018/2163 E., 2018/14454 K., 06.11.2018)
B. Assessment Regarding the Concrete Dispute
According to the indictment No. 800-40 dated 06/02/2014 by the Public Prosecutor’s Office; the defendants …, …, …, …, … and …, who were serving at the Provincial Police Department, prepared and signed a document titled “Incident, Seizure, Custody, and Weighing Report” dated 01/12/2013, indicating that they had apprehended the out-of-scope defendant Subaşı with a cannabis-loaded vehicle in … province, although in reality they had intercepted the vehicle in … province. Additionally, the defendants …, … of the Provincial Police Department also signed the document despite being aware of the truth from the beginning. Based on these facts, a public lawsuit was filed requesting that the defendants be punished for forgery of official documents by a public officer pursuant to Articles 37, 204/2, and 53 of the Turkish Penal Code (TPC).
As a result of the trial conducted by the 2nd High Criminal Court, on 03/11/2014, case No. 45-184, the defendants were sentenced to 2 years and 6 months of imprisonment and subjected to deprivation of certain rights under Articles 37, 204/2, 62, and 53 of the TPC. In the court’s reasoned decision, also dated 03/11/2014, regarding the punishment for forgery of official documents by a public officer, the allegations, defendants’ defenses, and evidence were all taken into account. Under the heading “Reasoning and Conviction,” the court stated:
“In the concrete case, where the above-mentioned evidence and applicable legal provisions were jointly evaluated, it was determined that the defendants Veysel Subaşı, …, Ferhat …, Dursun …, and Basri Batmaz were incidentally found to have engaged in cannabis trafficking based on intercepted communications obtained during the investigation file No. 2013/8285 of the Public Prosecutor’s Office. This was reported to Deputy Commissioner … of the Anti-Smuggling and Organized Crime Branch (KOM), and the temporary acting head of the Anti-Terror Branch …, was informed and approved the operation without notifying the competent Public Prosecutor, who is the legally authorized authority. The defendants then followed the vehicle to …, and after requesting a second team to prevent losing track of the suspect, they intercepted the vehicle with the cannabis substance along with defendant Subaşı. Subsequently, they transported the substance to … and falsified the incident report, seizure, custody, and weighing documents as if the apprehension had occurred at the Alpet petrol station area on the … road on 01/12/2013.
Although the apprehension actually took place in … province, the defendants, without a proper search warrant and outside their legal authority, engaged in an unlawful search as a team. Their claims that the apprehension was conducted at the entrance to … province at the Kapıçam location and that the late-night operation was performed based on the instructions of the prosecutor, while also not informing the duty public prosecutor, were assessed as self-serving statements aimed at evading liability. Tracking a vehicle suspected of transporting drugs by experienced KOM staff and stopping it without confirming the presence of illegal substances, transporting it across provincial borders, and searching it there is not consistent with the normal course of events. The defendants acted to falsely claim success in an operation that did not occur in … province and to obtain the statutory reward for police officers after the seizure. Considering their statements that they apprehended the defendants in … province, it was concluded that the defendants committed forgery of official documents and unlawful search, thereby pursuing personal gain.
The temporary acting head of the KOM Anti-Terror Branch … was aware of the situation from the beginning and signed the falsified official document despite knowing the apprehension occurred in … province, committing forgery of an official document. Similarly, police officer … did not report information that could serve as evidence for another crime to the competent public prosecutor, and the other defendants knowingly signed the falsely prepared report while aware that they had left the province to intercept the drugs. Consequently, it was concluded that the defendants committed the forgery of official documents as alleged.”
The court accepted the acts as described in the indictment. The acceptance of this assessment was based on the evaluation of the out-of-scope defendants’ statements, which were considered inconsistent with the normal course of life and intended to evade criminal responsibility, giving them less weight than the defendants under review. The local court subsequently qualified the actions of the defendants as constituting the offense of forgery of official documents by a public officer, indicated the applicable statutory provisions in accordance with Article 61 of the TPC, and thereby established a conviction.
It is understood that the reasoned decision was drafted in accordance with Article 141 of the Constitution and Article 34 of the CPC No. 5271, taking into account Article 230 of the CPC, and that the reasoning and verdict paragraph include the matters set forth in Article 232 of the CPC.”
(Criminal General Assembly, 2022/47 E., 2023/80 K., 15.02.2023)
“…As a result of the appellate review of the convictions against the defendant … for the crime of unlawful search and against the victim-defendant … for unlawful search and the violation of the applicant …’s home inviolability;
Considering that, according to Articles 120/1 and 116/4 of the Turkish Penal Code No. 5237, the 8-year statute of limitations stipulated in Article 66/1-e of the same Code has elapsed from the interrogation dates of 13/06/2012 and 05/06/2012 until the date of review,
It was deemed necessary to annul the verdict. The appeal filed by the applicant’s attorney was thus upheld. Since the reason for annulment does not require a retrial, pursuant to Article 8 of Law No. 5320 and under the authority granted by Article 322 of the Code of Criminal Procedure No. 1412, the public lawsuits filed against the defendants are hereby DISMISSED due to the statute of limitations, in accordance with Article 223/8 of the Code of Criminal Procedure…”
(Supreme Court 2nd Criminal Chamber, 2020/20604 E., 2020/13117 K., 17.11.2020)
“…Article 257 of the Turkish Penal Code (TCK) is a general, subsidiary, and supplementary provision, requiring that for the crime of abuse of office to occur, the act must not be separately defined as a crime under the law. Considering that the defendant, who was a police officer at the time of the offense, unlawfully searched the plaintiff, who was sitting in the police department corridor with colleagues, three times due to a prior dispute over another incident, it was erroneously established that the act constituted a different offense without taking into account that the defendant’s conduct actually constituted the crime of unlawful search under Article 120 of the TCK, resulting in a mischaracterization of the offense in the written judgment…”
(Supreme Court 5th Criminal Chamber, 2015/11224 E., 2018/4526 K., 20.06.2018)
Lawyer. Gökhan AKGÜL & Lawyer. Yasemin ERAK
