Search Warrant

Legal Search | Izmir Criminal Lawyer Attorney Mustafa Yolcu

Search Warrant

In order to achieve the purpose of criminal procedure, a search conducted in a person's residence, enclosed areas, on their person, and in their belongings to obtain a hidden suspect and evidence is called a "judicial search." Since a search is a protective measure, general preconditions, including the condition of danger in case of delay, must be met. The purpose of a judicial search is either to apprehend a suspect or to seize reasons for suspicion and confiscate them for future use as evidence.

Judicial search, Code of Criminal Procedure’Judicial searches are regulated by Articles 116 and subsequent articles of the Turkish Penal Code, subject to certain limitations. These articles restrict various rights and freedoms, including the right to privacy, inviolability of domicile, bodily integrity, and personal liberty. Therefore, judicial searches should not be considered a simple protective measure. The legal admissibility of evidence obtained during a search is examined based on whether the search was conducted in accordance with proper procedure. If the conditions for a search are not met in the specific case, the evidence obtained becomes illegally obtained evidence from a criminal procedural standpoint.

In judicial searches conducted under criminal procedure regulations for the purpose of obtaining evidence or making an arrest, searches can be carried out anywhere, including residences and workplaces.

The legislator, CMK Article 116 requires the existence of reasonable suspicion to justify a search warrant. Reasonable suspicion is defined as "a suspicion that, when an ordinary person looks at the specific event, leads them to believe that 'there is a strong possibility that a crime has been committed here.'" Since the search violates constitutionally guaranteed rights such as the right to privacy and the inviolability of the home, conducting a search based on suspicion that is not supported by concrete facts in the ordinary course of life should be considered unlawful, and the evidence obtained should not be used as a basis for a judgment.

Evidence can be derived from statements obtained illegally from a suspect or from evidence obtained through an illegal house search. In such cases, there is evidence obtained illegally, either through a statement or a search, which cannot be used in the trial. It is not enough to simply not use evidence obtained through an illegal search; any evidence obtained through such an illegal search should also be considered illegal and therefore should not be used in the trial.

When issuing a search warrant, as with other protective measures, it is necessary that the search warrant be deemed necessary in the specific case, that it be apparently justified, and that the intervention be proportionate to achieve the purpose.

In established case law, when examining the lawfulness of a judicial search, the ECHR considers whether the conditions of Article 5/1 of the ECHR are met, whether the search is based on a legal ground, and whether the restriction of liberty is in accordance with the limitations prescribed by law. In many of its decisions, the ECHR has deemed a search to be in violation of the Convention if it is determined that a different security measure, which interferes less with rights and freedoms, could have been applied in the case, thus violating the principle of proportionality. In another decision, a search of a third party's residence in a matter subject to the Law on Misdemeanors was deemed disproportionate.

a. Authority Authorized to Issue Judicial Search Warrants

The authority to decide on a search warrant generally belongs to the judge. The implementation of the search warrant only through a judge's decision is a requirement of the rule of law. As emphasized in numerous decisions of the Constitutional Court, a state governed by the rule of law is one where the law prevails in all its activities. In this context, the state should not make its citizens live in constant fear of being detained, interrogated, or having their homes or workplaces searched.

“In cases where delay would be detrimental”"Law enforcement officers may conduct searches with the written order of the Public Prosecutor, or, if the Public Prosecutor cannot be reached, with the written order of the law enforcement officer in charge."CMK Article 119/1; Regulation Article 7/2). The law enforcement officers in question are the gendarmerie, police, coast guard, and customs enforcement officers; and the law enforcement officer is the commander of the law enforcement unit that is authorized and responsible for the matter (Regulation Article 4). However, the law and established practices...

b. Judicial Search Warrant

A search warrant or order must clearly state the act constituting the reason for the search, the person to be searched, the address of the residence or other place to be searched or the items to be searched, and the period during which the warrant or order will be valid.CMK 199/2)

A search warrant must be in writing. The written nature of a search warrant or order serves as a guarantee of fundamental rights and freedoms. When issuing a search warrant, the judge must clearly state what is being searched for, who is being searched, the crime to which the search relates, the duration of the search, and finally, if a residence, workplace, or other place is being searched, the location. This ensures that the limits of the search authority are fully defined. Otherwise, if the scope of the search is determined outside the scope of the alleged crime, the principle of protecting the private life of the person concerned will be violated. In this context, a general, lump-sum search warrant is unlawful.

c. Execution of Judicial Search

Judicial search warrants are executed by law enforcement officers. To conduct searches in residences, workplaces, and other enclosed spaces without the presence of the Public Prosecutor, two individuals from the local council or neighbors must be present. In searches conducted in the presence of the Public Prosecutor, the presence of witnesses is not mandatory. The presence of the prosecutor is sufficient; no one else is needed. In these cases, the prosecutor's presence is considered a guarantee. However, a court clerk must be present during a search conducted in the presence of the prosecutor.

During the state of emergency, regulations were introduced stating that "In cases where delay would be detrimental, searches may be conducted in residences, workplaces, and closed areas not open to the public with a written order from the public prosecutor," and "To conduct searches in residences, workplaces, or other closed areas without the presence of the public prosecutor, a member of the local council or a neighbor must be present.".

d. Those Who May Be Present During the Search

The owner of the premises to be searched or the possessor of the property may be present during the search; if they are not present, their representative, a relative with the capacity to understand, a person residing with them, or a neighbor shall be present. In the cases indicated in the first paragraph of Article 117, the possessor, or if they are not present, the person to be called in their place, shall be informed of the purpose of the search before it begins. The presence of the person's lawyer during the search cannot be prevented.CMK (Article 120/3) Failure to state the purpose of the search, as well as incomplete or inaccurate statements, render the search unlawful. In all these cases, law enforcement must provide information regarding the person's identity.

e. Documents to be Provided at the End of the Judicial Search

At the end of the search, the person subjected to the search is given, upon request, a document stating that the search was conducted in accordance with Articles 116 and 117, and, in the case indicated in Article 116, a document specifying the nature of the act under investigation or prosecution, a register containing a list of items seized or taken into custody upon request, and, if nothing justifying suspicion was found, a document stating this.CMK Article 121/1)

The results of a search must be documented in a report. This report must include the time and location of the search, a list of any items seized, and a copy of the report. This document is given to the person whose home was searched or to the owner. The search report must include the names and surnames of the law enforcement officers who conducted the search. However, in cases involving crimes related to terrorism, only the registration numbers of the law enforcement officers are included in the report, excluding their names and surnames.

The report is signed by those who participated in the search and those who were present. A copy of the report is given to the person concerned.

f. Time of the Search

As a rule, searches are conducted during the day. Except for certain exceptions, searches cannot be conducted at night in residences, workplaces, or other enclosed spaces.CMK Article 118/1) Night searches are not permitted in residences, workplaces, or other enclosed spaces. Exceptions include cases of flagrant offenses, situations where delay would be detrimental, and searches conducted to recapture a detained or arrested person who has escaped.

Article 4 of the Regulation on Judicial and Preventive Searches defines daytime hours as one hour before sunrise and one hour after sunset. Searches conducted outside these hours are considered night searches. As a rule, searches of residences conducted outside these regulated hours are prohibited. However, "a search that began during the day may continue into the night."“ ¹⁶

g. Searches Conducted at Military Bases

Searches in military areas are carried out by military authorities upon the request and with the participation of the public prosecutor. During the state of emergency, a regulation was introduced stating that "In military areas, searches and seizures may be conducted by judicial law enforcement officers with a judge's order or, in cases where delay would be detrimental, with a written order from the public prosecutor, without the participation of the public prosecutor." Military personnel will be subject to general provisions regarding searches conducted outside military areas.

h. Searches Conducted at the Law Office

Due to the importance of the profession practiced by lawyers, searches of their offices are specifically regulated by law. Article 130 stipulates that lawyers' offices can only be searched with a court order, and only in relation to the incident specified in the order, under the supervision of the public prosecutor. The head of the bar association or a lawyer representing the bar association must be present during the search. Searches conducted in lawyers' offices without the presence of the public prosecutor and the head of the bar association or a lawyer representing the bar association are unlawful.

The European Court of Human Rights has emphasized in its judgments that searches of law offices conducted with the aim of obtaining possible evidence without a concrete reason for the search are contrary to the Convention. Furthermore, in the Kolesnichenko/Russia case, it was stated that even if witnesses are present during a search of a law office, their lack of legal training makes them insufficient, and that it is important for impartial witnesses with legal knowledge to be present during the search.

With the latest regulation that will be valid during the state of emergency, a change has been made as follows: "Search and seizure can be carried out by judicial law enforcement officers in law offices with a judge's decision or, in cases where delay would be detrimental, with a written order from the public prosecutor, without the participation of the public prosecutor. The president of the bar association or a lawyer representing him must be present during the search and seizure; however, the second and third paragraphs of Article 130 of Law No. 5271 shall not apply." (Decree Law 668/3i)

If, during a search, the lawyer, the bar association president, or the lawyer representing them claims that the information or documents to be seized relate to the professional relationship between the lawyer and the client, the seized items are placed in a separate envelope and sealed. A decision regarding these items is made within 24 hours by the Magistrate during the investigation phase, and by the judge or court during the prosecution phase.

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